The Labour Relations Act was drafted to recognise the labour rights of illegal immigrants as well, said one of its drafters, Andre van Niekerk, on Thursday.
Van Niekerk was being interviewed by the Judicial Service Commission (JSC) for a permanent Labour Court spot.
His statement confirmed an earlier legal opinion reported in the Mail & Guardian by senior counsel advocate Gilbert Marcus, given at the behest of the Commission for Conciliation, Mediation and Arbitration (CCMA) director Nerine Kahn.
In that opinion Marcus effectively paved the way for the statutory body to extend its services to illegal immigrants.
Van Niekerk was one of four candidates interviewed by the JSC for three vacancies at the court tasked exclusively with adjudicating labour disputes. The other candidates were magistrate Hamilton Cele, advocate Jacobus Nel and attorney Sungaree Pather.
Referring to the recent case of a sex worker only known as Kylie who tried to take her employer to task after being fired for not providing oral sex to clients, Van Niekerk told the commission that such a right did not extend to cases such as Kylie’s.
”I have always maintained that this right does not extend to illegal activities,” he said.
Acting Judge Halton Cheadle ruled in the Kylie case — in line with Marcus’s legal opinion — by acknowledging the existence of an employment contract, but found that the labour legislation did not offer her protection due to the illegal nature of her job.
Van Niekerk later on Thursday agreed with Labour Appeals Court Judge President Raymond Zondo, who was quizzing him, that a call for new legislation to clarify the jurisdiction of his court had fallen on deaf ears.
”Unfortunately that call has not been heeded at all,” he said.
Zondo referred Van Niekerk to various cases such as the one involving Nelisiwe Chirwa, who had approached the high court after being fired by her employer, Transnet, instead of following the normal CCMA route to deal with disputes.
This practice, Van Niekerk told the commission, was leading to ”forum shopping” by litigants. It has been discouraged by the Constitutional Court.
He said he supported calls similar to the ones made by the African National Congress at its watershed Limpopo conference last year that the Labour Appeals Court be integrated into the Supreme Court of Appeal and the Labour Court into the various high court divisions, possibly as a separate chamber.
The JSC was scheduled on Thursday afternoon to interview five candidates for two vacancies on the Pretoria High Court and would then enter into deliberations on complaints that had been launched against judges.
The commission was not expected to discuss the complaint against Cape Judge President John Hlophe. This was confirmed by JSC spokesperson advocate Marumo Moerane.
Deliberations on complaints will also be held on Friday afternoon and candidates will be interviewed for two vacancies on the Transkei Provincial Division and the Free State Provincial Division respectively.
The hearings are scheduled to end on Friday.