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6.1 In South African law, prostitution is currently mainly dealt with in terms of the Sexual Offences Act,[389] although other legislation, such as the Aliens Control Act,[390] also contains provisions that are peripherally relevant to prostitution.[391] In addition, municipal by-laws play an important role in the legal control of prostitution. Due to the focus on adult prostitution, this discussion does not include reference to the current Child Care Act or the proposed Child Care Bill. However, this legislation will be dealt with in Chapter 9 below.
6.2 South African legislation on prostitution has largely followed English statutes.[392] Milton and Cowling explain that in1868 the Cape government enacted the Contagious Diseases Prevention Act, which compelled prostitutes to take an examination for venereal disease.[393] The 1882 Police Offences Act[394] penalised so-called ‘common prostitutes’ and ‘nightwalkers’ loitering in public places for purposes of prostitution or solicitation.[395] In 1893 legislation aimed at the prevention of child prostitution was also enacted by the Cape Parliament.[396]
6.3 The discovery of diamonds and gold brought a flood of prostitutes to the Transvaal, which in turn led to the enactment of a series of immorality laws prohibiting prostitution and brothel keeping.[397] This legislation again caused prostitutes and pimps to migrate to the Cape, Natal and the (then) Orange Free State, which promptly resulted in the enactment of legislation in these colonies aimed at prohibiting brothels, the procurement of women as prostitutes and living on the earnings of prostitution (’pimping’).[398] It is significant to note that the legislation did not penalise acts of prostitution as such, although ‘white’ prostitutes were prohibited from accepting men who were not white as clients.[399]
6.4 In 1957 the various laws regulating sexual acts or relations were repealed and re-enacted in a consolidating Immorality Act.[400] This Act, subsequently renamed the ‘Sexual Offences Act’,[401] is still in force and contains the current provisions regulating various aspects of prostitution. The Act penalises (inter alia) the keeping of brothels, the procurement of women as prostitutes, soliciting by prostitutes, and living off the earnings of prostitution.[402]
6.5 Until 1988, the Act did not prohibit prostitution as such. The introduction of section 20(1)(aA) however dramatically changed the legal position: this provision criminalized engaging in sexual intercourse or performing indecent acts for reward.
6.6 It is significant to note that this section was inserted in the Sexual Offences Act in 1988 following the judgment by the Appellate Division in S v H.[403] The (then) Immorality Act was amended pursuant to a report by a committee of the President’s Council that stated that the Committee accepted that prostitution unfortunately cannot be eradicated by measures under the criminal law.[404] The Committee, on the contrary, had evidence that penal sanctions do little, if anything, ‘to make a hardened prostitute abandon her way of life’. The Committee therefore took cognisance of the fact that the most effective way of combatting prostitution would be to deal with the public manifestations under the criminal law and ‘leave other manifestations to public opinion’.[405]
6.7 In spite of this finding, Parliament decided to criminalise the provision of sexual services for reward, resulting in the enactment of section 20(1)(aA). Milton notes that the parliamentary debates around this issue revolved around moral considerations.[406]
6.8 It is significant to note that in spite of the introduction of section 20(1)(aA), the Act still stops short of stating that it is an offence to be a prostitute.[407] The Act does not define the term ’prostitution’ either, although it relies on the concept in the construction of various offences.[408]
6.9 In the following section, the offences relating to prostitution created by the Sexual Offences Act will be discussed in some detail. Section 20(1)(aA), being the primary enactment, will be dealt with first; all other offences are discussed in the order of their inclusion in the Act.
6.10 Section 20(1)(aA) of the Act provides that any person who has unlawful carnal intercourse, or commits an act of indecency, with any other person for reward commits an offence. The penalty is imprisonment for a period not exceeding three years with or without a fine not exceeding R6 000 in addition to such imprisonment.[409]
6.11 The offence consists of the following elements:[410]
6.12 These elements will be discussed in more detail infra.[411]
6.13 Section 1 of the Act defines ‘unlawful carnal intercourse’ as ‘intercourse other than between husband and wife’. It should be noted that the Act does not criminalise all instances of unlawful carnal intercourse; such intercourse is only prohibited as a criminal offence when taking place under certain specific circumstances, i.e. unlawful carnal intercourse with young persons,[412] or when performed for reward.
6.14 Although the Act does not define the term ‘carnal intercourse’, Milton and Cowling explain that the term is generally understood to connote penetration of the female vagina by a male penis. Intercourse per anum would not be included in this definition.[413]
6.15 The term ‘act of indecency’, which does not find definition in the Act, has been developed through judicial interpretation. In S v C,[414] the court explained this as follows:
‘Something is indecent if it offends against recognised standards of decency. The applicable standards are those of the ordinary reasonable member of contemporary society’.[415]
6.16 The courts have accepted the dictionary definitions of ‘indecent’, namely ‘unbecoming; in extremely bad taste; unseemly; offending against propriety or decency; immodest; suggesting or tending to obscenity’.[416]
6.17 This interpretation implies that the term ‘indecency’ as employed in the Act has a rather amorphous meaning, which will change in contents as times and mores change. The court in S v C[417] acknowledged the difficulties inherent in this concept:
‘I bear in mind that opinions may widely differ as to whether or not any particular action is indecent.’[418]
6.18 The term ‘reward’ in ordinary language can encompass both a monetary reward and other forms of compensation with pecuniary value, for example, clothing, food or accommodation.
6.19 Milton and Cowling point out that the use of such a wide construction of the term ‘reward’ would bring within the ambit of the prohibition ‘not only the professional prostitute receiving money from a client but also a mistress or lover receiving some gift or other recompense in consideration for sexual intercourse’.[419] For this reason, it is more satisfactory to limit the understanding of ‘reward’ as used in this context to ‘financial reward’.[420]
6.20 As stated earlier, the Anglo-American approach to prostitution regarded it as neither necessary nor appropriate to prohibit the occupation of prostitution.[421] Engaging in sexual intercourse for reward was accordingly not prohibited by penal sanction, and this approach also prevailed in South African legislation until 1988. However, as discussed supra, the amendment of the Act in 1988 to introduce section 20(1)(aA) changed this.
6.21 It should be noted that although section 20(1)(aA) effectively prohibits the core function of the prostitute’s work, it does not penalise ‘being’ a prostitute. This distinction is of more than academic significance, especially in the sphere of law enforcement. A person cannot be arrested for being known to the police as a prostitute – there has to be at least a reasonable suspicion that he or she had engaged in sexual intercourse or had performed an indecent act for reward (at a specified time with a specified person).[422] It is this aspect that makes enforcement of section 20(1)(aA) relatively time-consuming and labour-intensive.[423]
6.22 The wording of this section is broad enough to include any person (a spouse or lover) who receives a reward for engaging in sexual intercourse or an indecent act. Milton and Cowling are of the opinion that this literal meaning is too broad, and the provision should be strictly construed so as to be confined to those who ‘habitually and indiscriminately’ engage in sexual acts for reward.[424]
6.23 However, in S v C[425] the court (per Van Dijkhorst J) expressly rejected this proposed narrow interpretation:
‘The wording of section 20(1)(aA) does not limit its offenders to the category of professional prostitutes. It clearly includes all who for reward have unlawful carnal intercourse or commit acts of indecency, the novice as well as the hardened streetwalker. Where the legislature intended to refer to prostitutes and their profession it did so explicitly, as is evidenced by ss 9(1)(b), 10(b) and (c), 12(3), 14(2)(a), 14(4)(a), 20(1)(a) and 21(3).’
6.24 There is some debate as to the ambit of section 20(1)(aA). Is it only the person who accepts the reward (the prostitute) who commits an offence, or also the client (the person who gives the reward)? According to Milton and Cowling, the provision only penalises the actions of the prostitute, and not the client. The authors base this conclusion on the wording of the section and say the subject is the person who performs a sexual act for reward ‘with any other person’. The authors therefore content that it is the person who receives the reward who commits the offence, and the person who gives the reward (the ‘other person’) is not the subject of the prohibition.[426]
6.25 The Commission has already pointed out in its Discussion Paper 85 that it regards this aspect of the criminal prohibition of prostitution as a manifestation of the hypocrisy of a society which condemns and penalizes the actions of prostitutes, while their customers, who are ultimately responsible for the prevalence of this phenomenon, have neither slur, nor stigma, nor prosecution to fear.[427]
6.26 Milton and Cowling explain that prior to 1885, brothels were allowed in terms of English legislation, unless they qualified as so-called ‘bawdy houses’.[428] Likewise, South African colonial common law did not object to brothel keeping, unless the manner in which the establishment was kept amounted to a public nuisance.[429] However, from 1899 legislation was enacted in the Transvaal, Cape and later the other colonies to prohibit brothels.[430] These provisions were repealed and essentially re-enacted in sections 2 to 8 of the Sexual Offences Act.
