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[2002] ZACC 22
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S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642 (CC); 2002 (11) BCLR 1117 (CC); 2002 (2) SACR 499 (CC) (9 October 2002)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 31/01
ELLEN JORDAN First
Appellant
LOUISA JOHANNA FRANCINA BROODRYK Second
Appellant
CHRISTINE LOUISE JACOBS Third
Appellant
versus
THE STATE Respondent
SEX WORKERS
EDUCATION AND ADVOCACY
TASKFORCE First Amicus Curiae
CENTRE FOR
APPLIED LEGAL STUDIES Second Amicus Curiae
REPRODUCTIVE HEALTH RESEARCH
UNIT Third Amicus Curiae
COMMISSION FOR GENDER EQUALITY Fourth Amicus
Curiae
PIETER CROUS AND MENELAOS GEMELIARIS Fifth Amicus
Curiae
ANDREW LIONEL PHILLIPS Sixth Amicus Curiae
Heard on : 5 and 6 March 2002
Decided on : 9 October
2002
JUDGMENT
NGCOBO J:
Introduction
[1] | I have had the benefit of
reading the joint judgment of O’Regan and Sachs JJ. I agree with the
conclusion that the constitutional
challenges based on human dignity, freedom of
person, privacy and economic activity must fail. But the reasons that persuade
me
to conclude that the challenge based on the right to economic activity and
the right to privacy must fail differ in both their scope
and emphasis from
those advanced in the joint judgment. I also agree that the challenge to
sections 2, 3(b) and (c) of the Sexual
Offences Act (the Act) must fail.
However, I do not agree with the conclusion that section 20(1)(aA) of the Act
discriminates unfairly
against women and that it is thus inconsistent with the
interim Constitution, as found by my
colleagues. |
Which Constitution is
applicable?
[2] | The issue of which
constitution applies is governed by item 17 of Schedule 6 of the Constitution
which provides that proceedings that
were pending when the Constitution came
into force, shall be governed by the interim Constitution unless the interests
of justice
require otherwise.[1] The
Constitution expresses the principle that a dispute must ordinarily be decided
in accordance with the law in force at the time
when the alleged infringement of
the Constitution occurred.[2] The
Constitution will only apply retroactively if the interests of justice so
demand. |
[3] | In their appeal in the High
Court the appellants based their constitutional challenges on the interim
Constitution. That is the Constitution
that was in force when the events that
gave rise to these proceedings occurred. In this Court all the parties accepted
that the
interim Constitution governs these proceedings. The High Court,
however, approached the matter on the footing that the Constitution
applies. It
is not clear from the judgment of the High Court whether any argument was
addressed to it on this question. The parties
did not suggest that it was in
the interests of justice to apply the
Constitution. |
[4] | The High Court should have
applied the interim Constitution as that constitution was in force when the acts
that gave rise to these
proceedings were committed. Ordinarily we would have to
decline to confirm the order of invalidity on this basis alone. There are,
however, considerations that militate against such a course being followed.
There is no material difference between the provisions
of section 8 of the
interim Constitution and section 9 of the Constitution, both of which deal with
discrimination. It therefore
matters not which Constitution was applied by the
High Court in reaching its conclusion that section 20(1)(aA) was discriminatory
and therefore inconsistent with the Constitution. We can therefore apply the
interim Constitution. The parties did not contend
otherwise. |
The Proceedings in the High
Court
[5] | The constitutional challenge
to section 20(1)(aA) included challenges based on the violation of “the
rights of . . . gender
equality” and “to equality before the law . .
.”. The High Court found that the distinction made by the provision
between the merchant and the customer was “obviously unjustified
discrimination between not only sexes but also
persons.”[3] It also found that
the impugned provision was discriminatory by distinguishing between “a
prostitute who received money for
her favours and her sister who receives, for
rendering similar services, a benefit or reward of a different kind such as a
paid holiday
weekend . .
.”.[4] |
[6] | It is unfortunate that the
High Court did not specify the provision of the Constitution that it found to
have been violated by section
20(1)(aA). In particular, it was necessary to
indicate whether the finding of discrimination was based on section 9(1) or 9(3)
of
the Constitution. Nor did the High Court indicate the basis for its
conclusion that section 20(1)(aA) could not be
justified. |
[7] | When a court concludes that
a provision in a statute limits a constitutional right, it is necessary first,
to identify the specific
provision of the Constitution that is limited by the
impugned provision, and second, to determine whether the limitation is
justifiable
in terms of section 36(1) of the Constitution. This Court has on
more than one occasion pointed out that the enquiry into the constitutional
validity of a provision in a statute requires the court to engage in a two-stage
enquiry: first, it must determine whether the impugned
provision limits a
constitutional right. If it does, the second enquiry arises. That enquiry
relates to the question whether the
limitation of the right is justifiable in
terms of section
36(1).[5] |
Does
Section 20(1)(aA) discriminate unfairly against women?
[8] | The central issue that was
debated in this Court is whether section 20(1)(aA) discriminates unfairly
against women. That debate turned
largely upon the proper construction of
section 20(1)(aA). On behalf of the State it was contended that upon a proper
construction
the section strikes at both the prostitute and the customer and
hence it is not discriminatory. The appellants and the amici contended
that it strikes only at the prostitute and hence it is discriminatory. In my
view, this matter can conveniently be approached
on the footing that the section
is directed at the prostitute only and not the
customer. |
[9] | Penalising the recipient of
the reward only does not constitute unfair discrimination on the grounds of
gender. The section penalises
“any person” who engages in sex for
reward. The section clearly applies to male prostitutes as well as female
prostitutes.
The section is therefore gender-neutral. Penalising the
prostitute only does not therefore amount to direct
discrimination. |
[10] | Nor does it amount to
indirect discrimination. The section makes a distinction between the prostitute
and the customer. There is
a qualitative difference between the prostitute who
conducts the business of prostitution and is therefore likely to be a repeat
offender, on the one hand, and the customer who seeks the service of a
prostitute only on occasion and thus may or may not be a repeat
offender. As
the joint judgment holds, the purpose of the prohibition is to outlaw commercial
sex. The prostitute is engaged in
the business of commercial sex. One of the
ways of curbing commercial sex is to strike at the merchant by means of criminal
sanctions.
The differentiation between the dealer and customer is a common
distinction that is made in a number of
statutes.[6] |
[11] | The differentiation made by
the section must be viewed against the fact that a man or woman who pays for sex
is guilty of criminal
conduct and liable to the same punishment as the
prostitute. At common law the customer is a socius
criminis[7] and also commits an
offence under section 18 of the Riotous Assemblies
Act.[8] In terms of the Riotous
Assemblies Act, the customer is liable to the same punishment to which the
prostitute is liable. |
[12] | It needs to be stressed
here that the purpose of section 20(1)(aA) is to prohibit commercial sex, not to
protect the person who pays
for sexual favours. The comments made by Steyn CJ
in S v Kellner[9] with
regard to a statute that prohibited the receipt of a bribe, seem to me to be
apposite here. The purpose of that prohibition
was not to protect persons
offering a bribe |
“against their own weaknesses or against any temptation into which the
urgency of their own affairs may lead them; and if they
should become the
victims of circumstance and inclination, that does not place them in the
category of complainants who have suffered
injury and who should not be be [sic]
deterred from disclosure by any apprehension of being implicated in an
offence.”
In the circumstances a provision that made it
an offence to receive a bribe, did
“not exclude the person performing the supplementary act to the prohibited
acceptance of a reward from criminal liability as
an
accessory”.[10]
[13] | The Sexual Offences Act was
therefore enacted in the context of a system of law in which all who participate
in a prohibited act are
guilty of having participated in that act and liable to
the same punishment as the principal offender. The Sexual Offences Act forms
part of that system of law. So does section
20(1)(aA). |
[14] | Thus, a man who pays for
sex and the woman who receives the payment are equally guilty of criminal
conduct and liable to the same
penalties. Both at common law and in terms of
the Riotous Assemblies Act the customer commits an offence, and in terms of the
Riotous
Assemblies Act the customer is liable to the same punishment to which
the prostitute is liable. |
[15] | And if there is any
discrimination, such discrimination can hardly be said to be unfair. The Act
pursues an important and legitimate
constitutional purpose, namely, to outlaw
commercial sex.[11] The only
significant difference in the proscribed behaviour is that the prostitute sells
sex and the patron buys it. Gender is
not a differentiating factor. Indeed one
of the effective ways of curbing prostitution is to strike at the supply. Two
points to
note here are the ones already stressed: first, the prohibition is
gender neutral, it punishes both female and male prostitutes;
and, second, guilt
and punishment are equal for both the prostitute and the customer. In the
circumstances any “discrimination”
resulting from the prostitute and
the customer being dealt with under different provisions of the law cannot be
said to be unfair. |
[16] | If the public sees the
recipient of reward as being “more to blame” than the
“client”, and a conviction carries
a greater stigma on the
“prostitute” for that reason, that is a social attitude and not the
result of the law. The stigma
that attaches to prostitutes attaches to them not
by virtue of their gender, but by virtue of the conduct they engage in. That
stigma
attaches to female and male prostitutes alike. In this regard I agree
with the joint judgment that by engaging in commercial sex
work, prostitutes
knowingly accept the risk of lowering their standing in the eyes of the
community, thus undermining their status
and becoming
vulnerable. |
[17] | It was not suggested that
prostitutes have no choice but to engage in prostitution. It was accepted that
they have a choice but it
was contended that the choice is limited or
“constrained”. Once it is accepted that section 20(1)(aA) is gender
neutral
and that by engaging in commercial sex work prostitutes knowingly
attract the stigma associated with prostitution, it can hardly
be contended that
female prostitutes are discriminated against on the basis of gender. I am not
persuaded by the argument that gender
discrimination exists simply because there
are more female prostitutes than male prostitutes just as I would not be
persuaded if
the same argument were to be advanced by males accused of certain
crimes, the great majority of which are committed by
men. |
[18] | In my view, a gender
neutral provision which differentiates between the dealer and the customer, a
distinction that is commonly made
by statutes, and which is justifiable having
regard to the qualitative difference between the conduct of the dealer and that
of the
customer, and which operates in the legal framework that punishes both
the customer and the dealer and makes them liable to the same
punishment, cannot
be said to be discriminating on the basis of gender, simply because the majority
of those who violate such a statute
happen to be
women. |
[19] | In contending that section
20(1)(aA) discriminates unfairly against women, reliance was also placed upon
the practice of the police
and the prosecutors. It was contended that in
practice only prostitutes are prosecuted and that customers are not. As pointed
out
earlier, a customer who engages in sex for a reward commits an offence at
common law and in terms of the provisions of the Riotous
Assemblies Act. What
happens in practice may therefore point to a flaw in the application of the law
but it does not establish a
constitutional defect in it. Even if the practice
of the police and the prosecutors is to target the “merchants” and
not the “customers” that is not relevant to the issue before us in
the present case concerning section 20(1)(aA) of the
Act, which is whether the
order of the High Court declaring the section to be inconsistent with the
Constitution should be confirmed. |
[20] | For all these reasons I
conclude that section 20(1)(aA) is not inconsistent with section 8(2) of the
interim Constitution. |
Other constitutional
challenges
[21] | Having found that section
20(1)(aA) was inconsistent with the Constitution, the High Court did not
consider the other challenges to
section 20(1)(aA). Where the constitutionality
of a provision is challenged on a number of grounds and the court upholds one
such
ground it is desirable that it should also express its opinion on the other
challenges. This is necessary in the event of this Court
declining to confirm
on the ground upheld by the High Court. In the absence of the judgment of the
High Court on the other grounds,
the proper course to follow may be to refer the
matter back to the trial court so that it can deal with the other challenges to
the
impugned provision. Thus failure by the High Court to consider other
challenges could result in unnecessary delay in the disposal
of a
case. |
[22] | In this case, however,
there are considerations which militate against sending the matter back to the
High Court. In the appeal relating
to the brothel provisions, the appellants
raised the same constitutional challenges that they had raised in relation to
the other
challenges to section 20(1)(aA). In the event, we had the benefit of
full argument on the other challenges to section 20(1)(aA).
In these
circumstances it is in the interests of justice that this Court consider the
other challenges to section 20(1)(aA). Accordingly
I proceed to consider
them. |
Challenge based on the right to
economic activity
[23] | At best for the appellants,
section 26(1) and (2) of the interim Constitution must be read together as
meaning that all constraints
upon economic activity and the earning of a
livelihood that fall outside the purview of subsection (2) are in breach of
section 26.
All that subsection (2) requires is that there should be a rational
connection between the legislation and the legislative purpose
sanctioned by
subsection (2). Once it is established that the purpose of the prohibition is
sanctioned by subsection (2), the question
whether the purpose is justifiable in
an open and democratic society based on freedom and equality is essentially a
question of law. |
[24] | The state contended that
the legislation was “designed” to promote the protection or
improvement of the quality of life
and human development, and as such is
sanctioned by section 26. Prostitution is associated with violence, drug abuse
and child trafficking.
These are the legislative
facts. |
[25] | The legislature has the
responsibility to combat social ills and where appropriate to use criminal
sanctions. In doing so, it must
act consistently with the Constitution. Once
the legislature has done so, courts must give effect to that legislative choice
and
may not enter into the debate as to whether the choice made is better or
worse than others not chosen. It was accepted that the
options available to the
legislature in combatting the social ills associated with commercialised sex
include criminalisation, regulation
and
abstention. |
[26] | The means employed by the
state to address these problems are to criminalise commercial sex and brothel
keeping. This is prima facie sanctioned by subsection (2). Measures
intended to eliminate the harmful effects of prostitution and brothel keeping
are clearly
measures designed to protect and improve the quality of life. It is
not for this Court to pass judgement on the effectiveness or
otherwise of the
choice made by the legislature. Indeed we are not entitled to set aside
legislation simply because we may consider
it to be ineffective or because there
may be other and better ways of dealing with the problem. It follows therefore
that prostitution
and brothel keeping are not protected by section 26. For
these reasons I agree that the challenge based on section 26 must likewise
fail. |
The Challenge based on privacy
[27] | It was contended that the
prohibition on prostitution infringes the right to privacy. I have grave doubts
as to whether the prohibition
contained in section 20(1)(aA) implicates the
right to privacy. This case is different from National Coalition for Gay and
Lesbian Equality and Another v Minister of Justice and
Others.[12] There the offence
that was the subject of the constitutional challenge infringed the right of gay
people not to be discriminated
against unfairly, and also their right to
dignity. It intruded into “the sphere of private intimacy and autonomy
which allows
us to establish and nurture human relationships without
interference from the outside community” and in doing so affected the
sexuality of gay people “at the core of the area of private
intimacy.” None of those considerations are present
here. |
[28] | This case is concerned with
the commercial exploitation of sex, which as I have found, involves neither an
infringement of dignity
nor unfair discrimination. I do not accept that a
person who commits a crime in private, the nature of which can only be committed
in private, can necessarily claim the protection of the privacy clause. What
compounds the difficulty is that the prostitute invites
the public generally to
come and engage in unlawful conduct in private. The law should be as concerned
with crimes that are committed
in private as it is with crimes that are
committed in public. |
[29] | But even if the right to
privacy is implicated, it lies at the periphery and not at its inner core. What
lies at the heart of the
prostitutes’ complaint is that they are
prohibited from selling their sexual services. After all, they are in this
industry
solely for money. The prohibition is directed solely at the sale of
sexual activity. Otherwise the prostitutes are entitled to
engage in sex, to
use their bodies in any manner whatsoever and to engage in any trade as long as
this does not involve the sale
of sex and breaking a law validly made. What is
limited is the commercial interests of the prostitute. But that limitation is
not
absolute. They may pursue their commercial interests but not in a manner
that involves the sale of sex. Having regard to the legitimate
state interest
in proscribing prostitution and brothel keeping, viewed against the scope of the
limitation on the right of the prostitute
and brothel keeper to earn a living, I
conclude that if there be a limitation of the right to privacy, the limitation
is justified.
