EMPLOYMENT WITHOUT RIGHTS? Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC); and “Kylie” v CCMA 2008 9 BLLR 870 (LC)

The cases of Discovery and Kylie provide interesting comparative material for a number of reasons. Firstly, both cases involved parties who were guilty of contravening aspects of South African statutory law. Secondly, in both cases the individuals concerned sought protection as employees in terms of the Labour Relations Act, 1995 (hereinafter “the LRA”). Thirdly, the individuals in both cases were members of groups which have previously been acknowledged as being vulnerable in South African society. Finally, and perhaps most interestingly, the Acting Judges of the Labour Court who presided over the two cases were both aware of the similarity of the casesand nevertheless managed to arrive at contrasting conclusions − despite both courts having held that a valid contract of employment was not a prerequisite for workers to acquire labour rights and that the individuals concerned were “employees” for purposes of the LRA. By conducting a legal analysis of both cases against the backdrop of the common law contractual principles traditionally applied to illegal activity and in the light of post-Constitutional reflections on public policy, the authors aim to contextualise the significance of the two decisions for South African employment law.