IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO: CCT 31/01

In the matter between: ELLEN JORDAN LOUISA JOHANNA FRANCINA BROODRYK CHRISTINE LOUISE JACOBS and THE STATE AMICUS CURIAE: SEX WORKERS EDUCATION AND ADVOCACY TASK FORCE CENTRE FOR APPLIED LEGAL STUDIES REPRODUCTIVE HEALTH RESEARCH UNIT COMMISSION FOR GENDER EQUALITY CROUS & GEMELIARIS 1st Amicus 2nd Amicus 3rd Amicus 4th Amicus 5th Amicus Respondent

1st Appellant 2nd Appellant 3rd Appellant

SUBMISSIONS BY SEX WORKERS EDUCATION AND ADVOCACY TASK FORCE, CENTRE FOR APPLIED LEGAL STUDIES AND THE REPRODUCTIVE HEALTH RESEARCH UNIT

1.

INTRODUCTION

2 The intervening parties and their interest

1.1

These submissions are made on behalf of the Sex Workers Education and Advocacy Task Force (SWEAT), the Centre for Applied Legal Studies (CALS) and the Reproductive Health Research Unit (RHRU).

1.2

These proceedings concern firstly, the constitutional validity of section 20(1)(aA) of the Sexual Offences Act, No 23 of 1957 (the Act) in terms of which (a)ny person who has unlawful carnal intercourse, or commits an act of indecency, with any other person for reward is guilty of an offence. A order made by Mr Justice

Spoelstra and Mr Justice Webster declaring this section invalid is before the Court in confirmation proceedings.

1.3

In accordance with the Order of this Court dated 3 October 2001, the proceedings also involve a direct appeal to the Constitutional Court against the decision of the court below dismissing the first and second appellants appeals against their convictions for contravening section 2 of the Act. Section 2 provides: (a)ny person who keeps a brothel shall be guilty of an offence.

3 1.4 Leave to intervene as an amicus curiae was granted by this Court in relation to the confirmation proceedings regarding section 20(1)(aA) of the Act. In accordance with the directions issued by this Court on granting leave to appeal, the amicus was invited to make submissions also in relation to section 2 of the Act, which we accordingly do.

1.5

SWEAT is an organisation which works towards the empowerment of sex workers, the decriminalisation of adult commercial sex work and access to police, legal, health, social welfare services, fair and safe working conditions and the promotion of safer sex work practices. This is achieved through information, education, training, advocacy and awareness raising programmes, which are informed by participatory research into the diversity of needs of sex workers.

1.6

SWEATs interest in these proceedings is to enable it to further its primary objectives which are to attempt to ensure that sex workers are treated in a fashion that accords with human rights, to promote the health and safety of sex workers and those members of the public who utilise their services and to attempt to create an understanding amongst sex workers, owners and managers of agencies and the general public, of the link between proper working and living conditions and health.

1.7

The RHRU is a research organisation based at the Department of Obstetrics and Gynaecology, Chris Hani Baragwanath hospital at the University of the Witwatersrand. For the past few years it has been conducting research, inter alia, into interventions around the health care of sex workers. It has in the process 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, including the health of the sex workers involved and the conditions that they work in. The interest

of the RHRU is to ensure that the perspectives and knowledge gained through this research and experience are considered in the deliberations about the validity of section 20(1)(aA) and section 2 of the Act.

1.8

CALS is an organisation based at the University of Witwatersrand, which conducts research and engages in advocacy, litigation and training for the promotion and protection of human rights in South Africa. It has a Gender Research Project and undertakes research and focuses on questions of womens human rights and sex and gender equality with particular reference to the promotion of equality for disadvantaged groups of women. The Aids Law Project at CALS conducts research and litigation on issues relating to HIV/AIDS,

5 human rights and the law. CALS has developed knowledge and

expertise with regard to the most marginalized groups of women, including sex workers and those with HIV/AIDS. Its interest in this

matter is to ensure that the interests of these groups are considered in light of this knowledge and expertise, in the deliberations relating to the validity of section 20(1)(aA) and section 2 of the Act.

1.9

SWEAT, CALS and the RHRU have introduced evidence in support of their contentions. In many instances the State has not advanced evidence in rebuttal but has either offered a bald denial or a complaint of hearsay. Given the representative nature of the

organisations concerned, it is inevitable that some of the evidence of the sort under consideration will technically be of a hearsay nature. This does not render it inadmissible.