It follows that the challenge based on the right to privacy must
also be dismissed. |
Conclusion
[30] | Much of the argument in
this case, and of the evidence placed before this Court, was directed to the
question whether the interests
of society would be better served by legalising
prostitution than by prohibiting it. In a democracy those are decisions that
must
be taken by the legislature and the government of the day, and not by
courts. Courts are concerned with legality, and in dealing
with this matter I
have had regard only to the constitutionality of the legislation and not to its
desirability. Nothing in this
judgment should be understood as expressing any
opinion on that issue. |
[31] | I agree with O’Regan
and Sachs JJ that the appeal against the finding made by the High Court
concerning brothels should be dismissed.
However, I conclude that section
20(1)(aA) is not unconstitutional. In view of the fact that I also agree with
the conclusion reached
by my colleagues, that section 20(1)(aA) does not violate
the right to privacy, freedom and security, and the right to economic activity,
it follows that I not only dismiss the appeal, but also decline to confirm the
order of invalidity made concerning section
20(1)(aA). |
Order
[32] | It now remains to consider
what the appropriate order should be. The orders made by the High Court were
made conditional upon the
confirmation of the order of unconstitutionality made
by the High Court. As I hold that the impugned provisions are not
unconstitutional
and therefore decline to confirm the order of
unconstitutionality, it follows that the order made by the High Court upholding
the
appeal by the third appellant cannot stand. In the High Court, and indeed
in the Magistrates’ Court, the appellants did not
dispute the fact that
they had contravened the impugned provisions. They only challenged the
constitutionality of these provisions.
Nor did the appellants appeal against
the sentence. The finding that the impugned provisions are constitutional
therefore disposes
of the appellants appeal. It follows that the convictions
and sentences imposed by the Magistrates’ Court must be
reinstated. |
[33] | In the event, the following
order is made: |
(1) The Court declines to confirm the order of the High Court declaring invalid
section 20(1)(aA) of the Sexual Offences Act 23 of
1957.
(2) The order made by the High Court is set aside and is replaced by an order
dismissing the appeals.
(3) The appeals by the first and second appellants are
dismissed.
Chaskalson CJ, Kriegler J,
Madala J, Du Plessis AJ and Skweyiya AJ concur in the judgment of Ngcobo
J.
O’REGAN J and SACHS J:
Introduction
[34] | On 20 August 1996 a police
officer entered a brothel owned by the first appellant in Pretoria, paid R250 to
the second appellant,
a salaried employee, and received a pelvic massage from
the third appellant, a prostitute or sex
worker.[1] The three appellants
admitted in the Magistrate’s Court that they had contravened the Sexual
Offences Act 23 of 1957, which
criminalises providing sex for reward and
brothel-keeping, but claimed that the relevant provisions of the Act were
unconstitutional
and should be declared invalid. Since the Magistrate’s
Court has no power to declare statutes unconstitutional, they did not
resist
conviction in that court. After being found guilty and sentenced by the
magistrate, they appealed to the Pretoria High Court
to have the provisions set
aside. In a judgment handed down on 2 August
2001,[2] the High Court held that
section 20(1)(aA) of the Act, which penalised sex for reward, was
unconstitutional. That section reads: |
“20. Persons living on earnings of prostitution or committing or assisting
in commission of indecent acts. –
(1) Any person who –
. . . .
(aA) has unlawful carnal intercourse, or commits an act of indecency, with
any other person for reward;
. . . .
shall be guilty of an
offence.”
[35] | The High Court went on to
hold that sections 2, 3(b) and 3(c) of the Act (the brothel provisions) which
covered brothel-keeping were
not unconstitutional. These provisions
read: |
“2. Keeping a brothel. – Any person who keeps a brothel shall be
guilty of an offence.
3. Certain persons deemed to keep a brothel. – The following persons shall
for the purposes of section two be deemed to keep
a
brothel:
(a) . . .
(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”.
The definition
of brothel in the Act is contained in section 1 which provides as
follows:
“‘brothel’ includes 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.”
“Unlawful carnal intercourse” is
in turn defined in the same section as “carnal intercourse otherwise than
between
husband and wife”. The High Court held that section 2 was a
measure to restrict the commercial exploitation of prostitutes,
which it
described as “trading in the body of a human being”, and added that
a third party managing a prostitute or prostitutes
with their consent amounts to
trafficking in human beings. The High Court concluded that public abhorrence at
this kind of exploitation
permitted the state to limit the individual rights of
the third parties to freedom of trade, occupation and profession, by regulating
and prohibiting such practices.
[36] | The declaration of
invalidity of the section dealing with sex for reward was referred to this Court
for confirmation.[3] Thereafter,
first and second appellants were given leave to appeal directly to this Court
against the refusal of the High Court
to set aside their convictions under the
brothel provisions. |
The parties
[37] | The confirmation
proceedings and the appeal were heard together in this Court. The National
Director of Public Prosecutions and the
Transvaal Director of Public
Prosecutions (the state) contended that the order of invalidity should not be
confirmed and that the
appeal should be refused. The state relied on a
substantial body of affidavit evidence, which included testimony by the Minister
of Justice, in support of upholding the law as it stands. Much of this evidence
was contested by the appellants who also filed voluminous
affidavits. In
addition, a number of amici curiae were admitted and permitted to make written
and oral submissions in support of
confirmation of the order of invalidity and
upholding the appeal. They were the Sex Worker Education and Advocacy Taskforce
(SWEAT);[4] the Centre for Applied
Legal Studies (CALS)[5] and the
Reproductive Health Research Unit
(RHRU),[6] who made joint
submissions; the Commission for Gender
Equality[7] (the Gender Commission);
brothel-owners Pieter Crous and Menelaos Gemeliaris (who made a joint
submission) and Andrew Lionel Phillips
(also a brothel owner) who made
submissions only with regard to whether the interim or final Constitution was
applicable. SWEAT
and Crous and Gemeliaris submitted evidence on affidavit,
which was challenged by further affidavits from the state. Although the
affidavits were replete with denials and counter-denials, the differences in
position adopted by the experts and other deponents
related not so much to
empirical facts as to how to characterise the activities concerned and what
conclusions should be drawn from
them. Little of the argument accordingly
turned on disputed questions of fact. |
The
issues
[38] | There are two separate
constitutional issues before the Court: |
(a) whether the Court should confirm the order made by the High Court declaring
section 20(1)(aA) to be inconsistent with the Constitution;
and
(b) whether the Court should uphold the appeal and find sections 2, 3(b) and
3(c) of the Act, as read with section 1, to be inconsistent
with the
Constitution.
These issues will be dealt with separately. We
agree with Ngcobo J for the reasons he gives that the applicable Constitution in
this
case is the interim Constitution.
The proper interpretation of
section 20(1)(aA)
[39] | Before turning to an
analysis of section 20(1)(aA), it is necessary to consider its proper
interpretation. The High Court held that
to the extent that section 20(1)(aA)
criminalised only the prostitute or sex worker and not the client, it amounted
to unfair discrimination.
The High Court also held that to the extent that the
provision criminalised any sexual intercourse between consenting adults where
some favour or consideration was given by one party to the other, it was in
breach of the Constitution. |
[40] | Counsel for the state
argued that the High Court interpretation was constitutionally incorrect and
suggested that the section bore
an extended meaning which included customers
within the criminal prohibition. The question then is whether the High
Court’s
interpretation of the section is correct. In particular, we must
decide whether it was correct in concluding that the provision
criminalised only
the prostitute and not the client, and that it criminalised any non-marital
sexual intercourse, where one party
gives another party a present or benefit
that could be construed as “for reward” in the context of the
section and not
only commercial sex. In considering whether the High
Court’s interpretation is correct, the question that we must consider
is
whether there is a constitutionally compatible interpretation of the section.
Such an interpretation should not be unduly strained,
but must be one which the
provision is reasonably capable of
bearing.[8] |
[41] | It has generally been
accepted in our law that section 20(1)(aA) criminalises only the conduct of the
prostitute and not that of the
client. So Burchell and Milton
state: |
“It is noteworthy that the section does not penalize the person who gives
the reward in return for the sexual intercourse.
In short, the prohibition is
directed only at prostitutes and not their customers. This feature of the
section reflects a form
of discrimination against prostitutes. The
discrimination lies in the fact that the customer’s role in the act is not
penalized
while that of the prostitute
is.”[9] (Footnotes
omitted.)
[42] | It is worth noting,
although not relevant to the proper interpretation of the section, that not only
academic commentators have given
it this meaning but law enforcement officers
appear generally to have done so as well. Not a single case of a prosecution of
a customer
since 1988 (when section 20(1)(aA) was introduced into the statute)
was brought to our attention, and the state did not seek to challenge
the
assertion that in practice only the prostitutes were charged in terms of the
section. |
[43] | The natural reading of the
section strikes at the prostitute who engages in sexual intercourse for reward
which is provided by the
client. The customer does not engage in sexual
intercourse for any reward, on the ordinary understanding of that term. He
(rarely
she) engages in it for sexual gratification and to receive that
gratification he furnishes the reward to the prostitute. It is this
ordinary
meaning of the provision which has been taken for granted until argument was
presented in this
case.1[0] |
[44] | It should be recalled that
until 1988 the law in South Africa, like that in many other Commonwealth
countries, such as the United
Kingdom, India, Australia and Canada, did not
penalise prostitution as such, but only activities associated with it, such as
pimping,
soliciting and brothel-keeping. Clearly, in 1988 the Legislature
intended to criminalise the conduct of the prostitute. Had it,
however,
intended to penalise the conduct of patronising a prostitute as well, it could
have done so in appropriate language. |
[45] | Counsel for the state
argued that the broader interpretation of the section should be preferred
because if the section criminalises
both the conduct of the prostitute and the
client, it would have no discriminatory effect. However, extending the
definition of
a crime, even to avoid what may otherwise constitute unfair
discrimination, is something that a Court should only do, if ever, in
exceptional circumstances. Where a criminal offence does result in unfair
discrimination, there will generally be two ways in which
the discrimination can
be avoided – abolition of the criminal prohibition, on the one hand, and
extension of its scope to the
otherwise excluded class on the other. The choice
between these is one which is ordinarily appropriate for the Legislature only.
In the circumstances of the criminal prohibition in question here, it is
peculiarly one for the Legislature, given the wide range
of potential
legislative responses to the social problems related to prostitution. There are
many reasons why the Legislature may
choose not to criminalise prostitution at
all including the following: criminalisation of prostitution may be seen not
adequately
to deter prostitution; that criminalisation of prostitution may
render the prostitute more a victim than a criminal; that there is
a need to
regulate prostitution to limit its social harm rather than prohibit
it.1[1] |
[46] | In the circumstances, we
cannot accept that it is in accord with our constitutional values for an
extended definition to be given
to section 20(1)(aA). Indeed, in our respectful
view, to do so would be contrary to constitutional values. First, it would be
destructive
of the principle of legality which requires certainty as to the
definition of crimes,1[2] and
secondly, it would intrude on the legitimate sphere of the Legislature in an
area of considerable public controversy. |
[47] | The second question
relating to the interpretation of the clause raises the question of what range
of conduct falls within the scope
of section 20(1)(aA). One of the grounds
given by the High Court for invalidating section 20(1)(aA) was that its terms
were too
wide: |
“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.”1[3]
In
support of its contention, the Court referred to the case of S v
C1[4] where Van Dijkhorst J
expressly rejected the contention that section 20(1)(aA) ought to be limited to
acts committed by professional
prostitutes. Dealing with the argument that the
section should be strictly construed so as to be confined to those who
habitually
and indiscriminately engage in sexual relations for reward the
learned judge said:
“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
street-walker.”1[5]
[48] | The question in the present
matter, then, is whether the section is reasonably capable of a restrictive
interpretation which would
narrow its ambit and bring it within constitutional
limits, such interpretation being achieved without undue strain. The question
is whether the phrase “unlawful sexual intercourse or indecent act for
reward” is capable of being read to include only
activity ordinarily
understood as prostitution. In other words, is the phrase reasonably capable of
being read so as to cover only
commercial sex, that is, sex where the body is
made available for sexual stimulation on a paid basis? We think there are
strong
contextual pointers in favour of the more restrictive
reading. |
[49] | The heading to the section
includes the words: “persons living on the earnings of
prostitution”. In President of the Republic of South Africa v
Hugo,1[6] this Court held that
it was legitimate for a court interpreting a statute to have regard to the
heading of a legislative provision.
In this case, the heading of section 20
makes it clear that the section is dealing with persons living on the earnings
of prostitution.
This suggests that a narrow meaning related to the heading
should be given to section 20. If one reads the criminal prohibition
contained
in section 20(1)(aA) in the light of the heading, one would attribute a meaning
to the section which renders criminal the
conduct of those who earn their living
from prostitution, or commercial sex. It may be difficult in some circumstances
to apply
this rule and to determine whether or not the conduct concerned is
sufficiently commercialised and indiscriminate as to qualify as
prostitution.