6.27 Section 2 of the Act provides that any person who keeps a brothel shall be guilty of an offence. The penalty for contravention of this section is imprisonment for a period not exceeding three years with or without a fine not exceeding R6 000 in addition to such imprisonment.[431]
6.28 The offence consists of the following elements:
6.29 This element requires that the accused must have exercised some degree of management, supervision or control or a more or less permanent character.[432] The owner of the premises is not necessarily ‘keeping’ it: he or she must, in addition, control or supervise the operation of the brothel.[433]
6.30 Section 3 of the Act provides for an extension of the concept of ‘keeping’ by enumerating circumstances where certain persons (who may somehow be associated with the brothel but who would not normally be considered to be ‘keeping’) are deemed to be keeping the brothel.
6.31 The section lists the following persons:[434]
(a) any person who resides in a brothel unless he or she proves that he or she was ignorant of the character of the house;
(b) any person who manages or assists in the management of any brothel;
(c) any person who knowingly receives the whole or any share of any moneys taken in a brothel;
(d) any person who, being the tenant or occupier of any house or place, knowingly permits the same to be used as a brothel;
(e) any person who, being the owner of any house or place, lets the same, or allows the same to be let, or to continue to be let, with the knowledge that such house or place is to be kept or used or is being kept or used as a brothel;
(f) any person found in a brothel who refuses to disclose the name and identity of the keeper or manager thereof; or
(g) any person whose spouse keeps or resides in or manages or assists in the management of a brothel unless such person proves that he or she was ignorant thereof or that he or she lives apart from the said spouse and did not receive the whole or any share of the moneys taken therein.
6.32 It is clear from the above that even persons who are not physically present on the premises or controlling, supervising and managing the premises may in terms of this section be deemed to be keeping the brothel.
6.33 The effect of section 4 of the Act should also be noted. This section provides that in prosecutions under the Act, the onus of proving that a house or place is to be kept or used (or is being kept or used) as a brothel to the knowledge of the owner will be on the prosecution, provided that –
(a) if it is established to the satisfaction of the court that, having regard to the locality and accommodation, the rent to be paid or paid for the house or place is exorbitant, the onus shall be on the accused to prove that he was ignorant that such house of place is to be kept or used or was kept or used as a brothel; and
(b) proof of written notice having been given to the owner by a police officer not below the rank of sergeant or by two householders living in the vicinity of the house or place that such house or place is being kept or used as a brothel, shall be conclusive proof of knowledge on his part.
6.34 The Commission is of the opinion that these provisions clearly place a considerable onus on the accused person, which he or she would have to discharge in order to avoid conviction. For this reason, the provisions (and the ‘presumptions’ contained therein) may not pass constitutional scrutiny.[435]
6.35 A ‘brothel’ is defined in the Act as ‘any house or place kept or used for purposes of prostitution or for persons to visit for the purpose of having unlawful carnal intercourse or for any other lewd or indecent purpose.[436] The concept of a ‘place’ is further defined as including ‘any field, enclosure, space, vehicle, or boat or any part thereof’.[437] The Act therefore designates a house or place (as defined in the extended sense) as a brothel when it is kept or used -
(a) For purposes of prostitution;
(b) For persons to visit for purposes of unlawful carnal intercourse; and
(c) For persons to visit for any other lewd or indecent purpose.
6.36 It is necessary for the State to prove firstly that prostitution occurred at the house or place,[438] and secondly that the establishment was kept or used for this purpose. This implies that a single isolated act of prostitution (or even a few isolated acts) will not qualify a house or place as a brothel.[439]
6.37 Milton and Cowling explain that this rather quaint provision seems to be aimed at what English law termed ‘bawdy’ or ‘disorderly’ houses:
‘Bawdy houses were places where “dissolute and debauched persons” were drawn together and by their behaviour disturbed the public peace, thereby becoming a public nuisance and liable to prosecution as such’.[440]
6.38 The authors further note that it is not every house or place where unlawful carnal intercourse occurs that will be regarded as a brothel, but rather those kept or used for purposes of ‘carnal connection for the purposes of prostitution’.[441] (A broad interpretation of this phrase would entail that the house of an unmarried couple living together and regularly having what according to the current version of the Act amounts to ‘unlawful carnal intercourse’[442] with each other would qualify as a ‘brothel’.)[443]
6.39 This provision extends the traditional meaning of the term ‘brothel’ (viz a place visited for purposes of obtaining sexual intercourse) to places where sexual activity other than conventional sexual intercourse takes place.[444] Therefore, masturbation of men in massage parlours has been held to constitute a ‘lewd and indecent act’, thus bringing the establishment within the purview of the definition of a ‘brothel’.[445] Similarly, performances involving female nudity or indecent poses were sufficient to result in the place being considered a brothel.[446]
6.40 Mens rea is an element of the offence. According to Milton and Cowling, this implies that the State must prove that the accused knew, or at least foresaw, that the house or place was a brothel as defined in the Act.[447]
6.41 The Act contains a number of additional measures aimed at the curtailment of brothel keeping. According to section 5 of the Act, any contract to let a house or place to be kept as a brothel shall be null and void. Section 6 provides that any contract of letting and hiring of any house or place that subsequent to the conclusion of such contract becomes a brothel will, as from the date of such event, become null and void. If the owner can provide proof that he or she was ignorant of the fact that the house or place was kept as a brothel, he or she will be entitled to recover the rent up to the date upon he or she became aware that the house or place was being kept as a brothel. The owner of a house kept as a brothel will also be entitled to apply to the magistrate of the district where such house is situated for the summary ejectment of any person who may be keeping the house as a brothel. The magistrate will be entitled after enquiry to order the summary ejectment of such person.[448]
6.42 Section 8 of the Act sets out measures that may be taken by to effect the arrest of the brothel keeper or to obtain a warrant for entry and search of the brothel. If sworn information is placed before a magistrate by certain persons or organisations that any house of place is being kept or used as brothel, the magistrate may issue a warrant for the arrest of the person alleged to be the brothel keeper,[449] or may issue a warrant authorising entry into and search of the house, as well as seizure of certain items.[450] The persons entitled to place such information before the magistrate are –
(a) at least two ‘householders of good repute’ whose dwellings are in the vicinity of the brothel;
(b) a police officer not below the rank of sergeant;
(c) a welfare officer employed by department of state responsible for Health and Welfare, a local authority or a welfare organisation registered under the National Welfare Act 100 of 1978.
6.43 The warrant referred to above may authorise any police officer not below the rank of sergeant to –
(a) enter the brothel at any time for the purpose of ascertaining the name and identity of the brothel keeper;
(b) interrogate, and to demand the name and address of, any person found in the brothel; and
(c) demand, search for, and seize any account book, receipt, paper, document or ‘thing’ likely to afford evidence of the commission by any person of an offence under the Act.[451]
6.44 In terms of section 8(2) any person found in the brothel who, when called upon to do so by the police officer conducting the search, refuses to furnish his or her name and address or furnishes a name or address which is false in any material particular or refuses to disclose the name or identity of the brothel keeper of such house or place or to produce any book, receipt, paper, document or thing that he or she has in their possession or custody or under his control, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding R1 000 and in default of payment to imprisonment for a period not exceeding six months.
6.45 ‘Procuring’ is the obtaining or recruitment of persons for purposes of their working as prostitutes. During the late 19th century, legislation was enacted in England aimed at the eradication of the so-called ‘white slave trade’.[452] The provisions of the Victorian statute were subsequently replicated in South African legislation,[453] and although the relevant provisions of the Act have undergone some modification, being no longer expressly directed at the protection of woman who are not prostitutes, they are still essentially based on the English statutory measures.
