Professor Paul Benjamin has graciously consented to allow GilesFiles to reproduce (perhaps a word that should also be banned?) his tongue in cheek (oops) contribution to the SASLAW September 2008 Newsletter in response to comments and emails that emanated (oops) from GilesFiles last year. (See Dissatisfied sex worker: Goes empty handed again).

Note: Judgment of Halton Cheadle reversed on appeal to the Labour Appeal Court on 28 May 2010 per Davis JA.

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IMPORTANT LABOUR LAW ANNOUNCEMENT: CIRCULATE TO ALL MEMBERS OF YOUR ORGANISATION*

The Kylie case, in which a dismissed sex worker brought an unfair dismissal claim against her former employer, is one of the most publicised labour law cases of recent times.    South Africa’s best-known labour lawyer, Halton Cheadle, sitting as an acting judge of the Labour Court, held that Kylie was not entitled to unfair dismissal protection because Parliament has retained the criminal prohibition on sex work.    Legal and press commentary on the case have been accompanied by headlines such as “Kylie does not satisfy judge” and “Kylie does not get relief”.

Now, in a shock announcement, the Human Rights Commission and the Commission for Gender Equality have warned that labour law commentators and others, who use the Kylie decision as an opportunity to prove (on a balance of probabilities) that they have a sense of humour, are in violation of some and/or all of the rights in the Bill of Rights and/or one or more other statutes or laws and/or international conventions and/or good taste.

SASLAW, the trade union of labour lawyers, has endorsed this position, saying that commentators who want to make jokes should do so about something genuinely funny like the labour law jurisprudence of the Supreme Court of Appeal or the fact that you still have to wear gowns to court and call judges “m’lord” and “m’lady”.

The high profile nature of the Kylie decision has prompted other judges to overcome their traditional reluctance to comment on decisions of other courts.    Judge Albie Sachs of the Constitutional Court (echoing his minority judgment in the Sidumo matter) has said that he agrees and disagrees with the decision but is waiting to see whether the Kylie tee-shirt is funny in terms of the Laugh it Off test.

Cape Judge-President (on special leave) John Hlophe says that he did not seek to influence the outcome of the case but has asked the Minister of Justice’s permission to make a Kylie Shiraz at his winery.    The Minister is considering his request but has declined to give evidence on whether Kylie’s relationship with her employer (or anybody else) had broken down.

The Minister is also rumoured to be taking legal advice whether she has a “passing off” claim on the basis that Kylie’s employer trades under the name of Brigitte’s.

Judge Nkola Motata’s remarks were recorded on a cell-phone but are largely incomprehensible.    Judge Dennis Davis was unusually non-committal, saying: “you be the judge”.  He was speaking in his capacity as Judge President of the Competition Appeal Court.  However, more highly-rated competition judges from the SA Idols show were unimpressed:

“They keep going on about Kylie not satisfying the judge; who do they think they are: Mick Jagger?”

Other high-profile personalities have expressed their views on the topic.   Jacob Zuma’s legal team asked whether the judge took a shower after making the decision.  However, Zuma’s senior counsel declined to comment in case he became a judge and had to sit in an appeal in the matter as Kemp J Kemp J.  The ANC Youth League denied that any of its leaders had said they would kill for Kylie and/or Cheadle AJ but added that if they had done so it was meant metaphorically and that they would not apologise or drop their call for an early election.

The former Western Cape provincial government denied that it resigned over the issue but added that the former Governor of New York had.  Elsewhere in the USA, George Bush refused to comment until Dick (presumably Cheney) had briefed him.  Commentators noted that Bill Clinton was a stronger supporter of Kylie than Hillary was, but that Barack Obama had refused to consider him either as a running (or swimming) mate.

The controversy has taken on a sporting turn.  Cricketer Shane Warne denied sending a bawdy sms to Kylie, saying that “in Australia we have our own Kylies”.  He added that Kylie could become South Africa’s greatest stroke-player since Kevin Pietersen.  High profile advocate and cricket administrator Norman Arendse SC dismissed this as typical Warne spin that would not bowl anybody except Daryl Cullinan.  Arendse denied that Kylie would be opening for the Proteas and said that he would not drop Herschelle Gibbs (or John Smit) for Kylie.

Jimmy Manyi of the Employment Equity Commission said that the case confirmed his view that white women should not benefit from affirmative action and that white men (including Victor Matfield) can’t jump.  The SA Olympic Committee did not comment because it was too busy commenting on why Team South Africa was no good at anything except the long jump and commenting.

Conclusion

From now on it will be contempt of the Labour Court to use any of following words, phrases, clauses or other grammatical constructions in any writing about the case –

  • Oral argument
  • Oral agreement (except one permitting a judge to do private work)
  • Hand down
  • Hand up
  • Judgment a blow to ……
  • Organ (unless preceded by the word “church” or followed by the words “of state”)
  • Performance
  • Unprotected
  • Judge’s firm stand
  • Penetrating reasoning
  • Seminal decision
  • Discharge
  • We won’t take this lying down
  • 2010
  • Relief (unless preceded by “grant”)
  • Hugh Grant (even if preceded by “relief”)

The HRC and CGE are mindful that they do not have the capacity to fathom the depths of the depravity to which labour law commentators are likely to stoop to be witty.  Accordingly, decent-minded labour lawyers and other protectors of the rule of law are invited to submit additional words and phrases that should be banned from use.  Once a complete list is prepared, all labour lawyers and consultants (including those registered as trade unions or employers’ organisations or both) will be required to purchase a copy from their favourite legal stationers and stick it up with prestik in their kitchen next to a summary of the BCEA.  The Pan South African Language Board will translate the poster into all other official languages plus Afrikaans, Portuguese and (at the request of the Minister of Labour) Chinese.  The Minister added that his health and safety inspectors were hoping to inspect Brigitte’s during working hours.

When asked whether he thought the criticism of Judge Cheadle was fair, an anonymous legal source said:  “That’s what happens when you lay down the law.  He should have seen it coming.  Just because you write an Act you should not think you know what it means”.  He added that many lawyers were upset that the judge had taken into account what Parliament had said when everyone knows that lawyers know better.

A well-placed legal source (who denied being a deep throat in Kylie’s team) pointed out that this was probably the first time that Kylie’s silk had lost an unopposed matter.  He added that unless there was more vim (perhaps Wim?) in the appeal they may have to lay down the gauntlet.  Another lawyer said something in Latin which sounded very profound.

And what can organised sex workers do, going forward?  If the appeal does not come off, they could approach NEDLAC for recognition as a “social partner” and request a soft law like a code of good practice.  They could also approach a chief whip in Parliament for a private member’s Bill to change their legal position.

But, as usual, lawyers have the last word.  The Association of Personal Injury Lawyers has said it will only support changes to the law on sex work if payments are made directly to attorneys.  They added that they would sue the pants off anyone who suggested that this might be why attorneys are called solicitors in some countries.

You have been warned.

Paul Benjamin

wanted to be a satirist until he discovered that the law was funnier

* Any resemblance between any character mentioned in this article and any person living or dead, it should be emphasised, is metaphorical rather than literal – Editor of SASLAW.

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