Permanent Secretary, Department of Welfare, EC v Ngxuza 2001 (4) SA 1184 (SCA) par 17

Overview of the argument

1.10

At issue in the present case is the constitutional validity of two provisions of the Sexual Offences Act which, taken together, render it illegal, for a class comprised mainly of women, to engage in sexual

6 conduct for reward. Although there are male and trans-gendered sex workers the majority of sex workers are women. The sexual conduct in question is not limited to "unlawful carnal intercourse", as defined, but extends to an undefined class of acts of "indecency". The sexual conduct covered by the prohibition, when committed by a married couple or when not engaged in for "reward", would be entirely lawful. It is only the element of "reward" which renders conduct otherwise lawful, a criminal offence and which may ultimately result in imprisonment.

1.11

The prohibition on keeping a brothel effectively ensures that sex workers have no institutional support. The definition of "brothel"

ensures that the prohibition extends to the use of premises for various forms of sexual activity even when no question of "reward" arises at all. It outlaws not simply the use of premises for commercial sex work, but extends also to the use of premises for the purposes of "unlawful carnal intercourse" or for "any other lewd or indecent purpose".

1.12

The Sexual Offences Act had its genesis in the Immorality Act, the name having changed only in 1988. The Immorality Act embodied some of the most deeply offensive aspects of apartheid. It was a consolidating measure and incorporated much that was contained in

7 the Immorality Act 5 of 1927 which was introduced "to prohibit carnal intercourse between Europeans and Natives and other acts in relation thereto ". Act 5 of 1927 was amended in 1950 (by Act 21 of 1950) principally to substitute the word "Native" with the word "nonEuropean". In 1957 the Act was amended to "consolidate and

amend the laws relating to brothels and unlawful carnal intercourse". The Act included a consolidation of sexual offences previously contained in provincial laws and ordinances. Notorious among its provisions was section 16 which prohibited unlawful carnal intercourse between white persons and coloured persons, the latter being defined as any person other than a white person.

1.13

As its original title made plain, the Act concerned itself with what its drafters considered to be immoral sexual conduct. Although some of the more offensive features of the Act have been repealed or declared unconstitutional, the legislative purpose was and remains to impose a particular sexual morality on the South African public.

1.14

Sex workers, in the main, are a distinct class of women who, by reason of the criminal prohibition on their work, are peculiarly vulnerable to abuse, including violence, at the instance of clients, landlords, agents and State officials. By reason of the criminal

prohibition, they are substantially disempowered from seeking the

8 law's protection against abuse. Reporting cases of assault inevitably exposes sex workers to the risk of prosecution. Exploitative labour practices cannot be redressed. Access to social support services is effectively cut off. In addition, sex workers are stigmatised as moral outcasts and the vectors of disease.

1.15

The State's evidence seeks to emphasise the violence (including murder) and abuse to which sex workers are subject. It highlights the social conditions giving rise to sex work and characterises the work as degrading and dehumanising. Yet, paradoxically, it comes to

court to defend a measure which has no bearing upon protecting sex workers from abuse but which contributes to their status as outcasts from society and significantly diminishes their capacity to seek redress from abuse.

1.16

Appreciating the avowedly moral foundations to the Statute, there are three broad themes which the State advances :

1.16.1

First, the State seeks to avoid the moral foundations of the Act by advancing a purpose and justification that is morally "neutral" but which, in our submission, has nothing whatever to do with the actual purpose of the legislation. It will be argued that the State's attempt in this regard is ill-fated.

9 Absent amendment, the legislative purpose is clear and unchanged. It is not open to the State now to invent a new purpose.

1.16.2

Second, the State acknowledges the short-comings of the present statute but contends that, imperfect as it is, it is one of a range of policy options at the Legislature's disposal. It argues that the Legislature's choice to opt for prohibition rather than regulation is constitutionally permissible. It will be submitted that this begs the question of whether the choice actually made by the Legislature in the present case is one that conforms with the precepts of the Bill of Rights. That there may be other options open to the Legislature is simply beside the point.

1.16.3

Third, the State paints a picture of sex workers as a class of persons who are degraded, abused, involved directly and indirectly in criminality and who are the vectors of disease. Hence, it is argued, that the prohibition on sex workers is justified. It will be submitted that the social ills allegedly

associated with or inherent in sex work identified by the State, even if correct, cannot justify the prohibition in question. On the contrary, it will be submitted that the

10 vulnerability and abuse of sex workers is the very product of and is exacerbated by the criminal prohibition.

1.17

These submissions address the following contentions:

1.17.1 Although the validity of section 20(1)(aA) and sections 2 and 3 of the Act probably falls to be determined in accordance with the provisions of the Constitution of the Republic of South Africa Act 200 of 1993, (the interim Constitution), we agree with the State, that the outcome is not dependent on which Constitution applies. We will generally refer to the interim Constitution.

1.17.2 Section 20(1)(aA) of the Act is an unjustifiable violation of section section 11 of the interim Constitution (section 12 of the final Constitution) in that it denies a sex worker the right to have control over her own body and that it deprives her of her freedom without just cause.