This remains a matter of application, however, not one of definition and is best
undertaken on a case-by-case basis
by the courts. We accordingly hold that in
this respect the section is reasonably capable of a restrictive
interpretation. |
[50] | In our view, therefore, the
proper interpretation of section 20(1)(aA) is that the provision criminalises
the conduct of prostitutes
but not that of customers. However, it does not
criminalise sexual intercourse between consenting adults which does not
constitute
prostitution or commercial sex. It is on this basis that the
constitutionality of the provision should be
considered. |
The constitutionality of section
20(1)(aA)
[51] | Counsel for the appellants
and the amici contended that the criminalisation of prostitution limits the
following fundamental constitutional
rights of those
concerned: |
“8. Equality
(1) Every person shall have the right to equality before the law and to equal
protection of the law.
(2) No person shall be unfairly discriminated against, directly or indirectly,
and, without derogating from the generality of this
provision, on one or more of
the following grounds in particular: race, gender, sex, ethnic or social origin,
colour, sexual orientation,
age, disability, religion, conscience, belief,
culture or language.”
“10. Human dignity
Every person shall have the right to respect for and protection of his or her
dignity.”
“11. Freedom and security of the
person
(1) Every person shall have the right to freedom and security of person, which
shall include the right not to be detained without
trial.”
“13. Privacy
Every person shall have the right to his or her personal privacy, which shall
include the right not to be subject to searches of
his or her person, home or
property, the seizure of private possessions or the violation of private
communications.”
“26. Economic
activity
(1) Every person shall have the right to freely engage in economic activity and
to pursue a livelihood anywhere in the national territory.
(2) Subsection (1) shall not preclude measures designed to promote the
protection or the improvement of the quality of life, economic
growth, human
development, social justice, basic conditions of employment, fair labour
practices or equal opportunity for all, provided
such measures are justifiable
in an open and democratic society based on freedom and
equality.”
[52] | There was considerable
overlap in the challenges. Thus, counsel for the appellants argued that the
structure of the Constitution
makes it necessary to cluster the rights to
dignity, privacy, and freedom of the person under the global concept of
autonomy. In
the first place, he argued, it is a matter of extreme significance
for all persons to be able to determine how to live their lives.
It is the
experience of autonomy that matters, the right to make decisions rather than the
content of these decisions. Secondly,
the state should not be empowered to make
judgments concerning the good or bad life, provided that the conduct in question
does not
harm others. Such conduct might be unworthy or risky, but if it is not
harmful to others then the state can not
interfere. |
[53] | While we accept that there
is manifest overlap between the rights to dignity, freedom and privacy, and each
reinforces the other,
we do not believe that it is useful for the purposes of
constitutional analysis to posit an independent right to autonomy. There
can be
no doubt that the ambit of each of the protected rights is to be determined in
part by the underlying purport and values of
the Bill of Rights as a whole and
that the rights intersect and overlap one another. It does not follow from this
however that it
is appropriate to base our constitutional analysis on a right
not expressly included within the Constitution. Accordingly, we will
deal in
turn with each of the rights said to be
infringed. |
The right freely to engage in
economic activity
[54] | We deal first with the
alleged infringement of the right freely to engage in economic activity and to
pursue a livelihood anywhere
in the national territory. In
Lawrence,1[7] this Court
identified two possible interpretations for section 26 of the interim
Constitution as follows: |
“The meaning of s 26 is, however, by no means clear. There seem to be two
possible approaches to its interpretation. The
first focuses on the meaning of
free participation in economic activity and in pursuing a livelihood. In a
modern democratic society
a right ‘freely’ to engage in economic
activity and to earn a livelihood does not imply a right to do so without any
constraints whatsoever
. . . .
On this approach to the interpretation of s 26 the right to engage in economic
activity and to pursue a livelihood anywhere in the
national territory would
entail a right to do so freely with others. Implicit in this is that the
participation should be in accordance
with
law.
. . . .
The alternative approach is to read s 26(1) and (2) together as indicating that
all constraints upon economic activity and the earning
of a livelihood which
fall outside the purview of s 26(2) will be in breach of s
26.”
[55] | The Court thus expressly
left open the question whether this right could be claimed only in respect of
lawful economic activity.
For the purposes of the present matter, we do not
consider it necessary to resolve that question. On the first meaning, given
that
prostitution is clearly an unlawful economic activity, the appellants could
not succeed. Once again, as in Lawrence, we are prepared to assume in
favour of the appellants that the second meaning which confers a broader right
is the proper meaning
of section 26. On that approach, the state is not
precluded from taking measures under section 26(2) of the Constitution
“designed
to promote the protection or the improvement of the quality of
life”. The only proviso is that such measures be justifiable
in an open
and democratic society based on freedom and equality. In determining whether a
particular measure is “designed
to promote” one of the purposes of
section 26(2), leeway must be afforded the Legislature to determine which
measures will
achieve the desired purposes. |
[56] | The state argued that
section 20(1)(aA) is aimed at improving the quality of life. In our view,
whether one considers that prostitution
should be tolerated, regulated or
prohibited, there can be no doubt that it does have an impact on the quality of
life. The Legislature
is therefore entitled to take the steps it considers
appropriate to regulate prostitution in terms of section 26(2) so long as it
does not limit other fundamental rights in a way that would not be justifiable
in an open and democratic society. As we shall see
later, open and democratic
societies adopt a variety of different ways of responding to prostitution,
including outright prohibition.1[8]
The European Court recently underlined the wide discretion that states have in
relation to prostitution as an economic
activity.1[9] In the circumstances,
therefore, we are satisfied that section 20(1)(aA) constitutes a measure
designed to promote or protect the
quality of life as contemplated by section
26(2) and that it is a measure considered justifiable in open and democratic
societies
based on freedom and equality. It is therefore not inconsistent with
the right in section 26 of the interim Constitution. The challenge
based on the
right to freely engage in economic activity must therefore
fail. |
Discrimination
[57] | The appellants argued that
to the extent that section 20(1)(aA) criminalises only the conduct of the
prostitutes and not that of the
client, it is in breach of section 8 of the
Constitution. The proper approach to section 8 of the interim Constitution was
confirmed
and summarised in Harksen v Lane NO and
Others.2[0] There are two
enquiries: the first is to consider whether the impugned provision
differentiates between people or categories of
people and if it does, whether it
does so rationally. The second is to consider whether a differentiation is
made, directly or indirectly
on a ground which could be said to have the
potential to impair human dignity or to affect people adversely in a comparably
serious
manner. If the differentiation is on such a ground, the question that
then arises is whether it is unfair or not. |
[58] | The differentiation in this
case is between prostitutes and patrons. The conduct of one group is rendered
criminal by the section,
that of the other,
not.2[1] It cannot be said that it
is irrational for the Legislature to criminalise the conduct of only one group
and not the other. The
legislative purpose may be to target the purveyors of
sex for reward, rather than the purchasers. In each case the question at this
stage is the narrow one of whether it is rational for the law to punish only one
side of the bargain. In our view, in this case
it cannot be said that rendering
criminal the conduct of the prostitute and not that of the client is so lacking
in any plausible
foundation as to be
irrational. |
[59] | The second question that
arises then is whether the differentiation contained in section 20(1)(aA) is
nevertheless discriminatory
as contemplated by section 8(2) of the interim
Constitution. It is clear that the ground for differentiation, between those
who
provide sex for reward as opposed to those who purchase it, is not a ground
specified in section 8(2). However, the appellants and
counsel for the Gender
Commission argued that the differentiation discriminated indirectly on one such
ground, namely, gender or
sex. In support of the High Court’s finding of
unfair discrimination, counsel for the Gender Commission referred to the case
of
Walker2[2] where Langa DP
held that: |
“The inclusion of both direct and indirect discrimination within the ambit
of the prohibition imposed by s 8(2) evinces a concern
for the consequences
rather than the form of conduct. It recognises that conduct which may appear to
be neutral and non-discriminatory
may nonetheless result in discrimination and,
if it does, that it falls within the purview of s 8(2). The emphasis which this
Court
has placed on the impact of discrimination in deciding whether or not s
8(2) has been infringed is consistent with this
concern.”2[3]
Dealing
with differential treatment of payment defaults by the Pretoria City Council, he
went on to say:
“It is not necessary in the present case to formulate a precise definition
of indirect discrimination. . . . It is sufficient
for the purposes of this
judgment to say that this conduct which differentiated between the treatment of
residents of townships which
were historically black areas and whose residents
are still overwhelmingly black, and residents in municipalities which were
historically
white areas and whose residents are still overwhelmingly white
constituted indirect discrimination on the grounds of race. The fact
that the
differential treatment was made applicable to geographical areas rather than to
persons of a particular race may mean that
the discrimination was not direct,
but it does not in my view alter the fact that in the circumstances of the
present case it constituted
discrimination, albeit indirect, on the grounds of
race. It would be artificial to make a comparison between an area known to be
overwhelmingly a ‘black area’ and another known to be overwhelmingly
a ‘white area’, on the grounds of geography
alone. The effect of
apartheid laws was that race and geography were inextricably linked and the
application of a geographical standard,
although seemingly neutral, may in fact
be racially discriminatory. In this case, its impact was clearly one which
differentiated
in substance between black residents and white residents. The
fact that there may have been a few black residents in old Pretoria
does not
detract from
this.”2[4]
It
was accordingly submitted that because prostitutes are overwhelmingly (though
not exclusively) female, and patrons are overwhelmingly
(though not exclusively)
male, the effect of section 20(1)(aA), to the extent that it criminalises only
the conduct of prostitutes
and not that of patrons, is indirectly discriminatory
on the grounds of sex.
[60] | Counsel for the state did
not deny that if only the prostitute were penalised by the section and not the
customer, this would be a
case of indirect discrimination because overwhelmingly
prostitutes were women and customers men. There was thus no factual dispute
between the parties as to whether the effect of the provision fell
disproportionately on women. Prostitutes and their customers
engage in sexual
activity, which is one of the constitutive elements of the relationship between
men and women in all societies.
As partners in sexual intercourse, they both
consent to and participate in the action which lies at the heart of the criminal
prohibition.
There are only three differences between them. The first is that
the one pays and the other is paid. The second is that in general
the one is
female and the other is male. The third is that the one’s actions are
rendered criminal by section 20(1)(aA) but
the other’s actions are not.
Moreover, the effect of making the prostitute the primary offender directly
reinforces a pattern
of sexual stereotyping which is itself in conflict with the
principle of gender equality. The differential impact between prostitute
and
client is therefore directly linked to a pattern of gender disadvantage which
our Constitution is committed to eradicating.
In all these circumstances, we
are satisfied that, as in Walker’s case, this is a case where an
apparently neutral differentiating criterion producing a markedly differential
impact on a listed ground
results in indirect discrimination on that
ground. |
[61] | Before proceeding further,
it should be noted that it was suggested that even if the provisions of section
20(1)(aA) did not criminalise
the conduct of customers, that conduct could be
considered criminal in terms of two other legal provisions. First, the common
law
provisions relating to accessories would criminalise their conduct; and
secondly, the provisions of the Riotous Assemblies Act 17
of 1956 could permit
the prosecution of the customer. If the conduct of the client were criminalised
through either of these techniques,
it was submitted this would mean that even
though section 20(1)(aA) does not render the client’s conduct criminal,
the fact
that it is rendered criminal by other provisions would mean that there
is no discrimination. |
[62] | Section 18(2) of the
Riotous Assemblies Act provides: |
“Any person who –
(a) conspires with any other person to aid or procure the commission of or to
commit; or
(b) incites, instigates, commands, or procures any other person to
commit,
any offence, whether at common law or against a statute or statutory regulation,
shall be guilty of an offence and liable on conviction
to the punishment to
which a person convicted of actually committing that offence would be
liable.”
We will assume that both this statutory
provision and the common law render a client who employs the services of a
prostitute to be
guilty of an offence as a co-conspirator, or as an accomplice,
respectively.
[63] | Even on that assumption,
however, it seems to us that the effect of section 20(1)(aA) remains
discriminatory. For, as counsel for
the Gender Commission cogently argued, the
section brands the prostitute as the primary offender of the actual offence.
The offence
of the customer becomes an offence of conspiracy or complicity. The
difference between being a principal offender and an accomplice
or
co-conspirator may have little impact in formal legal terms. It does, however,
carry a difference in social stigma and impact.
In imposing a direct criminal
liability for the prostitute, the law chooses to censure and castigate the
conduct of the prostitute
directly. The indirect criminal liability on the
client, assuming there is such, flows only from the crime committed by the
prostitute
who remains the primary offender. The primary crime and the primary
stigma lie in offering sexual intercourse for reward, not in
purchasing
it. |
[64] | This distinction is,
indeed, one which for years has been espoused both as a matter of law and social
practice. The female prostitute
has been the social outcast, the male patron
has been accepted or ignored. She is visible and denounced, her existence
tainted by
her activity. He is faceless, a mere ingredient in her offence
rather than a criminal in his own right, who returns to respectability
after the
encounter. In terms of the sexual double standards prevalent in our society, he
has often been regarded either as having
given in to temptation, or as having
done the sort of thing that men do. Thus, a man visiting a prostitute is not
considered by
many to have acted in a morally reprehensible fashion. A woman
who is a prostitute is considered by most to be beyond the pale.
The difference
in social stigma tracks a pattern of applying different standards to the
sexuality of men and women. |
[65] | In the present case, the
stigma is prejudicial to women, and runs along the fault lines of archetypal
presuppositions about male and
female behaviour, thereby fostering gender
inequality. To the extent therefore that prostitutes are directly criminally
liable in
terms of section 20(1)(aA) while customers, if liable at all, are only
indirectly criminally liable as accomplices or co-conspirators,
the harmful
social prejudices against women are reflected and reinforced. Although the
difference may on its face appear to be a
difference of form, it is in our view
a difference of substance, that stems from and perpetuates gender stereotypes in
a manner which
causes discrimination. The inference is that the primary cause
of the problem is not the man who creates the demand but the woman
who responds
to it: she is fallen, he is at best virile, at worst weak. Such discrimination,
therefore, has the potential to impair
the fundamental human dignity and
personhood of women. |
[66] | The question that next
arises is whether section 20(1)(aA), to the extent that it constitutes indirect
discrimination, is unfair or
not. In determining whether a discriminatory
provision or conduct is unfair, one must look at the nature of the group
discriminated
against, the nature of the discriminatory provision or conduct, as
well as the impact of the discrimination on those who complain
of it. It is
women and, in particular, prostitutes who suffer the discrimination in this
case. There can be no doubt that they
are a marginalised group to whom
significant social stigma is attached. Their status as social outcasts cannot
be blamed on the
law or society entirely. By engaging in commercial sex work,
prostitutes knowingly accept the risk of lowering their standing in
the eyes of
the community. In using their bodies as commodities in the marketplace, they
undermine their status and become vulnerable.
