Economics of Illegal Work and Illegal Workers (Immigrants): Are They Protected under South African Labour Law and the Constitution, 1996?

• Author: Mashele Rapatsa
• Position: Lecturer, School of Law, University of Limpopo (South Africa). PhD in progress, 'Globalisation Studies and Humanitarian Action' University of Groningen, Netherlands
• Pages: 75-86

JURIDICA

77

Economics of Illegal Work and Illegal

Workers (Immigrants): Are They Protected

under South African Labour Law and the

Constitution, 1996?

Mashele RAPATSA

1

Abstract: This article analyses whether prostitution (illegal work) and illegal immigrants have access

to the protective ambits of statutory framework regulating employment relations. Its objective is to

examine the scope of labour law, considerate o f ever changing trends in the modern world of work. It

utilizes the two notable precedents founded in Kylie v CCMA and Discovery Health v CCMA. This is

considerate of inherent dynamics in contemporary labour relations where the majority of workers

have been displaced into grey areas that offer little or no protection, thus rendering workers

vulnerable to exploitation. The article highlights a rising tension arising out of exploitative labour

practices and socio-economic factors, and the need for labour law to respond. It has been found that

courts have creatively invented strategic methods that have successfully aided efforts of protecting

vulnerable workers engaged in economic activities under precarious circumstances. This is to the

extent that the Constitution, 1996 and th e Labour Relations Act 66 of 1995 have been interpreted in a

manner that enhances worker protection, which fulfils the purpose for which labour law was enacted.

Keywords: Illegal work(ers); democracy and socio-economic development; right to fair labour

practices; employee; social transformation

1. Introduction

Society yearns for sound, stable and harmonious social and economic relations

among the people. This constitutes an indispensable ideal for greater social order

across all spectrums of society. It is an all-encompassing social philosophy which

is also applicable to those who engage in a variety of economic activities, work

which is mainly regulated through labour laws. Thus, the Constitution of the

Republic of South Africa, 1996 (hereinafter, the Constitution, 1996), as per its

1

Lecturer, School of Law, University of Limpopo (South Africa). PhD in progress, “Globalisation

Studies and Humanitarian Action” University o f Groningen, Netherlands. Address: Marktstraat 2,

9712PC Groningen, Tel.: +31618672558. Corresponding author: m.j.rapatsa@rug.nl

AUDJ, vol. 11, no. 3/2015, pp. 77-88