6.46 Offences relating to procuring are contained in sections 9 and 10 of the Act. Since section 9 specifically relates to procuring of children, this discussion will refer only to section 10 and other related provisions of the Act.[454] Section 10 of the Act reads as follows:
Procuration
Any person who-
(a) procures or attempts to procure any female to have unlawful carnal intercourse with any person other than the procurer or in any way assists in bringing about such intercourse; or
(b) inveigles or entices any female to a brothel for the purpose of unlawful carnal intercourse or prostitution or conceals in any such house or place any female so inveigled or enticed; or
(c) procures or attempts to procure any female to become a common prostitute; or
(d) procures or attempts to procure any female to become an inmate of a brothel; or
(e) applies, administers to or causes to be taken by any female any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower her so as thereby to enable any person other than the procurer to have unlawful carnal intercourse with such female,
shall be guilty of an offence.
6.47 In terms of this section, procurement of any woman for the following purposes or through the following means constitutes a criminal offence:
An analysis of the different components of section 10 of the Act follows.
6.48 Section 10(a) of the Act provides that it is an offence for any person to procure or attempt to procure any female to have unlawful carnal intercourse with any person other than the procurer or in any way to assist in bringing about such intercourse. The elements of the offence are that the accused procured a female to have unlawful sexual intercourse.
6.49 The term ‘procuring’, in its ordinary meaning, means ‘to produce by endeavour’, and thus involves an element of persuasion, inducement or influencing.[455] It is therefore essential for the accused to have played some active part in ‘obtaining’ the woman. Where, for example, the woman willingly engages in intercourse (and therefore does not have to be persuaded), there can be no procurement. Similarly, mere acquiescence on the part of the accused procurer in the intercourse taking place would not amount to procuring.[456]
6.50 The prohibition extends beyond the act of procuring to also include assisting ‘in any way’ to bring about the intercourse with the procured woman. This is aimed at penalising anyone who furthers the procurement or helps to bring it about.[457]
6.51 Since the provision expressly refers to the procurement of a ‘female’, it follows that the offence will not be committed if the procured person is a man. It should be noted that in contrast with section 9 of the Act, there is no age limit set out in section 10: the offence can therefore be committed in respect of a woman of any age.
6.52 The object of procuring the woman must be for her to have unlawful carnal intercourse, and therefore the offence is not committed if the woman is procured in order to engage in immoral or indecent acts other than such intercourse.[458] The offence is committed only if the intercourse actually takes place, and also only if the intercourse takes place with someone other than the procurer.
6.53 Section 10(b) of the Act provides that it is an offence to inveigle or entice any woman to a brothel for the purpose of unlawful carnal intercourse or prostitution or to conceal in any such house or place any female so inveigled or enticed. In addition, section 10(d) provides that it is an offence to procure or attempt to procure a woman to become an inmate of a brothel.
6.54 The offence created by section 10(b) of the Act takes two forms: (a) obtaining females for prostitution in brothels and (b) concealing the female in the brothel. ‘Enticing’ has been defined as ‘alluring’, ‘beguiling’ or ‘petitioning’, while ‘inveigling’ would have a related meaning suggesting an additional element of deception.[459] The prohibition of concealing a woman in a brothel is aimed at conduct that would ‘seek to prevent a female enticed into the brothel from being discovered and removed by family or officials’.[460] It is committed by concealing the female in a place in the house or place which is the brothel.
6.55 Section 10(c) provides that it is an offence for any person to procure or attempt to procure a woman to become a common prostitute. The ‘common prostitute’-element only will be discussed here.[461]
6.56 It should be noted that the offence is not committed by procuring a woman to have unlawful carnal intercourse, but rather by procuring her to enter the trade of prostitution.
6.57 The section specifies that the woman must have been procured to be a ‘common’ prostitute. Although there is no statutory definition for the term, it is understood to refer to persons who ‘habitually ply the trade of a prostitute’ as opposed to those who merely occasionally engage in prostitution.[462] It also follows that the offence is committed only if the woman concerned is not already a ‘common’ prostitute. Likewise, the offence is committed only if what the accused procured the woman for was ‘common’ prostitution.[463]
6.58 Section 10(d) makes it an offence for any person to procure or attempt to procure a woman to become an ‘inmate of a brothel’. In the absence of statutory definition, the term ‘inmate’ should be accorded its ordinary meaning. According to the Concise Oxford Dictionary[464] this term has the following possible meanings:
(a) an occupant of a hospital, prison, institution etc; or
(b) an occupant of a house, especially one of several.
6.59 It therefore seems to denote (especially if the first meaning above is attributed to the term) an element of imprisonment or loss of autonomy, and could thus refer to the situation where the procured woman is not in a position to leave such brothel of her own volition. It should be noted that is not required for the woman to become a prostitute, or to engage in unlawful carnal intercourse or acts of indecency. The mere fact of her being an ‘inmate’ would suffice.
6.60 Section 10(e) of the Act provides that it is an offence for any person to apply, administer to or cause to be taken by any female any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower her so as to enable any person other than the procurer to have unlawful carnal intercourse with her.
6.61 This offence is clearly aimed at the methods used by procurers to overcome resistance on the part of women being forced into prostitution. The offence is committed by the administration of substances that have the effect of rendering the woman incapable of putting up resistance against physical force. Milton and Cowling are of the opinion that the offence would also be committed by binding, strapping or holding down the woman or otherwise restricting her physical movements.[465]
6.62 The section in question states that the purpose of the procurement should be for a person to have unlawful carnal intercourse with a woman. Since this phrase does not refer to ‘unlawful carnal intercourse for reward’ or to prostitution as such, the offence would strictly speaking be committed once such intercourse takes place, irrespective of whether the ultimate purpose of the procurement is to bring the woman into prostitution. However, Milton and Cowling suggest a different interpretation of this section:
‘The gist of the offence is not, it is submitted, that the object of the accused’s actions is that sexual intercourse with the woman should be achieved. Rather it is that the stupefaction or immobilisation is to enable the woman to be taken into prostitution’.[466]
6.63 Section 12(1)(a) of the Act provides that it is an offence for any person to take or detain a woman against her will to or in or upon a house or place with intent that she may be unlawfully carnally known by any male, whether a particular male or not. The penalty is imprisonment for a period not exceeding 7 years.[467]
6.64 The element of ‘taking’ or ‘detaining’ requires that the accused performed some act amounting to either the transporting or conveying of the woman to the house or place in question. Alternatively, it requires that the accused’s actions amounted to depriving the woman of the ‘power or ability to depart from the premises’.[468]
6.65 Section 12(3) of the Act provides that the accused will be deemed to have detained a woman if he withholds any wearing apparel with intent to compel or induce her to remain in the place.
6.66 Milton and Cowling note that it is essential to allege and prove that the woman was either taken or detained against her will. If the woman went to the place voluntarily or remained there voluntarily the offence is not committed.[469] In this regard, a woman is presumed to be involuntarily at the place if she is under 16 years of age,[470] or, being between 16 and 21 years of age she was detained against the will of her parents or person having lawful care or charge of her.[471]
6.67 Similar to the provision in section 10(e), this section requires that the objective of the abduction or detention of the woman should be for her to be unlawfully carnally known by a man. This implies that the offence will be committed even where the intention is not stricto sensu to abduct the woman for purposes of forcing her into prostitution. Milton and Cowling again submit that it is not an element of the offence that intercourse should actually have taken place: the offence is complete once the taking or detention with the prescribed intent takes place.[472]
6.68 The provisions of section 12A(1), and also to some extent, of section 20(1)(c) of the Act are aimed at the operation of so-called ’escort agencies’. These are establishments that, for a fee, introduce a client to an escort who will accompany the client for an agreed period. In some (we submit, the majority of) cases, there is unequivocal consensus that such accompaniment is aimed at the client contracting with the ‘escort’ for sexual services.
6.69 Milton and Cowling note that the legislature has created the offence of facilitating prostitution specifically to penalise the owners or managers of ‘illegitimate’ escort agencies who provide prostitutes to their customers.[473]
6.70 Section 12A(1) of the Act provides that any person who, with intent or while he or she reasonably ought to have foreseen the possibility that any person may have unlawful carnal intercourse, or commit an act of indecency, with another person for reward, performs for reward any act which is calculated to enable such other person to communicate with any such person commits an offence. The penalty is imprisonment for a period not exceeding 5 years.[474]
6.71 Milton and Cowling explain that the accused commits this offence if he or she, with the prescribed mens rea, performs an act which is calculated to enable the client to communicate with the prostitute.[475] Whether the accused has performed such an act will be determined by the objective consideration of whether what was done was calculated to achieve communication of one party with the other.[476]
6.72 The Act provides no definition for the term ‘reward’ as used in this subsection. Milton and Cowling are of the opinion that in this context the reward must be of a pecuniary nature.[477]
6.73 The inclusion of the phrase ‘with intent’ requires that the accused should not merely know that the one party is a prostitute but should in addition intend (which includes ‘foreseeing’) that the parties will engage in sexual acts for reward.[478] This situation would arise where the accused provides the client with an escort on the explicit understanding that an act of prostitution will follow.