On the other hand, we cannot
ignore the fact that many female prostitutes become involved in prostitution
because they have few
or no alternatives. Accordingly, we cannot exclude from
the constitutional enquiry into fairness the fact that although prostitutes
do
constitute a vulnerable group, this is due in some part to their own
conduct. |
[67] | It might well be that in
many situations it will be easier to establish the fairness of indirect
discrimination than that of direct
discrimination. Thus, the injury to the
dignity of members of a group on whom the measure happens to target
differentially might
be less severe than if they had been targeted by direct
discrimination. The fact that in theory if not in practice the male customers
are equally liable for prosecution as accomplices could also attenuate the
differential impact, and hence limit the extent of the
unfairness. On the other
hand, the salient feature of the differentiation in the present matter is that
it tracks and reinforces
in a profound way double standards regarding the
expression of male and female sexuality. The differential impact is accordingly
not accidental, just as the failure of the authorities to prosecute male
customers as accomplices is entirely unsurprising. They
both stem from the same
defect in our justice system which hold women to one standard of conduct and men
to another. |
[68] | In determining what is
fair, we cannot look at section 20(1)(aA) in isolation, abstracted from its
social setting. As Wilson J reasoned
in the Canadian Supreme
Court: |
“it is important to look not only at the impugned legislation which has
created a distinction . . . but also to the larger
social, political and legal
context . . . [I]t is only by examining the larger context that a court can
determine whether differential
treatment results in inequality . . . . A finding
that there is discrimination will, I think, in most but perhaps not all cases,
necessarily entail a search for disadvantage that exists apart from and
independent of the particular legal distinction being
challenged.”2[5]
We
see no reason why the plier of sex for money should be treated as more
blameworthy than the client. If anything, the fact that
the male customers will
generally come from a class that is more economically powerful might suggest the
reverse. To suggest, as
the law (and Ngcobo J) do, that women may be targeted
for prosecution because they are merchants of sex and not patrons is to turn
the
real-life sociological situation upside-down. The evidence suggests that many
women turn to prostitution because of dire financial
need and that they use
their earnings to support their families and pay for their children’s food
and education. As we have
stated, we do not regard this as an excuse or a
justification. However, to suggest that male patrons who are able to use their
economic
means to obtain sexual gratification are somehow the less blameworthy
partners in the eyes of the criminal law, appears to us to
be markedly
unfair.
[69] | Parliament may decide to
render criminal sexual intercourse where a reward is paid, but their decision to
make only purveyors of sexual
intercourse and not purchasers primarily liable,
entrenches the deep patterns of gender inequality which exist in our society and
which our Constitution is committed to eradicating. In this regard, section
20(1)(aA) is different from the presidential pardon
at issue in
Hugo’s case,2[6] which
afforded a benefit to single mothers of children, admittedly on the stereotyped
basis that it is mothers who bear the primary
responsibility for children in our
society.2[7] In that case, we held
that because the impact was to reduce the burden borne by mothers, it did not
constitute unfair discrimination.
In this case, the impact exacerbates the
burden of sexual stereotyping borne by women and in particular sex
workers. |
[70] | In determining whether the
discrimination is unfair, we pay particular regard to the affidavits and
argument of the Gender Commission.
It is their constitutional mandate to
protect, develop, promote respect for and attain gender
equality.2[8] This Court is of
course not bound by the Commission’s views but it should acknowledge its
special constitutional role and
its expertise. In the circumstances, its
evidence and argument that section 20(1)(aA) is unfairly discriminatory on
grounds of gender
reinforces our conclusion. |
[71] | In the light of all these
considerations, we conclude that section 20(1)(aA), to the extent that it
renders criminal the conduct of
prostitutes, but not that of customers,
constitutes unfair discrimination. |
[72] | We do not agree with Ngcobo
J that the stigma attaching to prostitutes arises not from the law but only from
social attitudes.2[9] It is our
view that by criminalising primarily the prostitute, the law reinforces and
perpetuates sexual stereotypes which degrade
the prostitute but does not equally
stigmatise the client, if it does so at all. The law is thus partly
constitutive of invidious
social standards which are in conflict with our
Constitution. The Constitution itself makes plain that the law must further the
values of the Constitution. It is no answer then to a constitutional complaint
to say that the constitutional problem lies not in
the law but in social values,
when the law serves to foster those values. The law must be conscientiously
developed to foster values
consistent with our Constitution. Where, although
neutral on its face, its substantive effect is to undermine the values of the
Constitution, it will be susceptible to constitutional
challenge. |
[73] | Moreover, we wish to make
clear that our reasoning would not permit a man convicted of robbery to argue
that the offence of robbery
was unfairly discriminatory on the grounds of sex
because more robbers are male than female, as Ngcobo J’s judgment
suggests.
The distinguishing characteristic of the criminal prohibition in
question is that sexual intercourse for reward is intimate, shared
conduct
engaged in by two people, yet both are not punished by the criminal law in the
same way. This does not apply to robbery
or other crimes. It is the fact that
the crime cannot be committed at all without the participation of another who is
not rendered
criminally liable in the same way by the impugned section, that
gives rise to the constitutional complaint we uphold. Secondly,
the crime
itself is all about regulating sex and the expression of sexuality. The element
of gender is not just happenstance, but
integral to the prohibited conduct and
constitutive of the way it is treated by the law, enforcement agents and
society. The question
of whether such discrimination can be justified or not is
something to which we return later in this
judgment. |
The right to human dignity
[74] | Our Constitution values
human dignity which inheres in various aspects of what it means to be a human
being. One of these aspects
is the fundamental dignity of the human body which
is not simply organic. Neither is it something to be commodified. Our
Constitution
requires that it be respected. We do not believe that section
20(1)(aA) can be said to be the cause of any limitation on the dignity
of the
prostitute.3[0] To the extent that
the dignity of prostitutes is diminished, the diminution arises from the
character of prostitution itself. The
very nature of prostitution is the
commodification of one’s body. Even though we accept that prostitutes may
have few alternatives
to prostitution, the dignity of prostitutes is diminished
not by section 20(1)(aA) but by their engaging in commercial sex work.
The very
character of the work they undertake devalues the respect that the Constitution
regards as inherent in the human body.
This is not to say that as prostitutes
they are stripped of the right to be treated with respect by law enforcement
officers. All
arrested and accused persons must be treated with dignity by the
police. But any invasion of dignity, going beyond that ordinarily
implied by an
arrest or charge, that occurs in the course of arrest or incarceration cannot be
attributed to section 20(1)(aA), but
rather to the manner in which it is being
enforced. The remedy is not to strike down the law but to require that it be
applied in
a constitutional manner. Neither are prostitutes stripped of the
right to be treated with dignity by their customers. The fact
that a client
pays for sexual services does not afford the client unlimited license to
infringe the dignity of the prostitute. |
The
right to freedom of the person
[75] | Similarly we do not feel
that it has been established that section 20(1)(aA) constitutes a limitation of
the right to freedom as entrenched
in section 11 of the interim Constitution.
Most of the argument addressed to us on this topic was based on the 1996
Constitution,
which includes the rights not to be deprived of freedom without
just cause,3[1] and the right to
bodily integrity.3[2] The
formulation of section 12 is, however, different to section 11(1) of the interim
Constitution, which simply protects the right
to freedom and personal security.
In this respect the prostitute makes herself liable for arrest and imprisonment
by violating the
law. Provided that the law passes the test of
constitutionality, any invasion of her freedom and personal security follows
from
her breach of the law, and not from any intrusion on her right by the
state. In the light of the approach taken by the majority
of this Court to
section 11(1) of the interim
Constitution,3[3] there can be no
complaint in terms of that section by a person who has been convicted and
sentenced in terms of a duly enacted criminal
prohibition.3[4] |
The
right to privacy
[76] | In our view, the other area
where the rights of the sex worker appear to have been limited by section
20(1)(aA), is in respect of
her right of personal privacy. The concept of
privacy has been much debated in recent
times.3[5] In
Bernstein,3[6] Ackermann J
held that the right to privacy in the interim Constitution must be understood as
recognising a continuum of privacy rights
which may be regarded as starting with
a wholly inviolable inner self, moving to a relatively impervious sanctum of the
home and
personal life, and ending in a public realm where privacy would only
remotely be implicated, if at all. |
“The truism that no right is to be considered absolute implies that from
the outset of interpretation each right is always
already limited by every other
right accruing to another citizen. In the context of privacy this would mean
that it is only the
inner sanctum of a person, such as his/her family life,
sexual preference and home environment, which is shielded from erosion by
conflicting rights of the community. This implies that community rights and the
rights of fellow members place a corresponding obligation
on a citizen, thereby
shaping the abstract notion of individualism towards identifying a concrete
member of civil society. Privacy
is acknowledged in the truly personal realm,
but as a person moves into communal relations and activities such as business
and social
interaction, the scope of personal space shrinks
accordingly.”3[7]
At
the very least, as the interim Constitution itself makes clear, it includes
protection against search and seizure and the violation
of private
communications. There can be no doubt that autonomy to make decisions in
relation to intensely significant aspects of
one’s personal life are
encompassed by the term. As Ackermann J held in the Gay and Lesbian
Coalition (Sodomy) case:
“Privacy recognises that we all have a right to a sphere of private
intimacy and autonomy which allows us to establish and
nurture human
relationships without interference from the outside community. The way in which
we give expression to our sexuality
is at the core of this area of private
intimacy. If, in expressing our sexuality, we act consensually and without
harming one another,
invasion of that precinct will be a breach of our
privacy.”3[8]
[77] | Counsel for the appellants
argued that prostitutes are not blocks of wood without rights, incapable of
taking meaningful decisions
about deeply personal and intimate aspects of their
life. The fact that their work is commercial does not exclude it from the scope
of the right to privacy. It was argued that as conduct becomes more public so
it becomes increasingly intrusive and offensive as
far as others were concerned,
but prostitution, insofar as it takes place outside of the public gaze, engages
privacy. Counsel for
the amici supported these contentions, arguing that even
if the sexual activity is done purely for commercial reasons, this should
not
take it outside the realm of privacy. The commercial aspect might remove it
from the inner core of privacy and make it easier
to justify prohibition, but
does not remove it from the scope of privacy altogether. So, it was argued, the
fact that you pay a
doctor or psychiatrist does not denude your relationship
with him or her of its privacy interest. Even if the expression of sexuality
is
loveless, it is still very personal. The intrusion on two people engaging in
sex is qualitatively different from the search and
seizure of documents, he
said, but at least as worthy of requiring constitutional
justification. |
[78] | Counsel for the state, on
the other hand, contended that the prohibition of sex work does not preclude
prostitutes from giving expression
to their sexuality but does impact on their
receiving payment for sex. In this sense, the only interest for which a
prostitute can
claim protection is a commercial one, since her cluster of
personality rights are not trenched upon. It is not the intimate expression
of
sexuality that is inhibited but only its commercial aspect. The prostitute
makes her sexual services available to all and sundry
for reward, depriving the
sexual act of its intimate and private character. No invasion of privacy takes
place at all. |
[79] | Counsel for the appellants
relied heavily on the jurisprudence of the United States Supreme Court which
pioneered legal thinking in
this area. Nevertheless, its jurisprudence on the
question has to be handled with circumspection; there are differences in
constitutional
text and context.3[9]
It is of interest to note that attempts to strike down anti-prostitution laws in
the United States on the grounds of invasions of
liberty or privacy have
generally failed.4[0] The
relationship of the prostitute and client simply do not fall within the range of
those intimate human relationships that need
to be secured against undue
intrusion by the state. As Brennan J said in Roberts v United States
Jaycees,4[1] only intimate and
meaningful human relationships which safeguard individual freedom are protected
by their Constitution.4[2]
O’Connor J too distinguished in a similar manner between zones of
protected activity and others.4[3]
Central to the reasoning of both Brennan J and O’Connor J is the concept
of a zone of privacy that diminishes as the activity
becomes more public in
character. This notion has been foundational to this Court’s
jurisprudence on privacy. |
[80] | The problem in the present
matter is where to place commercial sex on the continuum described by Ackermann
J in Bernstein. In doing so, it is necessary to realise that there are a
range of factors relevant to distinguishing the core of privacy from its
penumbra. One of the considerations is the nature of the relationship
concerned: an invasion of the relationship between partners,
or parent and
child, or other intimate, meaningful and intensely personal relationships will
be a strong indication of a violation
close to the core of privacy. Another
consideration is the extent to which the body of a person is invaded: physical
searches or
examinations are often invasive of privacy as section 13 of the
interim Constitution suggests. |
[81] | As we observed before, the
constitutional commitment to human dignity invests a significant value in the
inviolability and worth of
the human body. The right to privacy, therefore,
serves to protect and foster that dignity. Commercial sex involves the most
intimate
of activity taking place in the most impersonal and public of realms,
the market place; it is simultaneously all about sex and all
about
money.4[4] Selling sex represents
an opportunity for women to earn money but within the framework of deeply
structured sexist and patriarchal
patterns of social life. A prohibition on
commercial sex, therefore, will not ordinarily encroach upon intimate or
meaningful human
relationships. Yet it will intrude upon the intensely personal
sphere of sexual intercourse, albeit intercourse for
reward. |
[82] | In arguing that
prostitution involves private consensual sexual activity and should be located
at the most protected end of the continuum,
counsel for the appellants relied
heavily on this Court’s decision in the Gay and Lesbian Coalition
(Sodomy) case.4[5] To our mind,
however, that case highlights points of contrast rather than of correspondence.
In the first place, what was at stake
in that matter was not just a privacy
interest, but an equality one. Indeed, the principal complaint of the gay
community was that
they were being subjected by the law to unfair discrimination
on the grounds of sexual orientation, in violation of the express protection
offered by section 8(2) of the Constitution. It was in this context that
Ackermann J stated: |
“Privacy recognises that we all have a right to a sphere of private
intimacy and autonomy which allows us to establish and
nurture human
relationships without interference from the outside community. The way in which
we give expression to our sexuality
is at the core of this area of private
intimacy. If, in expressing our sexuality, we act consensually and without
harming one another,
invasion of that precinct will be a breach of our privacy.