1.17.3 Section 20(1)(aA) also constitutes an unjustifiable violation of the right in section 26 of the interim Constitution (section 22 of the final Constitution) freely to engage in economic activity and to pursue a livelihood anywhere in the national territory. It does not constitute a measure contemplated by section 26(2) of the interim Constitution.

11

1.17.4 Section 20(1)(aA) constitutes an unjustifiable violation of the right to dignity enshrined in section 10 of the interim Constitution (and section 10 of the final Constitution).

1.17.5 Section 20(1)(aA) constitutes an unjustifiable violation of the right to privacy protected under section 13 of the interim Constitution (section 14 of the final Constitution).

1.17.6 Section 20(1)(aA) constitutes an unjustifiable violation of the right to equality protected under section 8 of the interim Constitution (section 9 of the final Constitution). In this regard, we broadly

support the contentions presented on behalf of the Commission for Gender Equality. We set out briefly in these heads our argument on equality.

1.17.7 Sections 2 and 3(b) and (c) of the Act constitute an unjustified violation of a sex workers section 11 right to freedom, section 26 right to free economic activity, section 10 right to dignity and section 13 right to privacy.

12 1.17.8 Section 2 is void because of its vagueness, which renders it inconsistent with the rule of law which underpins the provisions of both the interim and final Constitutions.

1.17.9 It will be submitted that the appropriate order would be one along the lines sanctioned by this Court in National Coalition for Gay and Lesbian Equality & Ano v Minister of Justice & Others 1999 (1) SA 6 (CC) namely:

i. Section 20(1)(aA) of the Sexual Offences Act 23 of 1957 is declared to be inconsistent with the Constitution of the Republic of South Africa, 1993 and invalid;

ii. Section 2 of the Sexual Offences Act 23 of 1957 is declared to be inconsistent with the Constitution of the Republic of South Africa, 1993 and invalid.

iii. Section 3 of the Sexual Offences Act 23 of 1957 is declared to be inconsistent with the Constitution of the Republic of South Africa, 1993 and invalid.

iv. In terms of section 172(1)(b) of the 1996 Constitution, the order of invalidity shall not invalidate any conviction for the

13 offence committed after 27 April 1994 unless an appeal from or review of, the relevant judgment is pending, or the time for noting of an appeal from that judgment has not yet expired, or condonation for the late noting of an appeal or late filing of an application for leave to appeal is granted by a court of competent jurisdiction.

1.18

Argument relating to section 20(1)(aA) will be dealt with first and thereafter we deal with argument relating to sections 2 and 3 of the Act.

2.

THE NATURE, PURPOSE AND AMBIT OF THE PROHIBITIONS ON PROSTITUTION AND THE KEEPING OF A BROTHEL

Section 20(1)(aA)

2.1

Section 20(1)(aA) provides that :

any person who has unlawful carnal intercourse, or commits an act of indecency, with any other person for reward shall be guilty of an offence.

14 2.2 In the Report of the Committee on Homosexual Offences and Prostitution 1957 (the Wolfenden Committee) it was observed at paragraph 225 :

Prostitution is a social fact deplorable in the eyes of moralists, sociologists and, we believe the great majority of ordinary people. But it has persisted in many civilisations throughout the centuries, and the failure of attempts to stamp it out by oppressive legislation shows that it cannot be eradicated through the agency of the criminal law.

2.3

It seems that prior to the introduction of section 20(1)(aA) of the Act in 1988 by section 7(a) of the Immorality Amendment Act 2 of 1988, prostitution per se was not prohibited. In S v H 1986 (4) SA 1095 (T) the court observed at 1098 F G:

A further circumstance that must not be overlooked is that I was not referred to any earlier or existing statute which makes prostitution a crime. I was not able to find any such provision. Milton and Fuller vol III at 343 sum up the position in the followings words: The law (and society) adopts an ambivalent attitude to this oldest of professions. On the one hand prostitution is condemned as a social evil while on the other hand it is tolerated insofar as it is not a criminal offence for a woman to be a prostitute nor is it an offence for a man to have sexual relations with a prostitute See too S v H 1988 (3) SA 545 (A) upholding the TPD decision

15 2.4 The circumstances and justification for the introduction of an outright prohibition on prostitution in 1988 will be discussed in more detail below.

2.5

For present purposes, it is important to emphasise the antiquity of the profession. Milton and Cowling, South African Criminal Law and Procedure, vol III observe at 43 :

Commercial prostitution is a development from ancient practices of religious or temple prostitution. Introduced in ancient Greece it was tolerated there and in Rome and, later, in medieval Europe, establishing a tradition that prostitution ought to be tolerated and regulated as a necessary evil. However, the stricter protestant ethic of the post-reformation era viewed prostitution as wholly immoral and demanded its suppression by the criminal sanction. The view has received recognition in, among other countries, Britain and the United States of America.