6.74 The section also includes the situation where there is no such explicit understanding, but where this possibility is not necessarily excluded. This appears to address the situation where the accused arranges for a person to be an escort without the question of sexual intercourse being raised but where the accused acts in a way that creates the possibility or opportunity for the parties to engage in sexual intercourse.[479] The formulation of ‘reasonably ought to have foreseen’ therefore places the form of mens rea required here into the realm of negligence in addition to intention.
6.75 Milton and Cowling explain that the embarrassment or nuisance that may be caused to members of the public who become the subject of the methods used by prostitutes or their agents to advertise their services has led to statutory prohibitions upon ‘soliciting’ in public.[480] English legislation enacted from 1824 onwards penalised various aspects of soliciting, and these legislative measures were also replicated in the South African colonies.[481] The different colonial statutes were eventually consolidated in section 19 of the Sexual Offences Act.
6.76 Section 19(a) of the Act provides that any person who entices, solicits or importunes in any public place for immoral purposes commits an offence. The penalty is a fine not exceeding R400 or imprisonment for a period not exceeding two years or both such fine and imprisonment.[482]
6.77 The offence consists of the following elements:
6.78 The actus reus of the offence consists in ‘enticing’, ‘soliciting’ or ‘importuning’. Milton and Cowling explain these terms as follows:
6.79 The offence is therefore committed by a direct physical invitation by the accused person, and the accused has to be physically present in the public place. Whether an advertisement of the prostitute’s availability will amount to a solicitation seems to depend upon whether the prostitute is present where the advertisement takes place.[486]
6.80 The soliciting may consist in words, gestures, signs or display. It is not necessary that the person solicited were aware of the solicitation.[487]
6.81 A public place in this context would be a place to which the public has access, whether of right or not.[488]
6.82 The requirement of ‘immoral purposes’ here refers to sexually immoral purposes.[489] The Appellate Division (as it then was) stated in R v H[490] that it is impossible to define immorality in this sense, and that each case must be evaluated on its own facts. Based on this dictum, Milton and Cowling submit that the purpose of the solicitation must be to commit an act of a sexual nature that, according to contemporary standards of morality, is considered to be immoral.
6.83 Although prohibitions of soliciting were traditionally directed exclusively at the prostitute or the pimp,[491] section 19(a) refers to ‘any person’. This implies that the prohibition applies to both to the prostitute and the pimp, and the question that arises is whether the client who solicits (either a prostitute or other persons) can also be charged with this offence.[492] The weight of authority seems to favour the view that persons who are not prostitutes, but wish to enter into a sexual transaction with a prostitute, commit the offence if they solicit another person (whether a prostitute or not) for this immoral purpose.[493]
6.84 Section 19(b) of the Act provides that any person who wilfully and openly exhibits him or herself in an indecent dress or manner at any door or window or within the view of any public street or place to which the public have access, commits an offence. The penalty is a fine not exceeding R4 000 or imprisonment for a period not exceeding two years or both such fine and imprisonment. This provision is implemented not only against prostitutes, but is also utilised for other instances of indecent exposure, such as ‘flashing’ (the ‘raincoat offence’).
6.85 There are circumstances in which it will not be unlawful to expose one’s person, for example, for reasons of personal safety[494] or in the course of artistic or educational activities. However, the inclusion of the term ‘wilfully’ in the section indicates that mere negligence will not suffice. The offence will only be committed where the accused intends to be seen.[495]
6.86 The requirement of ‘exhibiting’ implies the exposure of some part of the body. The term has been held to consist in a conscious display of the body for the purpose of it being viewed by members of the public.[496]
6.87 As stated above, the Act does not define the term ‘indecency’, and the term must be understood in terms of the standards of the ‘ordinary reasonable member of contemporary society’.
6.88 The offence can be committed –
(a) at any door or window;
(b) within view of any public street or place; or
(c) in any place to which the public have access.
6.89 This formulation implies that is not essential for the door or window where the exhibition takes place to be within the view of the public or a public place.
6.90 In relation to the second aspect, viz within view of a public street or public place, the test is whether the place is visible from the street or place: it is not essential that someone should have actually seen the accused.[497]
6.91 The term ’pimp’ may encompass a broad range of persons who are involved in certain activities relating to prostitution.[498] These may consist in a person acting in managerial capacity and also providing the prostitute with protection and clients.[499] The pimp may also manage the financial affairs of the prostitute and provide him or her with various other forms of support. It also occurs quite typically that landlords allow prostitutes to make use of their premises for visits by clients. The actions described above are generally penalised under the offence of ‘living off the earnings of prostitution’, since they are regarded as encouraging prostitution by making it possible for the prostitute to continue doing business.
6.92 The ambit of this offence was examined in detail in S v H.[500] The respondent in this matter was arrested following an incognito visit by three police officials to an escort agency, where they engaged the services of three escorts (including the respondent in casu).[501] The escorts accompanied the three police officials to a caravan park, and during the course of the evening, each of the women agreed to have sexual intercourse with her partner for reward. Money changed hands. At a stage when the women had undressed and were about to fulfil their side of the agreement, they were arrested.
6.93 The three women were charged with contravention of section 20(1)(a) of the Sexual Offences Act, and the state alleged that they had unlawfully and knowingly lived wholly or partially on the earnings of prostitution, ‘to wit, by receiving money for the purposes of sexual intercourse’.
6.94 The defence raised on behalf of the three accused pleaded was one of law, i.e. that the provisions of section 20(1)(a) of the Act were directed at persons who parasitically live on the earnings of a prostitute, and not the prostitute herself. The court a quo rejected this argument, and the accused were convicted. However, one of accused (the respondent before the Appellate Division) appealed to the (then) Transvaal Provincial Division of the Supreme Court, and her conviction and sentence were set aside.[502] The State in turn appealed against this finding.
6.95 On appeal, the Appellate Division (per Kumleben JA) examined the pre-Union enactments in the Transvaal, Cape, Orange Free State and Natal that preceded the introduction of section 20(1)(a).[503] Significantly, each of these referred to ‘every male person’[504] who knowingly lives wholly or in part on the earnings of prostitution ...’’ (with the exception of the Natal version, which applied to ‘every person’). Kumleben JA found that the reference to a male person made it clear that these enactments did not have the prostitute in mind, since a prostitute, in terms of the understanding prevailing at the time of promulgation of the Sexual Offences Act, was a woman.[505] (The court added that although the use of the word ‘prostitute’ in reference to a male person had subsequently come to be recognised, this was not the case at the time that the Act had been promulgated.)[506]
6.96 Section 20(1)(a) therefore had to be interpreted against this background. The court remarked that had the legislature, with the promulgation of the Sexual Offences Act and the repeal of its predecessors, intended to change the essential character of the offence, it would not have done so by merely extending the range of persons to which the offence applied. (The court’s finding was that the broadening of ‘every male person’ in the preceding enactments to ’every person’ in the Act merely served to indicate that the offence of parasitically living on the earnings of prostitution could similarly be committed by a woman.) The appeal was accordingly dismissed.
6.97 Section 20(1)(a) of the Act provides that it is an offence for any person knowingly to live wholly or in part on the earnings of prostitution. The penalty is imprisonment for a period not exceeding three years with or without a fine not exceeding R6 000 in addition to such imprisonment.[507]
6.98 Milton and Cowling note that this section is directed against the exploitation of prostitution.[508] The notion of ‘living on’ is construed widely so as to include not only that which ‘maintains the life of the recipient’ but also other purposes.[509] Proof of this element therefore requires evidence relating to the nature of the accused’s relationship with the prostitute, the accused’s personal domestic circumstances and the nature, source and amount of the accused’s income and cost of living.
6.99 In terms of section 21(3) of the Act, a person who is proved to have no visible means of support and who -
(a) resides in a brothel
(b) lives with a prostitute; or
(c) habitually is in the company of a prostitute -
is deemed to be knowingly living wholly or in part on the earnings of prostitution.