Our society has a poor record of seeking to regulate the sexual expression
of
South Africans. In some cases, as in this one, the reason for the regulation
was discriminatory; our law, for example, outlawed
sexual relationships among
people of different races. The fact that a law prohibiting forms of sexual
conduct is discriminatory
does not, however, prevent it at the same time being
an improper invasion of the intimate sphere of human life to which protection
is
given by the Constitution in s 14. We should not deny the importance of a right
to privacy in our new constitutional order, even
while we acknowledge the
importance of equality. In fact, emphasising the breach of both these rights in
the present case highlights
just how egregious the invasion of the
constitutional rights of gay persons has been. The offence which lies at the
heart of the
discrimination in this case constitutes at the same time and
independently a breach of the rights of privacy and dignity which, without
doubt, strengthens the conclusion that the discrimination is
unfair.”4[6]
The
judgment accordingly emphasises the interaction between equality, dignity and
privacy in relation to a community that had been
discriminated against on the
basis of closely-held personal characteristics. Furthermore, it stresses that
the protected sphere
of private intimacy and autonomy relates to establishing
and nurturing human relationships.
[83] | Prostitution is quite
different; the equality interest works the other way inasmuch as it is the very
institution of commercial sex
that serves to reinforce patterns of inequality.
Moreover, central to the character of prostitution is that it is indiscriminate
and loveless. It is accordingly not the form of intimate sexual expression that
is penalised, nor the fact that the parties possess
a certain identity. It is
that the sex is both indiscriminate and for reward. The privacy element falls
far short of “deep
attachment and commitments to the necessarily few other
individuals with whom one shares not only a special community of thoughts,
experiences and beliefs but also distinctly personal aspects of one’s
life”.4[7] By making her
sexual services available for hire to strangers in the marketplace, the sex
worker empties the sex act of much of
its private and intimate character. She
is not nurturing relationships or taking life-affirming decisions about birth,
marriage
or family; she is making money. Although counsel for the appellants
was undoubtedly correct in pointing out that this does not strip
her of her
right to be treated with dignity as a human being and to have respect shown to
her as a person, it does place her far
away from the inner sanctum of protected
privacy rights. We accordingly conclude that her expectations of privacy are
relatively
attenuated. Although the commercial value of her trade does not
eliminate her claims to privacy, it does reduce them in great
degree. |
[84] | We conclude that section
20(1)(aA) does amount to an infringement of privacy and we cannot agree with the
proposition that prostitutes
surrender all their rights to privacy in relation
to the use of their bodies simply because they receive money for their sexual
services.
However, we conclude that the invasion of privacy thus caused is not
extensive. The question to be asked is whether such intrusion
is justifiable, a
question to which we now turn. |
Limitation of
rights
[85] | The limitation of rights is
provided for in the interim Constitution as
follows: |
“33. Limitation.
–
(1) The rights entrenched in this Chapter may be limited by law of general
application, provided that such limitation
–
(a) shall be permissible only
to the extent that it is –
(i) reasonable; and
(ii) justifiable in an open and democratic society based on freedom and
equality”.
In S v
Makwanyane,4[8] Chaskalson P
held:
“[T]here is no absolute standard which can be laid down for determining
reasonableness and necessity. Principles can be established,
but the
application of those principles to particular circumstances can only be done on
a case-by-case basis. This is inherent in
the requirement of proportionality,
which calls for the balancing of different interests. In the balancing process
the relevant
considerations will include the nature of the right that is limited
and its importance to an open and democratic society based on
freedom and
equality; the purpose for which the right is limited and the importance of that
purpose to such a society; the extent
of the limitation, its efficacy and,
particularly where the limitation has to be necessary, whether the desired ends
could reasonably
be achieved through other means less damaging to the right in
question.”4[9]
We
have concluded that section 20(1)(aA) limits both section 8 and section 13 of
the interim Constitution. To determine whether either
of these limitations are
justifiable, we will look at each separately. In doing so, we shall consider,
first, the nature and extent
of the invasion of the right, second, the purpose
of the limitation and, finally, whether the limitations pass the test of
proportionality.
For purposes of convenience, we deal first with the
justification advanced in respect of the limitation on the right to
privacy.
The limitation of section 13 – the right to
privacy
[86] | It is clear from the
earlier discussion5[0] in relation
to the threshold question concerning privacy, that although section 20(1)(aA)
breaches the right to privacy, it does
not reach into the core of privacy, but
only touches its penumbra. In the circumstances, therefore, it is less
difficult for the
state to establish that the limitation is justifiable.
Counsel for the state acknowledged that the suppression of commercial sex
cannot
be justified merely on the basis of enforcing a particular view of morality. He
contended, however, that the prohibition
seeks to curb the extent of
prostitution in South Africa for eight
reasons: |
(a) prostitution in itself is degrading to women;
(b) it is conducive to violent abuse of prostitutes both by customers and
pimps;
(c) it is associated with and encourages the international trafficking in women,
which South Africa is obliged by its international
law commitments to
suppress;
(d) it leads to child prostitution;
(e) it carries an intensified risk of the spread of sexually transmitted
diseases, especially HIV/AIDS;
(f) it goes hand in hand with high degrees of drug abuse;
(g) it has close connections with other crimes such as assault, rape and even
murder; and
(h) it is a frequent and persistent cause of public
nuisance.
[87] | All of these contentions
were challenged by the appellants and the amici. Counsel for the appellants and
the amici agreed that trafficking
in women and child prostitution ought to be
prohibited, but contended that the general suppression of commercial sex makes
it more
rather than less difficult to single out these evils for focused
attention. Similarly, they argued that the criminalisation of commercial
sex
exacerbates the links between prostitution and crime and disease, and that any
public nuisance could be corrected by appropriate
regulatory measures. They
also indicated that the costs of law enforcement in this area are particularly
high. Being a so-called
victimless crime, evidence can usually only be obtained
by egregious forms of entrapment, which fosters
corruption.5[1] Counsel strongly
criticised the proposition that the banning of prostitution was justified as a
measure to reduce violence, contending
that it was precisely the marginalisation
of prostitutes by the law that renders them vulnerable to violence: they are
forced to
work in isolated circumstances, they fear reporting assaults to the
police in case they are prosecuted, and, above all, they are
regarded as
worthless people who bring misfortune on themselves and invite disregard for
their bodies. |
[88] | The Gender Commission,
associating itself with these challenges, contested the state’s contention
that criminalisation of prostitution
is required in order to combat social ills
“that experience has taught are as a matter of practical reality
inevitably associated
with prostitution”. The Commission submitted that
the facts, as opposed to “experience”, reveals that the link
between
prostitution and harms to public health, nuisance and other criminal activities
are more illusory than inevitable. The Commission
concluded that the
combination of false factual assertions concerning the ills inevitably linked to
prostitution and their professed
purpose of protecting prostitutes (belied by
the form of protection offered) leads to the conclusion that the real purpose of
prohibiting
prostitution is the one purpose not encompassed within the
identified “ills” – the enforcement of the moral views
of a
section of society. |
[89] | It is not possible on the
papers to resolve either the disputes of fact or those of characterisation. The
Court cannot decide, for
example, whether criminalisation is necessary to reduce
an activity that is conducive to violence, or whether it is the criminalisation
itself that establishes conditions for violence. Without doubt, the
relationship between cause and effect in all these matters is
complex. These
are contested issues throughout the globe. Moreover, they are matters upon
which Legislatures in open and democratic
societies may legitimately and
reasonably disagree as to the most appropriate legal response in their own
society. |
[90] | In approaching the question
of proportionality, the Court is obliged to apply the standards of an open and
democratic society.5[2] Open and
democratic societies vary enormously in the manner in which they characterise
and respond to prostitution. Thus practice
in such countries ranges from
allowing prostitution but not brothel-keeping; to allowing both; suppressing
both; to setting aside
zones for prostitution; and to licensing brothels and
collecting taxes from them.5[3] The
issue is generally treated as one of governmental policy expressed through
legislation rather than one of constitutional law
to be determined by the
courts. We are unaware of any successful constitutional challenge in domestic
courts to laws prohibiting
commercial sex. The matter appears to have been
treated as one for legislative choice, and not one for judicial determination.
The issue is an inherently tangled one where autonomy, gender, commerce, social
culture and law enforcement capacity intersect.
A multitude of differing
responses and accommodations exist, and public opinion is fragmented and the
women’s movement divided.
In short, it is precisely the kind of issue
that is invariably left to be resolved by the democratically accountable
law-making
bodies. |
[91] | We conclude, therefore,
that although nearly all open and democratic societies condemn commercialised
sex, they differ vastly in the
way in which they regulate it. These are matters
appropriately left to deliberation by the democratically elected bodies of each
country. Voices such as those of the Gender Commission, SWEAT and the RHRU will
help direct public and parliamentary attention to
the constitutional goal of the
achievement of equality between men and women. |
[92] | Counsel for the state
contended that what is before the Court is not the wisdom of the policy of
suppressing prostitution, but its
constitutionality. He was not called upon to
say that the policy was the wisest nor that it was the only one. Parliament
could
choose between prohibiting prostitution, regulating it or abstaining from
addressing it at all. The Act opted for prohibition and,
while this might carry
with it certain problems, it is a constitutionally permissible legislative
choice. We agree. |
[93] | What emerges from the above
analysis is that because of the commercial character of the activity involved,
the right to privacy of
the prostitutes is attenuated. What is also clear is
that there is a strong public interest in the regulation of prostitution in
a
manner which will foster the achievement of equality between men and women.
Open and democratic societies generally denounce prostitution.
Some criminalise
it, others make it difficult by criminalizing activities associated with it,
while others permit it with reluctance
and subject it to fairly stringent
conditions. We were not told of any society in which prostitution is regarded
as a normal business
activity just like any other, or a legitimate form of
self-expression just like any other. Neither has any example been brought
to
our attention of international law or domestic constitutional law which has been
used in any country successfully to challenge
laws penalising prostitution on
the grounds that such laws violated rights of autonomy or rights to pursue a
livelihood. |
[94] | The state argued that it
chose to criminalise prostitution for a series of purposes – all of which
are legitimate and important.
The appellants argue that the method chosen by
the state is not the most appropriate to achieve those purposes. It is,
however,
clear that the manner in which the parliamentary purposes can best be
achieved is a matter where Parliament may choose from a wide
range of reasonable
options. In our view, it is not for this Court in such a case to decide which
is the most effective manner in
which Parliament can achieve its objectives. In
circumstances where the limitation of a right is not severe, where Parliament
has
identified important purposes to be achieved by that limitation, and where
people may reasonably disagree as to the most effective
means for the
achievement of those purposes, it is our view that it would be inappropriate for
this Court to hold the limitation
unjustifiable. We accordingly conclude that
the limitation of privacy occasioned by section 20(1)(aA) is
justifiable. |
The limitation of section
8(2)
[95] | Section 20(1)(aA), insofar
as it renders criminal the conduct of the prostitute but not that of the client,
constitutes a limitation
of section 8(2) of the Constitution. In considering
the justifiability of this limitation, we are not concerned with the
justifiability
of choosing to criminalise prostitution per se, as we were when
considering the section 13 limitation. We are here concerned with
the
justifiability of the decision to criminalise primarily the conduct of the
prostitute. It is the difference between the treatment
of patrons and
prostitutes that causes the constitutional complaint; and it is that unfair,
discriminatory treatment which must be
justified. |
[96] | It is not clear why the
state should criminalise primarily the conduct of the prostitute and not that of
the client. It is clear
that the overall purpose of criminalising prostitution
is to curtail the extent of prostitution. However, that purpose may be far
more
effectively achieved were the client’s conduct to be rendered criminal in
the same way and were customers to be prosecuted
as a matter of course. The
state did not seek to argue that there was a legitimate purpose for
criminalising primarily the conduct
of the prostitute as a matter of law, but
exclusively as a matter of practice. For the reasons already advanced we do not
share
the view of Ngcobo J that, in this area, with its strongly gendered
context, the state is justified in targeting the alleged supplier
of the sexual
service and not the consumer. |
[97] | As we have observed,
democratic societies adopt a range of responses to prostitution. Wherever the
conduct of prostitutes is treated
as the primary criminal offence, it seems to
us that patterns of gender inequality and illegitimate double standards relating
to
male and female sexuality will be reinforced. In our constitutional
democracy which is committed to gender equality, a criminal
prohibition which
has the effect of furthering patterns of gender inequality will need powerful
justification to meet the test of
section 33. |
[98] | In the light of the fact
that the state did not seek to argue that there was an important purpose served
by the discriminatory impact
of the provision, and in the light of our
conclusion that the provision furthers harmful sexual stereotypes, we are not
persuaded
that the discrimination is justifiable as contemplated by section 33.
In our view, therefore, the provision is inconsistent with
the Constitution in
this respect. We shall return to the question of remedy
later. |
The constitutionality of sections 2
and 3(b) and (c) dealing with brothels
Interpretation
[99] | Before proceeding to
consider the constitutionality of sections 2 and 3(b) and (c), it is necessary
to consider their meaning and
ambit. In this regard, the definitions of brothel
and of unlawful carnal intercourse are relevant. As indicated at paragraph 34
above, “unlawful carnal intercourse” is defined in section 1 of the
Act as “carnal intercourse otherwise than between
husband and wife”.
A brothel is defined as including “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”.
The
provisions of sections 2, 3(b) and (c) must be read as incorporating these
definitions, so when section 2 provides that “any
person who keeps a
brothel shall be guilty of an offence”, it must be read to mean
– |
* “any person who
* keeps any house or place
* kept or used for purposes of prostitution or for persons to visit
* for the purpose of having unlawful carnal intercourse which means intercourse
other than between husband and wife
* or for any other lewd or indecent purpose”.
[100] | Because unlawful carnal
intercourse is defined as carnal intercourse other than between husband and
wife, any house or residence where
people who are not husband and wife may go to
have sexual intercourse could, technically speaking, be considered to be a
brothel.
If the definition were to be read in this fashion for the purposes of
section 2, 3(b) and 3(c), the provisions would be overbroad
and would constitute
a clear infringement of rights of human dignity, freedom and
privacy. |
[101] | For the reasons given
earlier in this judgment,5[4]
however, it is our view that sections 2, 3(b) and (c) must be read to regulate
only commercial sex. The provisions are, like section
20(1)(aA), reasonably
capable of being read to regulate commercial sex only. Subsections 3(b) and (c)
in effect render criminally
liable a person who“manages” a brothel,
or a person “who receives . . . moneys . . . taken in a brothel”.
