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What about an assassin contracted to kill another person and who is then not paid for the job – could such a person come to the CCMA to complain?I am, of course, not neutral in this debate as I strongly believe in at least the decriminalisation of sex work.As you read this, a small group of intrepid, pink-nosed Brits are creeping through the Gambian jungle, dodging crocodiles and cobras, in the hope of spotting the legendary "ninki-nanka".(OK, it sounds like a Goon Show plot, but bear with me.) This fabulously named creature is said by locals to resemble a giant reptile, up to 30 feet long and dwelling in the murk of the mangrove swamps.Unlike an assassin, say, who should be excluded from LRA protection because he/she is infringing on the fundamental rights of third party victims, a sex worker should be protected exactly because she is not harming anyone or infringing on the fundamental rights of anyone in society and because she is being punished because of the moral prejudices of the majority of South Africans.This might sound radical to some, but then section 39(2) requires a radical rethink of traditional common law principles because judicial officers must now give effect to the fundamental principle that where at all possible the inherent human dignity of everyone living in South Africa should be respected and protected.It could be something as simple as a run away script or learning how to better use E-utilities, for more efficient work such that your work does not impact the ability of other researchers to also use our site.To restore access and understand how to better interact with our site to avoid this in the future, please have your system administrator contact [email protected]

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But it is the transformation that the Constitution requires of us.

This meant that the LRA could not apply to her because: ‘Given the status of the common law on the enforceability of illegal contracts be they employment contracts or otherwise (it is trite that the employment contract forms the basis of the employment relationship between the parties) and the fact that the applicant was employed to perform illegal work and did; should the CCMA resolve such disputes it would then place itself in a position where it would be making policy decisions for the legislature.

Furthermore, the CCMA Commissioner argued that although sex workers are not explicitly excluded from protection by the LRA, this cannot mean that they are included either, because it would mean that any person who is paid by another to undertake an activity which is criminalised would be able to access the protection of the LRA.

The origins of this arrangement lay in 19th-century Berlin, and Humboldt University, founded in 1810 in the aftermath of Napoleon’s conquest of Prussia.

The African university makes its appearance later in the 19th century.

The failure by the CCMA Commissioner to do this, suggests a larger failure of commissioners and judicial officers to come to grips with the transformative power of the Constitution.

Instead of giving effect to section 39(2), such commissioners and judicial officers often still fetishise the common law and fail to accept that the common law is now subject and subordinate to the Constitution and specifically to the values enshrined in the Bill of Rights.

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But even if sex work remains criminalised, there are good constitutional reasons why the CCMA Commissioner got it wrong.

Most notably, section 23 of the Constitution guarantees for everyone a right to a fair labour practice while section 39(2) of the Constitution requires any tribunal when it interprets legislation to take into account the “spirit, purport and objects” of the Bill of Rights.