6.100 The effect of this presumption is not only to establish that the accused lived on the earnings of prostitution, but also that he or she did so knowingly.[510]
6.101 While the ‘earnings’ referred to here are usually received directly from the prostitute, it is sufficient that the money is given in consideration of the act of prostitution and can therefore be given directly to the accused by the client of the prostitute.[511]
6.102 Milton and Cowling submit that the concept of earnings is not confined to the wages for the service rendered, but should be more widely construed as ‘profits or income produced by prostitution’.[512]
6.103 There must be evidence that the earnings were received at a time when the other person was working as a prostitute. There must also be some more or less direct nexus between the earnings and the activities of the prostitute.[513]
6.104 Section 20(1)(b) of the Act provides that any person who in public commits any act of indecency with another person is guilty of an offence. The penalty is a fine not exceeding R4 000 or imprisonment for a period not exceeding two years or both such fine and imprisonment.[514]
6.105 The offence consists of the following elements:
6.106 In the context of prostitution, this provision is often utilised against prostitutes and clients who complete the sexual transaction in public (e.g. in a car parked within public view). This section is not only used against prostitutes.
6.107 Section 20(1)(c) of the Act provides that it is an offence for any person, in public or in private, to assist in bringing about, or receive any consideration for, the commission by any person of any act of indecency with another person. The penalty is a fine not exceeding R4 000 or imprisonment for a period not exceeding two years or both such fine and imprisonment.[515]
6.108 Milton and Cowling observe that the gist of the offence appears to be that the accused receives the consideration in return for providing a person, place or opportunity for the commission of an indecent act by others.[516]
6.109 It must be alleged and proved that two persons engaged in an act that was of an indecent nature. The act of indecency must have actually taken place.
6.110 Sections 39 and 45 of this Act are relevant to prostitution. Section 39(2) sets out that certain persons who enter or have entered the Republic shall be ‘prohibited’ persons for purposes of this Act. Subsection (2)(c) includes ‘any person who lives or has lived on the earnings of prostitution or receives or has received any part of such earnings or procured or has procured persons for immoral purposes’ in the list of prohibited persons.
6.111 Section 45 provides that any person who has been convicted of an offence referred to in section 58 or Schedule I or II in respect of which he or she has been sentenced to a fine of not less than R4000, whether or not with imprisonment as an alternative, or to imprisonment of a period of not less than 12 months, whether or not as an alternative to a fine, may be arrested and removed from the Republic under a warrant issued by the Minister. Schedule I to the Act lists public indecency, while Schedule II lists contravention of any provision of the Sexual Offences Act that constitutes an offence under that Act.
6.112 At the time of writing, it is envisaged that the Immigration Bill (2001) will replace the Aliens Control Act.[517] Since the Immigration Bill imposes a different classification structure, its provisions will be briefly examined here.
6.113 Clause 23 of the Bill deals with ‘prohibited’ persons. The provisions of the current section 39(20(c) of the Aliens Control Act have been omitted from the list of prohibited persons.
6.114 Clause 24 of the Bill sets out the system for classification as an ‘undesirable’ person. A foreigner may be declared undesirable if he or she has previous criminal convictions ‘without the option of a fine for conduct which would be an offence in the Republic’.[518]
6.115 Clause 26 of the Bill also makes provision for the Department to withdraw a permanent residence permit (inter alia) if its holder (a) within four years of the issuance of such permit, has been convicted of any of the offences listed in Schedule 1;[519] or (b) within twenty years of the issuance of such permit has been convicted three times of any of the offences listed in Schedules 1 and 2.[520]
6.116 Section 160 of this Act provides that it is an offence for the holder of an on-consumption licence to allow the licensed premises to be used as a brothel or to be frequented by persons who are regarded as prostitutes.[521] In addition, it is offence for such a licence holder to allow any person –
(a) to perform an offensive, indecent or obscene act; or
(b) who is not clothed or properly clothed, to perform or to appear, on a part of the licensed premises where entertainment or any nature is presented or to which the public has access.[522]
6.117 The Businesses Act presents the enabling legislative framework for the issuing of business licences. Section 2(4)(a) provides that a licensing authority shall, subject to the provisions of subsection (6), issue a licence which is properly applied for unless in the case of a business referred to in item 1(1) or 2 of Schedule 1, the business premises do not comply with a requirement relating to town planning or the safety or health of the public of any law which applies to those premises.[523] Item 2 of Schedule 1 relates to the provision of ‘certain types of health facilities or entertainment’, and includes providing massage or infra-red treatment[524] as well as making the services of an escort, whether male or female, available to any other person.[525]
6.118 In addition, section 2(4)(b) further stipulates that in the case of a business referred to in item 2 of Schedule1, the licensing authority must be satisfied that the applicant, whether or not he is or will be in actual and effective control of the business or if another person is or will be so in control, that other person, is not an unsuitable person to carry on the business, whether by reason of his character, having regard to any conviction recorded against him, his previous conduct or for any other reason.
6.119 The Businesses Act therefore allows for the granting of business licences, for example, to escort agencies or massage parlours, provided that the requirements of section 2(4) (read with the relevant municipal by-laws of other legal provisions relating to town planning of the safety or health of the public) are met.
6.120 Municipal by-laws play an important role in the legal regulation of especially outdoor prostitution. These by-laws are often aimed at addressing the more visible (and thus, socially undesirable) aspects of outdoor prostitution.[526] Two categories of by-laws may be distinguished in this regard:
a. ‘General’ by-laws that may have the practical effect of penalising certain activities related to prostitution, e.g. ‘loitering’,[527] creating a public disturbance,[528] or dressing indecently in public.[529] It is significant to note that although these by-laws would potentially affect all persons, they are frequently enforced solely against prostitutes.
b. By-laws specifically aimed at prostitutes, e.g. ‘loitering for purposes of prostitution’.[530]
6.121 There are also municipal by-laws affecting indoor prostitution. Where an escort agency or massage parlour endeavours to operate as a ‘licensed’ business, the municipal by-laws regulating businesses (prescribing, for example, zoning regulations, business hours, health requirements, etc), have to be complied with.[531] Again, these by-laws would apply to all businesses, and not only to those related to prostitution.
6.122 The scope of this Issue Paper does not permit a comprehensive analysis of the constitutional implications of the current criminal prohibition of prostitution. Instead, the two matters pending before the Courts at the time of writing will briefly be analysed.
6.123 The case of S v Jordan and Others[532] resulted from a police ‘sting’ operation carried out in a brothel in Jorissen Street, Pretoria. Police officials entered the brothel under the guise of being clients, and subsequently arrested a number of women employed at the brothel for allegedly contravening section 20(1)(aA) of the Sexual Offences Act. In addition, the owner of the brothel, Ms Jordan, was arrested and charged with contravention of section 2 of the Act.
6.124 The second appellant was a salaried employee of the first appellant; she did duty as a driver and receptionist of the brothel (with full knowledge that the business was a brothel). She was accordingly deemed to be keeping a brothel by virtue of the deeming provisions in sections 3(b) and (c) of the Sexual Offences Act.
6.125 The three appellants pleaded not guilty in the court a quo and admitted the factual allegations against them. They raised the defence that sections 2, 3(b) and (c) and 20(1)(aA) were unconstitutional. They were subsequently convicted, and appealed against the convictions.