Both these provisions suggest that a brothel is a business or commercial
enterprise whose business is concerned with sexual intercourse.
In our view,
because the subsections point to the business aspects of a brothel, they are
capable of being read restrictively so
as to criminalise only those engaged in
managing or receiving money from brothels, being business premises for
commercial sex. Section
2, however, is less clearly regulating the operation of
a business when it speaks of “keeping a brothel”. However, once
again, we think it is reasonably capable of being read to mean keeping a brothel
for the purposes of commercial sex and should be
construed in that narrow
fashion to avoid the manifest unconstitutionality which would result should it
be construed to prohibit
any person who “keeps” a place where
“unlawful carnal intercourse” as defined in the Act takes
place. |
[102] | It was the effect of these
provisions read together which led the appellants to argue that the overall
purpose of the Act is constitutionally
illegitimate, in that its purpose and
effect are to impose legal sanctions on any form of sexual intercourse outside
of a heterosexual
marriage. This, it was argued, is constitutionally
impermissible in that it is an attempt to legislate for a particular moral code,
inconsistently with the Constitution. It was argued that the state has no
business telling people what to do in private with their
bodies or with their
money. It should punish crime, not sin. In support of this contention
reference was made to a frequently quoted
observation in the Wolfenden Report
into Homosexuality and
Prostitution:5[5] |
“Unless a deliberate attempt is to be made by society, acting through the
agency of the law, to equate the sphere of crime
with that of sin, there must
remain a realm of private morality and immorality which is, in brief and crude
terms, not the law’s
business.”
Reliance was also
placed on the following words by Ackermann J in the Sodomy
case:5[6]
“The enforcement of the private moral views of a section of the community,
which are based to a large extent on nothing more
than prejudice, cannot qualify
as such a legitimate
purpose.”5[7]
The
argument was reinforced by reference to the observations made in Parliament in
1987 and 1988 when the Act was subjected to substantial
amendment and to the
Report of the Ad Hoc Committee of the President’s Council on the
Immorality Act.5[8]
[103] | The challenge accordingly
was based on two propositions: the state has no business enforcing private
morality, and the purpose of
the Act, as made manifest by its authors, is
precisely to defend a particular concept of morality. We will consider each of
these
in turn. |
[104] | All open and democratic
societies are confronted with the need to determine the scope for pluralist
tolerance of unpopular forms of
behaviour. To posit a pluralist constitutional
democracy that is tolerant of different forms of conduct is not, however, to
presuppose
one without morality or without a point of view. A pluralist
constitutional democracy does not banish concepts of right and wrong,
nor
envisage a world without good and evil. It is impartial in its dealings with
people and groups, but it is not neutral in its
value system. Our Constitution
certainly does not debar the state from enforcing morality. Indeed, the Bill of
Rights is nothing
if not a document founded on deep civic morality. As this
Court held in Carmichele v Minister of Safety and Security and Another
[2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC): |
“Our Constitution is not merely a formal document regulating public power.
It also embodies, like the German Constitution,
an objective, normative value
system. As was stated by the German Federal Constitutional Court: ‘The
jurisprudence of the
Federal Constitutional Court is consistently to the effect
that the basic right norms contain not only defensive subjective rights
for the
individual but embody at the same time an objective value system which, as a
fundamental constitutional value for all areas
of the law, acts as a guiding
principle and stimulus for the legislature, executive and judiciary.’
The same is true of our
Constitution.”5[9] (Footnotes
omitted.)
Yet, what is central to the character and
functioning of the state is that the dictates of the morality which it enforces,
and the
limits to which it may go, are to be found in the text and spirit of the
Constitution itself.6[0]
[105] | The state has accordingly
not only the right but the duty to promote the foundational values of the
interim Constitution. One of
the most important of these is to “create a
new order in which all South Africans will be entitled to citizenship in a
democratic
constitutional state in which there is equality between men and
women.”6[1] The question of
commercial sex must therefore be looked at not through the lens of certain
popular conceptions of morality, but
through that of constitutionally
articulated values, more particularly those that concern the entitlement of all
citizens to live
in a state in which gender equality is increasingly made a
reality. In answering the first question then, it is clear that our
constitutional
framework, not only permits, but requires the Legislature to
enact laws which foster morality, but that morality must be one which
is founded
on our constitutional values. |
[106] | The question that next
arises for consideration is whether the provisions of the Sexual Offences Act
under review, have as their purpose
the engendering of constitutional values.
Ordinarily the purpose of legislation is relevant at the second stage of
constitutional
analysis to determine whether a provision which limits
constitutional rights is justifiable. There may be times when a statute is
manifestly in breach of constitutional rights, where the purpose of the statute
is to foster a constitutionally invalid purpose.
Such a case arose in Canada.
In Big M Drug Mart,6[2] the
statute in question was referred to as the Lord’s Day Act. It declared
its purpose in the most resolute and unambiguous
of terms. As Chaskalson P said
in
Lawrence:6[3] |
“The Big M Drug Mart case concerned the provisions of the Canadian
Lord’s Day Act. Its name proclaimed its purpose as did its provisions.
It appears
from the judgment in that case that the Act prohibited any work or
commercial activity on the ‘Lord’s Day’ –
Sunday –
as well as any games or performances where an admission was charged, any
transportation for pleasure where a fee was
charged, any advertisement of
anything prohibited by the Act, the shooting of firearms and the sale or
distribution of foreign newspapers.
. . . .
The Canadian Courts had previously held that the object of the Act was to compel
the observance of the Christian Sabbath.”
It followed
that even if the Lord’s Day Act had come to have the secular effect of
providing a common day of rest for all Canadians,
its original purpose remained
manifest in the continuing signals it sent out to the effect that the Christian
Sabbath was entitled
to receive special recognition from the state. As such the
legislation had a clearly unconstitutional purpose and the statute could
not
avoid constitutional invalidity.
[107] | The appellants argued that
the purpose of the Sexual Offences Act, as explicitly declared by those
responsible for its adoption, was
simply to enforce what the legislator regarded
as the morality of the people, and to see to it that the law should uphold one
particular
moral position, namely that sex outside of marriage should be
prohibited. |
[108] | For the purpose of
argument we will accept that, given the context in which the Act was amended,
the objective of Parliament in 1988
was, as the appellants contend, to enforce a
particular conception of morality on the whole of society. The question then
arises
whether the legislation must be regarded as having been saddled once and
for all with this illegitimate purpose, or whether it can
be regarded as having
assumed a new purpose that would be legitimate and justifiable in an open and
democratic society. |
[109] | Counsel for the appellants
argued that the purpose of the legislation is established once and for all at
the time of its adoption,
and that only subsequent legislative amendment can
change it. He supported his argument by referring to a series of Canadian
cases,
starting with Big M Drug Mart where Dickson CJC criticised the
notion that a purpose could shift: |
“[T]he theory of a shifting purpose stands in stark contrast to
fundamental notions developed in our law concerning the nature
of
‘Parliamentary intention’. Purpose is a function of the intent of
those who drafted and enacted the legislation at
the time, and not of any
shifting variable.
. . . .
While the effect of such legislation as the Lord’s Day Act may be
more secular today than it was in 1677 or in 1906, such a finding cannot justify
a conclusion that its purpose has similarly
changed. In result, therefore, the
Lord’s Day Act must be characterized as it has always been, a law
the primary purpose of which is the compulsion of sabbatical
observance.”6[4]
In
Butler,6[5] Sopinka J
qualified the Court’s approach by stating that it is not necessary to
resort to the “shifting purpose”
doctrine to accept that if the
objective of the statute was to prevent harm, then changing community values as
to what was harmful
could be taken into account in considering the
constitutionality of a law. He observed that in proving that the original
objective
remained pressing and substantial, and that the measure was
proportional, the government could draw on the best evidence currently
available
and rely on the passing of time and change of circumstances.
[110] | The United States Supreme
Court has accepted the doctrine of shifting purpose on the issue of Sunday
closing laws. In McGowan v
Maryland,6[6] the Court held
that Sunday closing laws did not violate the Establishment Clause of the
Constitution. While conceding that there
was “no dispute that the
original laws which dealt with Sunday labor were motivated by religious
forces”,6[7] Chief Justice
Warren concluded such laws were constitutional. |
“In light of the evolution of our Sunday Closing Laws through the
centuries, and of their more or less recent emphasis upon
secular
considerations, it is not difficult to discern that as presently written and
administered, most of them, at least, are of
a secular rather than of a
religious character, and that presently they bear no relationship to
establishment of religion as those
words are used in the Constitution of the
United States
. . . .
The present purpose and effect of most of them is to provide a uniform day of
rest for all citizens; the fact that this day is Sunday,
a day of particular
significance for the dominant Christian sects, does not bar the State from
achieving its secular goals. To say
that the States cannot prescribe Sunday as
a day of rest for these purposes solely because centuries ago such laws had
their genesis
in religion would give a constitutional interpretation of
hostility to the public welfare rather than one of mere separation of church
and
State.”6[8]
The
Supreme Court gave weight to the disruption likely to result from the striking
of old laws having significant social value in
the present, and allowed them to
survive despite their constitutionally questionable origins.
[111] | Similar to the United
States and Canada, where social transformation has at different times rendered
obsolete the motivation underlying
existing legislation, South Africa is
undergoing a metamorphosis. But ours is one of far greater magnitude than that
ever experienced
by either of our North American counterparts. As Mohamed DP
said in
Shabalala:6[9] |
“It retains from the past only what is defensible and represents a radical
and decisive break from that part of the past which
is unacceptable . . . The
past was pervaded by inequality, authoritarianism and repression. The
aspiration of the future is based
on what is ‘justifiable in an open and
democratic society based on freedom and
equality’.”
As part of this transformation, all
legislation incompatible with our new constitutional order is
invalid.7[0]
[112] | If the racist and
authoritarian intentions of past legislators were to be taken as paramount and
invariable in determining the validity
of legislation today, many statutes would
not have survived the advent of constitutional democracy. In response to this
problem,
the interim Constitution envisaged a principle of interpretation
designed to promote principled legislative continuity rather than
radical
legislative rupture. Section 35 provides that: |
“(2) No law which limits any of the rights entrenched in this Chapter,
shall be constitutionally invalid solely by reason of
the fact that the wording
used prima facie exceeds the limits imposed in this Chapter, provided
such a law is reasonably capable of a more restricted interpretation which does
not exceed such limits, in which event such law shall be construed as having a
meaning in accordance with the said more restricted
interpretation.
(3) In the interpretation of any law and the application and development of the
common law and customary law, a court shall have
due regard to the spirit,
purport and objects of this Chapter.”
This
means that we must look at the wording of the Act in its post-1994 rather than
its original 1988 setting, and see if its language
is reasonably capable of
bearing a meaning which is compatible with the spirit, purport and objects of
the Bill of Rights. The mere
fact that the original legislative purpose of a
statute might have been incompatible with current constitutional standards, does
not deprive it of the capacity to serve a legitimate governmental purpose
today,7[1] unless its express
language and intent is, as in the Big M Drug Mart case in Canada,
manifestly inconsistent with constitutional values.
[113] | The question that needs to
be considered is whether the brothel provisions of the Sexual Offences Act are
reasonably capable of an
interpretation that manifests a purpose consistent with
the spirit, purport and objects of the Constitution. There are textual
indications
in the Act which make it plain that the Act was originally enacted
to impose a particular view of morality – one which considered
sexual
intercourse other than between husband and wife to be “unlawful carnal
intercourse”. There are many people in
our society who would support such
a view today, and they remain free to conduct their lives accordingly and to
urge others to do
the same. At the same time, it is quite clear that for the
state to impose such views on everyone in our society would conflict
with the
values of the Constitution, were such to be enacted in the current
era. |
[114] | Given the importance of
legal continuity, however, the question is whether an overall purpose can be
ascribed to the Act which is
reasonably capable of bearing a meaning consistent
with our current constitutional values. In our view, the Act does overall
continue
to pursue an important and legitimate constitutional purpose, namely,
the control of commercial sex. It is true that some of its
provisions are
formulated in inappropriate language reminiscent of pre-constitutional mores.
However, we are not satisfied that
the appellants have established that the
overall purpose of the legislation is manifestly inconsistent with the values of
our new
order. |
[115] | We now turn to consider
whether sections 2, 3(b) and (c) are inconsistent with the Constitution. In
considering this question, we
will adopt the narrow interpretation of sections
2, 3(b) and (c) discussed above.7[2]
The appellants’ key arguments in asserting that these provisions are
unconstitutional were based first on section 26 of the
interim Constitution, and
secondly on the fact, as they alleged, that it is safer for prostitutes to work
from brothels, rather than
from the street, or on their
own. |
[116] | To the extent that we have
held that section 20(1)(aA) does not constitute a limitation of section 26, the
same reasoning applies
to sections 2, 3(b) and (c). If criminalising
prostitution itself has been accepted in open and democratic societies as
promoting
the quality of life, so too has criminalising brothels. Indeed, the
suppression of brothels has far greater acceptance than the
criminalisation of
prostitution. Though such suppression is by no means universal, the common
theme is that in open and democratic
societies the question is regarded as
essentially one of legislative choice. For the reasons given above in relation
to section
20(1)(aA), therefore, this argument must
fail. |
[117] | The second argument of
counsel for the appellants was that if section 20(1)(aA) unjustifiably invaded
fundamental rights to personal
autonomy, then criminal sanctions on the activity
of brothel-keeping could similarly not be justified. To the extent, however,
that
we have found that the limitations on privacy occasioned by section
20(1)(aA) are justified, once again any such limitations are
also justified in
respect of sections 2 and 3(b) and (c). |
[118] | Finally, it was argued
that brothels could ensure that both prostitutes and customers had sex in a
protected environment free from
violence and in which proper health controls
could be managed. Counsel who appeared on behalf of other brothel owners as
well as
the appellants, sought to reinforce this argument by stating that the
failure of the state to enforce laws prohibiting brothels is
proof that in
practice the laws cannot be justified as they manifestly fail to serve the
purpose for which they had been adopted.
The argument on this score of counsel
on behalf of SWEAT, CALS and RHRU, is that the criminalisation of
brothel-keeping has the
effect of weakening the fundamental rights of
prostitutes to freedom and security of the
person,7[3] and accordingly cannot
be justified. |
[119] | In essence, the argument
in favour of providing constitutional protection for the existence of brothels
turns on the contention that
the fundamental rights of prostitutes to freedom
and security of the person can better be protected in brothels than out on the
streets.
All the reasons, however, for holding that it is open to the
Legislature in its judgment to seek to suppress prostitution as an
economic
activity so as to improve the quality of life in South Africa, apply with equal
if not stronger force to the prohibition
of brothels. Similarly if the rights
to dignity and freedom of individual prostitutes are not limited by the Act,
even less so are
such rights challenged in the case of brothel-keepers. The
same considerations apply to privacy. The reduced rights which prostitutes
might have, become even more attenuated as far as brothel-keepers are concerned.
Here the Legislature must have a wide discretion.
The issues of controlling and
regulating sexual activity are complex. Attitudes vary over time and from
country to country. Competing
policy considerations have to be attended to and
the problems of law enforcement in this area are particularly acute. Attention
has to be paid to the interest of neighbours. Many voices need to be heard.
This is very much an area for legislative choice in
which proposals made by the
Law Commission could be particularly helpful. |
[120] | We conclude therefore
that, in the light of the proper interpretation of the sections, the High Court
was correct in concluding that
sections 2, 3(b) and (c) do not infringe the
Constitution. |
Remedy
[121] | We have concluded that
section 20(1)(aA) constitutes an unjustifiable infringement of section 8(2) of
the interim Constitution. As
we held in the Sodomy
case,7[4] the equality jurisprudence
of the interim Constitution is of equal application under section 9 of the 1996
Constitution. A conclusion,
therefore, that section 20(1)(aA) is in conflict
with the interim Constitution, will in the circumstances also render it in
conflict
with the 1996 Constitution. |
[122] | Section 172 of the 1996
Constitution requires a court when deciding a constitutional matter within its
power, to declare any law that
is inconsistent with the Constitution to be
invalid to the extent of its inconsistency. Further, it may make any order that
is just
and equitable, including an order suspending the declaration of
invalidity for any period and on any conditions, to allow the competent
authority to correct the defect. |
[123] | Counsel for the
state7[5] asked us to suspend the
order of invalidity for a period of between 24 and 36 months. His reasoning was
the following: in determining
whether to suspend an order of constitutional
invalidity, the purpose which is served by the impugned legislation must be
weighed
against the constitutional violation which is effected by the
legislation. An important consideration is whether an immediate striking-down
would cause disorder or dislocation. If an immediate striking-down would be
prejudicial to good governance, the order of constitutional
invalidity should be
suspended and Parliament should be afforded a period of time in which to correct
the defects. It would lead
to highly undesirable consequences if the impugned
provisions of the Sexual Offences Act were to be declared unconstitutional with
immediate effect. This would create a vacuum during which there would be no
regulation of sex work whatsoever. Such a free-for-all
would be the worst of
all possible worlds. He argued that it is necessary to regulate sex work in
pursuit of several important public
interests. All of these considerations of
public interest would be undermined if prostitutes were allowed to ply their
trade in
an unregulated environment whilst Parliament attempted to draft new
legislation. It would take at least 24 months to draft appropriate
legislation
to regulate prostitution and brothel-keeping. |
[124] | Counsel for the
appellants, on the other hand, contended that such suspension would be neither
just nor equitable nor practically
necessary, whether viewed from the point of
view of the interests of the sex worker or from the point of view of the
interests of
society generally. From the point of view of the sex worker, there
is no reason why a delay is necessary to protect her interests
or the interests
of the group as a whole. Indeed, any delay in suspension simply denies the sex
worker access to the protection
of the laws already in place. An order striking
down section 20(1)(aA) with immediate effect would do much to ameliorate the
adverse
conditions presently affecting sex workers in the same industry. The
longer the delay in lifting the criminal sanction, the longer
sex workers suffer
the harms associated with it. Only when the criminal sanction is removed can
the associated stigma and violence
be mitigated. Counsel for the amici took a
similar position, arguing that there were no cogent reasons as to why a
declaration of
invalidity should be suspended. |
[125] | In our view, the above
arguments do not give sufficient weight to the fact that the invalidity of the
section stems not from unjustifiable
limitation of a fundamental right to
privacy, but from the discriminatory impact of a prohibition which the
Legislature may validly
impose. It would accordingly be premature for
prostitutes to embark on a process of attempting to normalise their work in a
decriminalised
atmosphere. Although decriminalisation is a valid option for
Parliament, it is not one which is constitutionally required. All
that is
required of Parliament is that if it chooses to criminalise prostitution it may
not do so in an unfairly discriminatory fashion.
At the same time we cannot
accept the state argument that invalidation of the section would lead to chaos.
It would in fact simply
restore the position as it had long existed in South
Africa prior to 1988, and as still prevails in much of the Commonwealth today:
prostitution as such would not be illegal but life for the prostitute would be
extremely difficult, as soliciting, pimping and brothel-keeping
would continue
to be prohibited by the Act. |
[126] | In our view, the central
consideration in determining what is just and equitable in relation to a
possible order suspending invalidity,
is what would best promote the achievement
of equality between men and women. In this respect, we have to bear in mind
that the
whole question of how to deal with prostitution in our society is a
complex one that defies simplistic solutions. Accordingly, we
feel that justice
and equity would best be served by giving Parliament a fair opportunity to
undertake a comprehensive review of
the matter, producing a balanced and well
thought-through approach to the manner in which commercial sex can and should
best be regulated
in contemporary South Africa, bearing in mind the principles
of equality that run through our Constitution. |
[127] | The importance of locating
changes to the law in such a broad context is well brought out in the report
produced by the Canadian Commission
into Pornography and
Prostitution.7[6] Having made an
extensive comparative survey the Commission points out that the law by itself
enjoys no special claim to be a solution
to prostitution within
society. |
“Indeed, it seems that those countries, the majority, which have ignored
the importance of non-legal, social responses to prostitution
have experienced
less success in controlling prostitution than those . . . which have recognised
the value of social strategies in
changing attitudes and responding to the human
problems associated with
prostitution.”7[7]
While
there is no necessary correlation between the existence of harsh criminal law
provisions and effective control of prostitution,
the impact of
decriminalisation depends on whether it was a random or planned process.
“Despite the romantic notion entertained in some quarters that all will be
well with the world of prostitution if only the
criminal law is removed, the
practical truth, it seems, is that it will not. All of the opportunities for
damage, abuse, and exploitation
remain.”7[8]
The
material in the survey suggested that any system of regulation which might
replace or co-exist with criminal proscription required
both considerable study
and careful development. A change in regulation would only be both legitimate
and successful if it reflected
a genuine attempt to balance all of the interests
involved; that of the community in protecting itself from offensive or intrusive
conduct; that of the prostitutes and customers in having a safe and healthy
environment in which to conduct their liaisons; and that
of the state in
preserving legality and public order. The Commission concluded that it was
crucial to any planned and reasoned approach
that both the political will and
resources be applied to allow a combination of long term social engineering and
short term legal
control mechanisms to work.
[128] | It is our view that these
considerations are as valid in South Africa as they are in Canada. In
Fose7[9] and National
Coalition for Gay and Lesbian Equality (Immigration
case)8[0] this Court stressed
the importance of forging new tools and shaping innovative remedies, if needs
be, to achieve the goal of effectively
vindicating entrenched rights. While as
a general rule the Court would hesitate to keep alive, pending rectification by
Parliament,
a provision which unconstitutionally imposed penal sanctions, we
believe in the present case the interests of all concerned, particularly
those
of the appellants who brought the present matter as a test case, would best be
served by facilitating a reasoned and comprehensive
regulation of the situation
by Parliament, as requested by counsel for the state. The short-term price for
the appellants is the
continuation of the present unsatisfactory state of
affairs. In the longer term, however, the goal of eliminating unfair
discrimination
is far more likely to be achieved in an effective manner if the
Legislature is encouraged to look at the matter in a comprehensive
and
integrated way rather than just to tinker with one unacceptable detail. We
accordingly propose that the declaration of invalidity
of section 20(1)(aA) be
suspended for a period of 30 months to enable Parliament to correct the defect.
The effect of this would
be to confirm the order of invalidity made in the High
Court, but to suspend its operation for 30 months. This in turn would require
that all the convictions in the Magistrates’ Court
stand. |
The order
[129] | We have read sections
20(1)(aA), 2, 3(b) and (c) of the Act purposively so that the criminal
prohibitions in them relate only to those
engaged in the provision of commercial
sex. It is not necessary to make a specific order in this regard, as this
reading constitutes
a purposive interpretation of the sections concerned and not
a finding of invalidity coupled with an order of notional severance.
In the
circumstances, we would propose the following
order: |
(1) Section 20(1)(aA) of the Sexual Offences Act, 23 of 1957 is declared to be
inconsistent with the Constitution and invalid.
(2) The order in paragraph 1 is suspended for a period of 30 months from the
date of this judgment.
(3) The appeals of the first and second appellants are dismissed.
(4) The order of the High Court is set aside and replaced with the following
order:
The appeals of the three appellants are dismissed and their convictions and
sentences confirmed.
Langa DCJ,
Ackermann J and Goldstone J concur in the judgment of O’Regan J and Sachs
J.
For the Appellants: D. N. Unterhalter SC, C. R. Jansen and N. Janse van
Nieuwenhuzien, instructed by Julian Knight and Associates,
Pretoria.
For the Respondent: W. Trengove SC and A. Cockrell, instructed by the State
Attorney, Johannesburg.
For the First, Second and
Third Amici Curiae: G. J. Marcus SC and S. J. Cowen, instructed by the
Women’s Legal Centre, Cape Town.
For the Fourth Amicus Curiae: S. Stein, instructed by the Legal Resources
Centre, Johannesburg.
For the Fifth and Sixth Amici
Curiae: C. R. Jansen, instructed by Botha Willemse and Wilkinson
Attorneys, Pretoria.
For the Seventh Amicus Curiae: M. Chaskalson, instructed by Shannon Little
Attorneys, Johannesburg.
[1] Item 17 of Schedule 6 provides
that “All proceedings which were pending before a court when the new
Constitution took effect,
must be disposed of as if the new Constitution had not
been enacted, unless the interests of justice require otherwise.”
[2] Fedsure Life Assurance Ltd and
Others v Greater Johannesburg Transitional Metropolitan Council and
Others [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at para 110.
[3] S v Jordan and Others 2002
(1) SA 797 (T) at 800E; 2001 (10) BCLR 1055 (T) at 1058A; 2002 (1) SACR 17 (T)
at 21B.
[4] S v Jordan, above at
800H.
[5] Coetzee v Government of the
Republic of South Africa; Matiso and Others v Commanding Officer, Port
Elizabeth Prison, and Others [1995] ZACC 7; 1995 (4) SA 631 (CC); 1995 (10) BCLR 1382 (CC)
at para 9; S v Williams and Others [1995] ZACC 6; 1995 (3) SA 632 (CC); 1995 (7) BCLR
861 (CC) at para 54.
[6] Section 3(3) of the Dangerous
Weapons Act 71 of 1968; section 47(f) of the Sea Fishery Act 12 of 1988; section
159(e), 160(b) and
161(c) of the Liquor Act 27 of 1989; and section 18(1) read
with section 29(b) of the Medicines and Related Substances Act 101 of 1965.
[7] R v Jackelson 1920 AD 486
at 490; S v Kellner 1963 (2) SA 435 at 446G-447G.
[8] Act 17 of 1956. Section 18(2)
provides that:
“Any person who
(a) conspires with any other person to aid or procure the commission of or to
commit; or
(b) incites, instigates, commands, or procures any other person to
commit,
any offence, whether at common law or against a statute or statutory regulation,
shall be guilty of an offence and liable on conviction
to the punishment to
which a person convicted of actually committing the offence would be
liable.”
[9] S v Kellner above n 7 at
447E - F.
[10] S v Kellner above n 7 at
447G.
[11] The state has advanced several
explanations for the suppression of commercialised sex. First, the business is
said to breed crime
which is not confined to the sale of sex but which extends
into violent crimes. Second, the business result in the exploitation
of women
and children. Third, it leads to trafficking in children. Fourth, it leads to
the spread of sexually transmitted diseases.
The appellants and amici
contended that these social ills can be eliminated by decriminalising and
regulating commercial sex. In my view these arguments
must be addressed to the
legislature.
[12] 1999 (1) SA 6 (CC); 1998 (12)
BCLR 1517 (CC).
[1] In this judgment, we use both
“prostitute” and “sex worker”. There is a debate in the
literature about the
proper terminology. (See, for example, J G Raymond
“Prostitution as Violence Against Women: NGO Stonewalling in Beijing and
Elsewhere” (1998) 21(1) Women’s Studies International Forum
1; and E Bernstein “What’s Wrong with Prostitution? What’s
Right with Sex Work? Comparing Markets in Female Sexual
Labor” (1999) 10
Hastings Women’s Law Journal 91). It has been argued that the word
“prostitute” has degrading connotations and that the term “sex
worker”
should be employed to avoid them. We have chosen to avoid
privileging one term over another.
[2] Reported as S v Jordan and
Others 2002 (1) SA 797 (T); 2001 (10) BCLR 1055 (T); 2002 (1) SACR 17
(T).
[3] In terms of section 172(2)(a) of
the Constitution: “The Supreme Court of Appeal, a High Court or a court
of similar status
may make an order concerning the constitutional validity of an
Act of Parliament, a provincial Act or any conduct of the President,
but an
order of constitutional invalidity has no force unless it is confirmed by the
Constitutional Court.”
[4] SWEAT is an organisation whose
objectives are the empowerment of sex workers, the decriminalisation of adult
commercial sex work
and the promotion of safer sex work practices.
[5] CALS is a research institute
within the School of Law at the University of Witwatersrand, established to
conduct research and engage
in advocacy, litigation and training for the
promotion and protection of human rights in South Africa.
[6] The RHRU is a research
organisation based at the Department of Obstetrics and Gynaecology at the Chris
Hani Baragwanath Hospital.
It conducts research into interventions around the
health care of sex workers and claims to have obtained extensive knowledge of
the sex work industry, in particular about the differing effects that
criminalisation of adult sex work has on the indoor and outdoor
sex work
industry respectively.
[7] The Gender Commission is a state
institution supporting constitutional democracy, established in terms of Chapter
9 of the Constitution.
Its constitutional mandate is set out in section 187(1)
and (2) of the Constitution and includes the promotion of respect for gender
equality and the protection, development and attainment of gender equality. Its
functions are further set out in section 11 of the
Commission on Gender Equality
Act 39 of 1996.
[8] See Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and Others [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) at paras
21-6.