6.126 The Transvaal Provincial Division of the High Court (per Spoelstra J)[533] held that section 20(1)(a) was inconsistent with the Constitution and therefore invalid. The court reached this conclusion through strong reliance on the dictum of the Constitutional Court in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others.[534] Spoelstra J referred to the conclusion reached in this matter that the common law offence of sodomy was inconsistent with the constitution, and noted as follows:
‘I do not find any reference in the judgment suggesting that if a male consents to sodomy for reward or some pecuniary benefit, such conduct falls outside the scope of the judgment. This being so, it cannot be contended that sexual relations conducted between a man and a woman in private constitutes criminal conduct merely because money changes hands.’[535]
6.127 The court found that most of the motivations that moved the Constitutional Court to its conclusion apply mutatis mutandis to the offence created by section 20(1)(aA). It also held that this provision is ‘discriminatory’, because of the following distinction:
‘In principle there is no difference between a prostitute who receives money for her favours and her sister who receives, for rendering a similar service, a benefit or reward of a different kind, such as a paid-for weekend, a free holiday, board and lodging for a shorter or longer period, a night at the opera, or any other form of quid pro quo’.[536]
6.128 Dealing with the position of the second appellant, the court held that a brothel owner and brothel employee cannot rely on the same considerations that apply when the rights of the prostitute as an individual are inquired into.[537] Spoelstra J made the following distinction:
‘When prostitution becomes an organised business venture conducted by persons who profit form the prostitutes’ activities, it is no longer a private affair between a man and a woman (or nowadays between any two persons), which takes place in private without directly affecting third parties. When it becomes a business openly carried on in business or residential areas or the streets or in buildings, the rights of every other citizen and therefore the community are affected’.[538]
6.129 The evidence placed before the court showed conclusively that the general public regards any form of prostitution with repugnance and disgust. All persons therefore have the right to be free of –
‘... the risk of being accosted on a street by a prostitute or a pimp or of having to tolerate not only the disturbance of their peace of mind, their ethical or moral serenity, dignity and tranquility, but also of being exposed to and having to endure all the byproducts that accompany such business, such as disorderly, disgraceful or disgusting conduct, drunkenness and drug abuse – to name but a few’.[539]
6.130 Spoelstra J further noted in respect of the prohibition of brothel-keeping contained in section 2 that this provision was clearly designed to discourage organised prostitution and to dissuade third persons from commercial exploitation of a prostitute and from living on or parasiting on the income earned by the prostitute.[540]
‘This amount to trading in the body of a human being... Such conduct may offend the religious beliefs of some people, a particular group’s sense of morality, or another’s views on health, hygiene and the risks associated therewith of perhaps a group’s dignity or even another’s views on the social or economic consequences thereof...’.[541]
6.131 In the court’s view, where the rights of a considerable segment of the community are affected, individuals’ rights (to the extent that one may postulate such rights in this instance) must yield to the rights of the majority of the community.[542] The court further notes that a third party managing a prostitute or prostitutes with their consent amounts to ‘virtual trafficking in human beings’, and comes to the conclusion that it cannot be said that the prohibitions contained in sections 2, 3(b) and (c) offend any person’s constitutional rights. The appeal against the conviction of the first and second appellants was accordingly dismissed.
6.132 At the same time, an application has been lodged seeking a declaratory order from the Witwatersrand Division of the High Court to the effect that certain sections of the Sexual Offences Act are unconstitutional. This matter has its origin in the police raid conducted on The Ranch on 2 February 2001. Pursuant to this raid, the Assets Forfeiture Unit of the National Directorate of Public Prosecutions sought and obtained a preservation order in relation to the assets of The Ranch / Mr Phillips in terms of section 38(2) of the Prevention of Organised Crime Act.[543]
6.133 The Unit also subsequently brought a forfeiture application in respect of certain assets in terms of sections 48, 50 and 53 of the Prevention of Organised Crime Act. This application is currently still pending. In addition, the Unit obtained ex parte a restraint order compelling surrender of assets in terms of section 26 of the Prevention of the Organised Crime Act. The Witwatersrand Local Division of the High Court (per Heher J) subsequently ruled against Philips.[544]
6.134 The basis of the declaratory order sought by Philips is his averment that the definition of ‘unlawful carnal intercourse’ violates certain provisions of the Constitution.[545] This definition is at the core of the Act, and underlies various other provisions, including the definition of a ‘brothel’[546] as well as the creation of certain offences such as soliciting[547] and performing sexual acts for reward.[548] Consequently, since the provisions creating these offences are inseparable from the definition of ‘unlawful carnal intercourse’, a finding that this definition is inconsistent with the Constitution also condemns the accompanying provisions.[549]
6.135 Apart from this attack based on the definition of ‘unlawful carnal intercourse’ the applicant also submits that the provisions in question ‘independently’ violate various rights as set out in the Constitution.[550]
6.136 The fact that prostitution is regarded as illegal implies that dependants of a prostitute would not have a claim for loss of the breadwinner in the event of the death of the prostitute through the intention or negligence of another person. This was stated clearly in Booysens v Shield Insurance Co Ltd:[551]
‘On the other hand it is difficult to conceive that our Courts would allow the husband or child of a deceased prostitute to recover compensation for loss of support based on the claim that during her lifetime she had maintained them - and would have continued to maintain them - on the proceeds of her prostitution.’[552]
6.137 Prostitutes who are employed in the formal sector (for the most part, in indoor agencies) cannot access unemployment insurance either for purposes of maternity benefits or for unemployment benefits as such.[553]
6.138 The fact that prostitution is illegal also means that when prostitutes are called on to produce proof of income (for example, when applying for credit facilities or a home loan), they are unable to furnish such proof for fear of exposing themselves to prosecution.[554]
6.139 It is often assumed that since prostitution is criminalised in South Africa, prostitutes and managers of prostitution-related businesses are not liable for paying income tax. However, it is trite law that an amount obtained by illegal means is not per se immune from being gross income and therefore liable for tax.[555] The current position is therefore that prostitutes are liable as tax payers (in spite of the illegal nature of their income).[556] In practice, the fact that prostitution largely operates ‘underground’ implies that it is extremely difficult for the South African Revenue Service to hold workers in this industry accountable for income tax.
6.140 According to recent media reports, the SA Revenue Service has embarked on a strategy to investigate and ‘sign up’ new taxpayers in the higher-income part of the prostitution industry as part of a general strategy to target the informal sector.[557] It is estimated that the prostitution industry is worth R250 million a year in taxes.[558]
6.141 According to section 14(2)(a) of the Sexual Offences Act, it will be a sufficient defence to a charge under subsection (1)[559] if ‘it shall be made to appear to the court’ that the girl at the time of the commission of the offence was a prostitute, that the person so charged was at the said time under the age of 21 years and that it is the first occasion on which he is so charged’.
6.142 Section 14(4) creates a similar defence where a woman is charged with contravention of section 14(3)[560] (the latter section is the ‘gender inverse’ of section 14(1)).
6.143 It is significant to note that this defence is not included in the draft Sexual Offences Bill included in the Commission’s Discussion Paper 85.[561]
6.144 Judicial officers historically regarded the credibility of evidence given by prostitutes with suspicion. Hoffmann and Zeffert note a number of judicial observations on the unreliability of the evidence of prostitutes.[562] The authors however explain that prostitution does not ’necessarily’ involve dishonesty:
‘[I]t is impossible to generalise about the extent to which a witness’s credibility will be affected by her following this mode of life. All that can be said is that in matters affecting her own sex life it is a factor which should lead the trier of fact to be cautious in accepting her evidence.’[563]
6.145 While these remarks were made before the amendment of section 227 of the Criminal Procedure Act (which regulates the admissibility of the previous sexual history of the complainant in a charge related to sexual assault), it is submitted that this attitude towards the credibility of prostitutes in the past pervaded judicial assessment.[564]
6.146 The current provisions of the Sexual Offences Act are largely modelled on English statutes. Prior to the enactment of section 20(1)(aA) in 1988, the Act did not prohibit prostitution per se. This section was inserted in the Act subsequent to the decision in S v H,[565] which dealt with the offence of living on the earnings of prostitution. (The Appellate Division held in casu that this offence did not apply to prostitutes themselves.)
6.147 In addition to proscribing the performance of sexual acts for reward, the Sexual Offences Act also prohibits brothel-keeping, and contains a number of ‘deeming’ or presumptive provisions aimed at facilitating the prosecution of the offence of brothel-keeping.
6.148 The Sexual Offences Act prohibits the recruitment of persons for purposes of prostitution in the form of various offences of procuring.
6.149 Furthermore, the Act also prohibits the following:
6.150 Section 14(2) of the Sexual Offences Act, which deals with sexual acts with young persons, states that it will be a defence to a charge of contravening section 14(1) that the girl at the time of the commission of the offence was a prostitute, that the person charged with the offence was under the age of 21 years and that it was the first time occasion on which he was so charged.[566]
6.151 The Aliens Control Act and the Liquor Act both contain provisions relating to prostitution.
6.152 Various aspects of prostitution are also regulated by means of municipal by-laws. These by-laws may take the form of either general or ‘prostitution-specific’ provisions. Municipal by-laws apply to both the indoor sector (usually in the form of measures relating to business licenses) and the outdoor sector.