[9] Burchell and Milton
“Crimes Against Sexual Morality” Principles of Criminal Law
2nd ed (Juta: Cape Town 1997) at 630. See also Milton “The Sexual
Offences Act” (1988) 1 SACJ 269 at 272: “. . . [T]he
legislature’s zeal for removing discrimination falters somewhat here in
that while it becomes a
crime to be a prostitute it is not made a crime to be
the client of the prostitute. If prostitution is to be eradicated one would
have thought that it makes sense to penalise as much those who seek commercial
sex as those who supply it.” See also the commentary
in Milton and Fuller
South African Criminal Law and Procedure Service No. 9, 1997
“Sexual Offences” at E3 para 83 where it states that:
“Although the section does not specifically
mention prostitutes, its gist
and intent is . . . that persons who are prostitutes commit the offence. The
import of this is that
the other partner in the sexual act – the customer
– does not commit the offence.” (Footnotes omitted.)
1[0] As Milton and Cowling reason in
their text SA Criminal Law and Procedure Vol III Statutory Offences:
“These conclusions follow from the wording of the section. The subject is
the person who has sexual relations for reward
‘with any other
person’. It is thus the person who receives the reward who commits the
offence. The person who gives
the reward (the ‘other person’) is
not the subject of the prohibition.” E3-82, note 1.
[1]1 See the discussion of these
considerations by Wilson J in In re ss 193 and 195(1) of the Criminal
Code (1990) 48 CRR 1 at 76.
1[2] See the comments by Schreiner
ACJ in R v Sibiya 1955 (4) SA 247 (AD) at 256 G-H. See also R v
Oberholzer 1941 OPD 48 at 60; and S v Von Molendorff and Another 1987
(1) SA 135 (T) at 169C.
1[3] Above n 2 at 800H-I.
1[4] 1992 (1) SACR 174 (W).
1[5] Id at 176F-G.
1[6] [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6)
BCLR 708 (CC) at para 12.
1[7] S v Lawrence; S v Negal; S v
Solberg 1997 (4) SA 1176 (CC); 1997 (10) BCLR 1348 (CC) at paras 32, 34 and
37.
1[8] See paras 90-91 below.
1[9] Aldona Malgorzata Jany and
Others v Staatssecretaris van Justitie Case C-268/99, 20 November 2001. The
Court held that in terms of its treaty obligations the Dutch government could
not refuse residence
permits to self-employed prostitutes from Poland and the
Czech Republic. It held that prostitution was an economic activity, that
the
prostitutes were self-employed, that as far as the question raised of immorality
was concerned it was not for the Court to substitute
its own assessment for that
of the Legislatures of the Member States. At the heart of the judgment was the
acknowledgment by the
Court of the state’s discretion as to how to deal
with prostitution.
2[0] [1997] ZACC 12; 1998 (1) SA 300 (CC) at para
54; 1997 (11) BCLR 1489 (CC) at para 53.
2[1] We are not dealing here with
the question of accomplice or accessory liability, something we consider below
at paras 60ff.
[2]2 Pretoria City Council v
Walker 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC).
2[3] Id at para 31-2.
2[4] Id at para 32.
2[5] See R v Turpin (1989) 39
CRR 306 at 335-6.
2[6] Above n 16.
2[7] Id at para 47.
2[8] See section 187 of the
Constitution.
2[9] See para 16 of Ngcobo J’s
judgment.
3[0] We have already dealt with the
impact on the dignity of prostitutes caused by their being treated differently
from their male patrons.
The very fact of differential treatment by the
criminal law of prostitutes and customers implicates the dignity of all women,
and
results in indirect discrimination. Here we are concerned not with
differential impact as between customers and prostitutes, but
with the question
of whether the criminal prohibition on its own and regardless of whether it also
criminalises the conduct of customers
results in a diminution of the dignity of
prostitutes.
3[1] Section 12(1)(a) of the final
Constitution reads:
“Everyone has the right to freedom and security of the person which
includes the right –
not to be deprived of freedom arbitrarily or without just
cause”.
3[2] Section 12(2) of the final
Constitution reads:
“Everyone has the right to bodily and psychological
integrity”.
[3]3 See the separate judgments in
Ferreira v Levin NO and Others; Vryenhoek and Others v Powel NO and
Others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) and, in particular, the
judgment of Chaskalson P at paras 183-5. See also Bernstein and Others v
Bester and Others NNO 1996 (2) SA 751(CC); 1996 (4) BCLR 449 (CC).
3[4] As Ackermann J held for
the majority in Bernstein id at para 53: “Witnesses who ignore
subpoenas or who refuse to answer questions put to them may be subjected to the
sanction
of imprisonment. That is true of all persons who contravene
legislation that has been lawfully passed. The execution of the sanction
implicates the physical integrity of the person who is imprisoned for the breach
of the law. Section 11(1), which pointedly refers
to detention without trial,
does not include within its scope imprisonment consequent upon the sentence of a
court. Legislation
invariably makes provision for sanctions, including the
possibility of imprisonment, and it could never have been the intention of
the
framers of the Constitution to require all laws which contain such a sanction to
meet the test of necessity prescribed by section
33(1) for any limitation of a
section 11(1) right.” See the different approach taken to section 12 of
the 1996 Constitution
in De Lange v Smuts NO and Others 1998(3) SA 785
(CC)[1998] ZACC 6; ; 1998 (7) BCLR 779 (CC) at paras 15ff.
3[5] See Edward Shils’
analysis of the term “privacy” quoted in A L Allen Uneasy Access:
Privacy for Women in a Free Society (Roman and Littlefield: New Jersey,
1988) at 5-6: “Numerous meanings crowd in the mind that tries to analyze
privacy: the privacy
of private property; privacy as a proprietary interest in
name and image; privacy as the keeping of one’s affairs to oneself;
the
privacy of the internal affairs of a voluntary association or of a business;
privacy as the physical absence of others who are
unqualified by kinship,
affection or other attributes to be present; respect for privacy as the respect
for the desire of another
person not to disclose or to have disclosed
information about what he is doing or has done; the privacy of sexual and
familial affairs;
the desire for privacy as desire not to be observed by another
person or persons; the privacy of the private citizen as opposed to
the public
official; and these are only a few.” Allen points out that the concept of
privacy is uniquely elastic, and offers
her own definition as being based on the
law providing restricted access to individuals, to their mental states and to
information
about them.
3[6] Bernstein above n 33.
See too Mistry v Interim Medical and Dental Council of South Africa and
Others 1998 (4) SA 1127 (CC) at para 27[1998] ZACC 10; ; 1998 (7) BCLR 880 (CC) at para
20.
3[7] Id at para 67.
3[8] National Coalition for Gay
and Lesbian Equality and Another v The Minister of Justice and Others 1999
(1) SA 6 (CC); 1998 (12) BCLR (CC) at para 32.
3[9] See the discussion in
Prinsloo v Van der Linde and Another [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR
759 (CC) at paras 18-21.
4[0] Allen above n 35 at 173 states
that “Numerous state and federal courts have denied that the
constitutional privacy right recognized
in landmark contraception, abortion, and
sexual privacy cases starting with Griswold applies to commercial
sex.” See, however, In re P 400 NYS 2d 455.
4[1] [1984] USSC 173; 468 US 609 (1984).
4[2] Id at 617-8.
4[3] Id at 631 and 636.
[4]4 Allen above n 35 at 169-70.
4[5] Above n 38.
4[6] Id at para 32.
4[7] Brennan J in Roberts v
United States Jaycees above n 41 at 620.
4[8] 1995 (3) SA 391 (CC); 1995 (6)
BCLR 665 (CC).
4[9] Id at para 104.
5[0] See paras 80-4.
5[1] It was indeed considerations of
this kind that led the Wolfenden Commission to conclude that the damage done to
the administration
of justice through attempts to suppress prostitution was
disproportionate to the public ends served: better that the law concentrate
on
dealing with public nuisance dimension of prostitution than with prostitution
itself. Report of the Committee on Homosexual Offences and Prostitution
(Wolfenden), Cmnd No 247 (1957) London: HMSO at paras 222-97. Similar
arguments are summarised in D Richards “Commercial Sex and the Rights
of
the Person: A Moral Argument for the Decriminalization of Prostitution”
(1979) 127 University of Pennsylvania Law Review 1195 on the basis of
experience in the USA.
5[2] Section 35(1) of the interim
Constitution reads: “In interpreting the provisions of this Chapter a
court of law shall promote
the values which underlie an open and democratic
society based on freedom and equality . . .”.
5[3] The study, Pornography and
Prostitution in Canada: Report of the Special Committee on Pornography and
Prostitution Vol 2 (Canadian Government Publishing Centre, Ottawa 1985),
clearly indicates that the regulation of prostitution and associated activities
has been dealt with in a variety of ways by individual states. In the United
Kingdom, for example, criminalisation has been limited
to solicitation and
brothel-keeping, and not prostitution per se (at 479-82). A similar approach
has also been favoured by Canada
and other countries whose legal systems have
been strongly influenced by the United Kingdom (at 403-29). In the United
States, brothel-keeping
is only permitted in some parts of Nevada, while both
brothel-keeping and prostitution are forbidden in all other states (at 473-7).
In Australia, at least two states, namely New South Wales and Victoria, have
taken steps towards a less proscriptive approach towards
prostitution. This can
be contrasted, however, with the stricter attitude that is adopted by the states
of Queensland and Western
Australia to sexual offences in general, and to
prostitution-related activities in particular (at 482-90). The situation in
continental
Europe varies from country to country, and even from time to time.
For many years, brothels were a feature of life in France. They
were later
criminalised, but recent trends indicate moves towards making them lawful again
(at 495-6). Regulation of prostitution
in the Netherlands and Germany takes
place in the form of so-called “red light” districts in which
prostitutes can function
in an organised fashion (at 497-502). It appears as if
it is only in Sweden where the customer, and not the prostitute, is subject
to
criminal prosecution (at 502-4). Finally, in India, legislation is aimed at the
suppression of commercialised vice, namely, traffic
in women and girls, for the
purposes of prostitution as an organised means of living, and not at the
penalisation of individual prostitutes
or of prostitution in itself. See A Kant
Women and the Law (APH Publishing, Delhi 1997) at 124-5.
5[4] See para 99 above.
[5]5 Above n 51 at para 61.
5[6] Above n 38.
5[7] Id at para 37.
5[8] Report of the Ad Hoc Committee
of the President’s Council on the Immorality Act (Act 23 of 1957) (14
August 1985). See House of Delegates Debates, 6 October 1987, Colls
3843-3861; House of Representatives Debates, 7 October 1987, Colls
3423-3433; and House of Assemblies Debates, 15 February 1988, Colls
884-899.
5[9] Carmichele v Minister of
Safety and Security and Another [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995
(CC) at para 54.
6[0] See R v Butler (1992) 8
CRR (2d) 1 at 30 where Sopinka J reasoned as
follows:
“To impose a certain standard of public and sexual morality, solely
because it reflects the conventions of a given community,
is inimical to the
exercise and enjoyment of individual freedoms, which form the basis of our
social contract . . . . On the other
hand, I cannot agree with the suggestion
of the appellant that Parliament does not have the right to legislate on the
basis of some
fundamental conception of morality for the purposes of
safeguarding the values which are integral to a free and democratic society.
As
Dyzenhaus . . .
writes:
‘Moral disapprobation is recognized as an appropriate response when it has
its basis in Charter
values.’
. . . [M]uch of the criminal law is based on moral conceptions of right and
wrong and the mere fact that a law is grounded in morality
does not
automatically render it illegitimate. In this regard, criminalizing the
proliferation of materials which undermine another
basic Charter right
may indeed be a legitimate
objective.”
6[1] As stated in the Preamble of
the interim Constitution.
6[2] R v Big M Drug Mart Ltd
(1985) 13 CRR 64.
6[3] Above n 17 at para 88.
6[4] Above n 62 at 96-7.
6[5] Above n 60 at 31ff.
[6]6 [1961] USSC 101; 366 US 420 (1961).
6[7] Id at 431.
6[8] Id at 444-5.
6[9] Shabalala and Others v
Attorney-General of Transvaal and Another [1995] ZACC 12; 1996 (1) SA 725 (CC); 1995 (12)
BCLR 1593 (CC) at para 26.
7[0] See section 229 of the interim
Constitution which provides that “Subject to this Constitution, all laws
which immediately before
the commencement of this Constitution were in force in
any area which forms part of the national territory, shall continue in force
in
such area, subject to any repeal or amendment of such laws by a competent
authority.”; and item 2 of schedule 6 of the final
Constitution which
provides that “(1) All law that was in force when the new Constitution
took effect, continues in force,
subject to – (a) any amendment or repeal;
and (b) consistency with the new Constitution. (2) Old order legislation that
continues
in force in terms of subitem (1) – (a) does not have a wider
application, territorially or otherwise, than it had before the
previous
Constitution took effect unless subsequently amended to have a wider
application; and (b) continues to be administered by
the authorities that
administered it when the new Constitution took effect, subject to the new
Constitution.” See also, the
supremacy clause in section 2 of the 1996
Constitution: “This Constitution is the supreme law of the Republic; law
or conduct
inconsistent with it is invalid, and the obligations imposed by it
must be fulfilled.”
7[1] See Lawrence above n 17
at para 157. See too Brown v Board of Education 347 US 483 at 492-3
where the Court stated: “In approaching this problem, we cannot turn the
clock back to 1868 when the Amendment was
adopted, or even to 1896 when
Plessy v. Fergusson was written. We must consider public education in
the light of its full development and its present place in American life
throughout
the Nation. Only in this way can it be determined if segregation in
public schools deprives these plaintiffs of the equal protection
of the
laws.”
7[2] See para 101 above.
7[3] Section 11 of the interim
Constitution.
7[4] Above n 38 at para 58-9.
7[5] Citing Fraser v
Children’s Court, Pretoria North and Others 1997 (2) SA 261 (CC); 1997
(2) BCLR 153 (CC) at paras 50-1; First National Bank of South Africa Ltd v
Land and Agricultural Bank of South Africa and Others; Sheard v Land and
Agricultural Bank
of South Africa and Another [2000] ZACC 9; 2000 (3) SA 626 (CC); 2000 (8)
BCLR 876 (CC) at para 13; and S v Steyn [2000] ZACC 24; 2001 (1) SA 1146 (CC); 2001 (1)
BCLR 52 (CC) at paras 45-6.
7[6] Above n 53.
[7]7 Id at 507.
7[8] Id at 508.
7[9] Fose v Minister of Safety
and Security 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).
8[0] National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000
(2) SA 1 (CC); 2000 (1) BCLR 39 (CC).