6.153 The two constitutional challenges to the Sexual Offences Act current before the South African courts revolve around the provisions of sections 20(1)(aA), 2 and 3 of the Act and the definition of ‘unlawful carnal intercourse’ as contained in the definition clause respectively.
6.154 Other legal principles relevant to prostitution include tax liability, the implications of the illegality of prostitution and the evaluation of prostitutes’ evidence.
[389] Act 23 of 1957.
[390] Act 96 of 1991.
[391] The provisions concerned are discussed infra.
[392] Milton & Cowling South African Criminal Law and Procedure Vol III: Statutory Offences at Par E3-79.
[393] Ibid.
[394] Act 27 of 1882 (C).
[395] Section 5(29).
[396] See Milton & Cowling loc cit.
[397] See Milton & Cowling (op cit) at E3-79 n 8 for a discussion of the provisions concerned.
[398] Betting Houses, Gaming Houses and Brothels Suppression Act 36 of 1902 (C); Act 31 of 1903 ‘To amend the Law relating to Brothels and Immorality’ (N); Suppression of Brothels and Immorality Ordinance 11 of 1903 (O) [cited in Milton & Cowling loc cit].
[399] See Milton & Cowling op cit E3-2 n 4 for an exposition of these provisions. Milton ‘Unfair discrimination on the grounds of “gender, sex... [or] sexual orientation”. How the Sexual Offences Act 1957 does it all’ SACJ (1997) 297 notes that the Immorality Act 1927 was enacted, according to its long title, ‘to prohibit illicit carnal intercourse between Europeans and natives’.
[400] Act 23 of 1957.
[401] Section 10 of the Immorality Amendment Act 2 of 1988.
[402] The offences relating to prostitution are discussed infra.
[403] 1988 (3) SA 545 (AD). The judgment is discussed in more detail below.
[404] Report of the Ad Hoc Committee of the State President’s Council on the Immorality Act (PC 1/1985) Par 4.13 cited in Milton & Cowling at E3-2 n 17.
[405] Ibid.
[406] Idem at 149. The author notes that the parliamentary member for Pietermaritzburg North characterised prostitution (together with homosexuality) as ‘the first signs of a disintegrating community’; the member for Sandton rejected the possibility of licensing of prostitutes as ‘opening a door to national degeneration’, and the member for Roodeplaat expressed his satisfaction at the proscription of prostitution, stating that it ‘was wrong for the prostitute to get away with it in the past’. (Debates of Parliament 15 February 1988 col 889, 891 and 893 cited in Milton loc cit.)
[407] See discussion infra.
[408] See, for example, the discussion of procuring infra.
[409] Section 22(a) of Act 23 of 1957.
[410] Milton & Cowling op cit identify an additional element, i.e. being a prostitute. However, the position taken here is that the offence is not only committed by ‘prostitutes’- see discussion infra.
[411] For each of the offences under discussion here, the element of mens rea will not be discussed in detail, except where a specific aspect of this element is noteworthy.
[412] Section 14 of the Act.
[413] The distinction is of academic importance for purposes of this definition, since anal intercourse performed for reward would in any event resort under the definition of an 'indecent act'.
[414] 1992 (1) SACR 174 (W).
[415] At 175a-b.
[416] S v C 1978 (3) SA 978 (N) at 980.
[417] 1992 (1) SACR 174 (W).
[418] At 175e.
[419] Milton & Cowling (op cit) at Par E3-86.
[420] Milton & Cowling (loc cit) accordingly recommend that ‘reward’ should be construed as ‘pecuniary recompense’.
[421] Milton & Cowling (op cit) at E3-81.
[422] This does not of course preclude the possibility of arrest on other charges related to prostitution, e.g. soliciting in contravention of s 20(1)(a) of the Act, or in terms of municipal by-laws.
[423] See also Par 5.53 above.
[424] Milton & Cowling (op cit) at E3-83.
[425] 1992 (1) SACR 174 (W).
[426] Milton & Cowling (op cit) at E3-83 n 1. See also Discussion Paper 85 at Par 3.7.5.8 for opinion contra.
[427] Discussion Paper 85 at Par 3.7.5.7.
[428] Milton & Cowling (op cit) at E3-107.
[429] Ibid.
[430] Idem at E3-107 n 6 and authorities cited there.
[431] Section 22(a) of the Act.
[432] Milton & Cowling (op cit) at E3-109 n 3 and the authorities cited there.
[433] Idem at E3-109.
[434] The scope of this Issue Paper does not permit a detailed analysis of each of these provisions. See in this regard Milton & Cowling (op cit) at E3-111 to E3-117.
[435] See S v Zuma and Others 1995 (2) SA 642 (CC) and subsequent decisions. However, Spoelstra J reached a different conclusion in the Jordan matter. The court did not consider the potential impact of the ‘deeming’ provisions in section 3 of the Sexual Offences Act on the presumption of innocence.
[436] Section 1 of the Act.
[437] Idem.
[438] It is for this reason that so-called escort agencies that arrange for prostitutes to meet clients elsewhere for purposes of sexual acts are not brothels. See Milton & Cowling (op cit) E3-119 n 2.
[439] Idem at E3-119.
[440] Idem at E3-120 n 2.
[441] R v Louw and Woolf 1920 TPD 48 at 49 as cited in Milton & Cowling (op cit) at E3-120 n 4.
[442] The Sexual Offences Act defines ‘unlawful carnal intercourse’ as intercourse other than between husband and wife – s 1.
[443] Milton & Cowling (op cit) at E3-120.
[444] Idem at E3-121.
[445] S v P 1975 (4) SA 68 (T).
[446] S v M 1977 (3) SA 379 (C).
[447] Milton & Cowling (op cit) at E3-122.
[448] Section 7 of the Act.
[449] Section 8(1)(a) of the Act.
[450] Section 8(1)(b) of the Act.
[451] Sections 8(1)(b)(i) – (iii).
[452] The Criminal Law Amendment Act 1885 (as cited in Milton & Cowling (op cit) at E3-124) was enacted to combat the ‘white slave trade’. It is now regarded as doubtful whether the phenomenon of white slavery (which entailed amongst other methods the luring of young girls into brothels under false pretences where they were seduced or raped and subsequently held under circumstances of economic bondage) was as prevalent or widespread as claimed by the highly sensational disclosures at the time. See also Par 3.28 et seq above.
[453] See Milton & Cowling (op cit) at E3-124 n 2 and authorities cited there.
[454] See Par 3.7.4 of Discussion Paper 85, where section 9 of the Sexual Offences Act is discussed.
[455] Milton & Cowling (op cit) at E3-126.
[456] Ibid.
[457] Idem at E3-126 n 12 and examples cited there.
[458] Idem at E3-128.
[459] Milton & Cowling (op cit) at E3-134.
[460] Ibid.
[461] The other elements have either been discussed elsewhere or do not require further elucidation.
[462] Milton & Cowling (op cit) at E3-136.
[463] Ibid.
[464] 1995.
[465] Idem at E3-133.
[466] Milton & Cowling (op cit) at E3-133.
[467] Section 22(e).
[468] Milton & Cowling (op cit) at E3-138.
[469] Idem at E3-138.
[470] Section 12(2)(a).
[471] Section 12(2)(b).
[472] Milton & Cowling (op cit) at E3-138.
[473] Idem at E3-143.
[474] Section 22(d) of the Act.
[475] Milton & Cowling (op cit) E3-146.
[476] Ibid.
[477] Milton & Cowling (op cit) at E3-147.
[478] Idem at E3-145.
[479] Ibid.
[480] Idem at E3-88.
[481] Idem at E3-188 and authorities referred to there.
[482] Section 22(g).
[483] Idem at E3-91 n 1 and authorities cited there.
[484] Idem at E3-91 n 4-6 and authorities cited there.
[485] Idem at E3-91 n 7-9 and authorities cited there.
[486] Idem at E3-91.
[487] Ibid.
[488] Idem at E3-92.
[489] Idem at E3-93.
[490] 1959 (4) SA 427 (A).
[491] See Milton & Cowling (op cit) at E3-88, where the authors list a number of English and colonial statutes specifically aimed at males.
[492] Milton & Cowling (op cit) at E3-90.
[493] See Milton & Cowling loc cit and authorities cited there.
[494] Milton & Cowling (op cit) at E4-7 n 1 cite the example of where the clothes are on fire.
[495] Ibid.
[496] See S v K 1983 (1) SA 65 (C).
[497] Milton & Cowling (op cit) at 4-14.
[498] See in this regard also Par 5.25 above.
[499] Idem at E3-97.
[500] 1988 (3) SA 545 (AD).
[501] See 551D et seq.
[502] This judgment is reported as S v H 1986 (4) SA 1095 (T).
[503] These were (as cited at 552A-G of the judgment) s 21(1)(a) of Ord 46 of 1903 (T); s 33(1) of Act 36 of 1902 (C); s 13(1)(a) of Ord 11 of 1903 (O); s 15(1)(a) of Act 31 of 1903 (N).
[504] Our emphasis.
[505] At 552G.
[506] At 552H.
[507] Section 22(a) of the Act.
[508] Milton & Cowling (op cit) at Par E3-99.
[509] Ibid.
[510] Milton & Cowling (op cit) at E3-100.
[511] Idem at E3-103.
[512] Ibid.
[513] Idem at E3-104.
[514] Section 22(g) of the Act.
[515] Section 22(g) of the Act.
[516] Milton & Cowling (op cit) at E3-132.
[517] The Immigration Bill B79-2001 is currently serving before the National Assembly Portfolio Committee on Home Affairs (29 January 2002).
[518] Clause 24(1)(g) of the Bill.
[519] Schedule 1 lists treason, murder, rape, indecent assault, robbery, kidnapping, child-stealing, assault when a dangerous wound is inflicted, arson and any conspiracy, incitement or attempt to commit an offence referred to in this Schedule.
[520] Schedule 2 lists sedition, public violence, culpable homicide, bestiality, malicious injury to property, breaking and entering any premises, theft, receiving stolen property knowing it to have been stolen, fraud, forgery or uttering a forged document knowing it to have been forged, offences relating to coinage, any offence the punishment of which may be a period of imprisonment exceeding six months without the option of a fine, any offence relating to the illicit possession, conveyance or supply of dependence producing drugs, and any conspiracy, incitement or attempt to commit an offence referred to in this Schedule.
[521] Section 160(c).
[522] Sections 160(d)(i) and (ii).
[523] Section 2(4)(6) deals with the imposition of conditions when issuing such a business licence.
[524] Item 2(b).
[525] Item 2(c).
[526] See also Par 4.43 et seq above.
[527] For example: Reg 15 of the Cape Divisional Council: Regulations for the Prevention and Suppression of Nuisances (promulgated by PN 321/1957 dated 17 May 1957, applicable to the Southern Peninsula) provides that no person shall sit or lie in or on any street or footpath; not shall any person stand, walk, loiter or congregate or otherwise act in such manner as to obstruct free traffic along any street or footpath or to jostle or otherwise annoy the public. Similarly, s 26(1) of the Standard By-Law relating to Streets (promulgated by PN 562/1987 dated 2 October 1987) provides that ‘no person shall cause a nuisance to other persons by loitering, standing, sitting or lying in a street or public place’.
[528] For example: s 26(2)(b) of the Standard By-Law relating to Streets (promulgated by PN 562/1987 dated 2 October 1987) provides that no personal shall ‘fight or act in a riotous manner’. S 26(2)(d) of this By-Law provides that no person shall annoy or inconvenience any other person by yelling, shouting or making any noise in any manner whatsoever.
[529] For example: s 3(11) of the City of Pietermaritzburg General Bylaws provides that no person shall be in any street, road, thoroughfare in any public place within the public view without being decently clothed. S 24 of the City of Tygerberg: By-Law relating to Streets (promulgated by PN 88/1999 dated 26 February 1999) provides that no person shall appear in any street without being clothed in such manner ‘as decency demands’.
[530] For example: s 3(17) of the City of Pietermaritzburg General Bylaws provides that no person shall loiter in any street, road, thoroughfare or public place for the purpose of prostitution or solicit or importune any other person for such purpose. S 26(2)(f) of the City of Tygerberg: By-Law relating to Streets (promulgated by PN 88/1999 dated 26 February 1999) provides that no person shall solicit or importune any person for the purpose of prostitution or immorality.
[531] See discussion of the Businesses Act above.
[532] 2001 (10) BCLR 1055 (T); 2002 (1) SACR 17 (T).
[533] Webster J concurring.
[534] 1999 (1) SA 6 (CC); 1998 (2) SACR 556 (CC); 1998 (12) BCLR 1517 (CC).
[535] 2002 (1) SACR 17 at 21d-e; 2001 (10) BCLR 1055 (T) at 1058C-D.
[536] 2002 (1) SACR 17 at 21f-g; 2001 (10) BCLR 1055 (T) at 1058D-E.
[537] Ibid. The court refers, with apparent approval, to a quotation contained in the state’s heads of argument from Abraham Flexner Prostitution in Europe (published in 1919) discussing this difference.
[538] 2002 (1) SACR 17 at 22d-e; 2001 (10) BCLR 1055 (T) at 1059B-C.
[539] 2002 (1) SACR 17 at 22f; 2001 (10) BCLR 1055 (T) at 1059D.
[540] 2002 (1) SACR 17 at 23e-f; 2001 (10) BCLR 1055 (T) at 1060C.
[541] 2002 (1) SACR 17 at 23f-g; 2001 (10) BCLR 1055 (T) at 1060C-D.
[542] 2002 (1) SACR 17 at 23g-h; 2001 (10) BCLR 1055 (T) at 1060E.
[543] Act 121 of 1998.
[544] See National Director of Public Prosecutions v Phillips and others 2001 (2) SACR 542 (WLD).
[545] Par 13.1 of Phillips’ Founding Affidavit. The provisions in question are section 9(3), 12(2), 14 and 18 of the Constitution.
[546] As contained in section 1 of the Sexual Offences Act.
[547] Section 19(a).
[548] Section 20(1)(aA).
[549] Par 13.2 – 13.7 of Phillips’ Founding Affidavit.
[550] Idem at Par 13.2 – 13.8.
[551] 1980 (3) SA 1211 (SE).
[552] At 1217H.
[553] See the definition of ‘contributor’ in section 2 of the Unemployment Insurance Act 30 of 1966. This Act has now been repealed by the Unemployment Insurance Act 63 of 2001 (which is not yet in operation).
[554] See in this regard Pauw and Brener (op cit), Leggett (op cit).
[555] ‘It is trite law that an amount obtained by illegal means is not per se immune from being gross income but, we would submit, it must be obtained in the course of an operation of business in carrying out a scheme of profit making, ie receipts and accruals are revenue if they are not fortuitous but designedly sought for and worked for’: ITC 1624, delivered by Wunsh J, President on 1 March 1996.
[556] See e.g. CIR v Delagoa Bay Cigarette Co Ltd 1918 TPD 391, 32 SATC 47; BC v COT 1958 (1) SA 172 (SR), 21 SATC 353; COT v G 1981 (4) SA 167 (ZA), 43 SATC 159.
[557] See in this regard F Haffajee ‘Pretty vatable woman’ Financial Mail (8 December 2000) at 38.
[558] Ibid.
[559] Section 14(1) of the Sexual Offences Act creates the following offence:
‘Any male person who -
(a) has or attempts to have unlawful carnal intercourse with a girl under the age of 16 years; or
(b) commits or attempts to commit with such a girl or with a boy under the age of 19 years an immoral or indecent act; or
(c) solicits or entices such a girl or boy to the commission of an immoral or indecent act,
shall be guilty of an offence.’
[560] Section 14(3) of the Act reads as follows:
‘Any female who-
(a) has or attempts to have unlawful carnal intercourse with a boy under the age of sixteen years; or
(b) commits or attempts to commit with such a boy or with a girl under the age of 19 years an immoral or indecent act; or
(c) solicits or entices such a boy or girl to the commission of an immoral or indecent act,
shall be guilty of an offence’.
[561] See Par 9.13.3.3 for the discussion of sexual offences with children, which includes the provisions of section 14 of the Sexual Offences Act.
[562] LH Hoffmann & D Zeffert The South African Law of Evidence (1988) 4th ed at 584 n 19 and authorities cited there.
[563] At 584.
[564] See e.g. S v M and Another 1977 (4) SA 886 (A) at 892G.
[565] 1988 (3) SA 545 (AD).
[566] The converse also applies to section 14(4)(a) in relation to the offences set out in section 14(3).
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