The authors state further at 46 : It is a feature of the Anglo-American approach to prostitution that while it was considered necessary to prohibit aspects and manifestations of prostitution in the public interest, it was deemed neither necessary nor appropriate to prohibit the occupation of prostitute. Accordingly, under this approach, engaging in sexual intercourse in order to receive a material or pecuniary reward was not prohibited by penal sanction. Until very recently this tradition pertained in South Africa. In 1988, however, Parliament was moved to amend the Sexual Offences Act so as to prohibit persons from being prostitutes. The prohibition is, however, directed only at prostitutes and not their customers.

16 2.6 The offence was introduced in 1988. The Report of the ad hoc

committee of the States Presidents Council on the Immorality Act (PC1/1985) prepared prior to the introduction of the 1988 amendment Act stated, at paragraph 4.13 :

The committee accepts that prostitution unfortunately cannot be eradicated by measures under the criminal law. In fact the committee has evidence that penal sanctions do little, if anything, to make a hardened prostitute abandon her way of life. The committee therefore takes cognisance of the fact that the most effective way of combating prostitution would be to deal with the public manifestations under the criminal law and leave other manifestations to public opinion.

2.7

At 4.36 of the Committees report, however, the Committee expressed concern about what it perceived as the limits of section 20(1)(a) of Act which provides that any person who knowingly lives wholly or in part on the earnings of prostitution is guilty of a criminal offence and in particular that the section is aimed only at the male or female exploiter of a prostitute. The Committee took the view that to make the combating of prostitution more effective, the relevant section should be extended to bring the prostitute who wholly or in part or to a material extent lives on the earnings of prostitution within the ambit of the criminal law. This recommendation was made in view of the fact that prostitution is at present often practised by the call girl, the mobile masseuse and the escort clubs, over whom

17 the Act at present has no adequate control. The Committee

realises that the proposal will not eradicate prostitution, but it is an attempt to curb prostitution. The Committee recommended that the provision be accompanied with warning provisions and rehabilitative punitive responses to militate against the stigma of conviction. Furthermore, the Committees recommendations were limited to conduct that constituted living on the earnings of prostitution and thus to a pattern of behaviour rather than single acts.

2.8

The provision that was enacted went further than what was recommended by the Committee by merely making a criminal offence all unlawful carnal intercourse or commission of acts of indecency for reward.

2.9

The debate on the proposed measure was characterised by a moralistic and puritanical tone. The amendments were described by the Minister of Justice as emanating mainly from the Presidents Council recommendations and as being a matter of morals.

J Milton The Sexual Offences Act 1988 South African Journal of Criminal Justice 269 at 272 House of Assembly Debates 15 February 1988 Colls 884 899

18 House of Representatives Debates 7 October 1987 Colls 34253433 House of Delegates Debates 6 October 1987 Colls 3843 3861 See also J Milton Prostitution : Current Debates in S Jagwanth, P Schwikkard and B Grant Women and the Law at 135

2.10

The moralistic overtones and stigmatization of prostitutes is scarcely surprising. History has condemned them to an underclass constantly vulnerable to exploitation and abuse. These attitudes manifest

themselves in judicial pronouncements. Thus, for example, in R v Seligman 1908 TS 390, Wessels J observed at 391 :

Now, with regard to the first point, Mr Gregorowski argues that the magistrate should not have accepted the evidence of the two witnesses Annie Harris and Rosie Miller; firstly, because Annie Harris evidence is not supported aliunde, and secondly because they are both prostitutes, and the evidence of prostitutes is always tainted. Now there can be no doubt that a magistrate who has to try a case of this kind has to be exceedingly careful before he accepts the testimony of prostitutes, because they are a class of people of very low morality, who do not scruple to tell untruths in the witness box. That has been human experience for ages past. At the same time, notwithstanding the fact that they are not very trustworthy persons, they must be protected; and often their testimony has to be accepted, but only when from the surrounding circumstances it appears that their story is the more acceptable. If it were otherwise they would be placed completed beyond the paleof justice. Now, although prostitutes are notoriously untrustworthy persons, yet at the same time they are not utterly unhuman. They are not to be regarded as people who would maliciously, and for no cause whatsoever, endeavour to place a human

19 being, who is a stranger to them and who has done them no injury, in a prison. (Emphasis added)

2.11

A telling example of the denigration of prostitutes is given by Lord de Villiers CJ in Green v Fitzgerald and Others 1914 AD 88 at 102. In dealing with the prosecution and punishment for adultery he observed :

In the Cape the punishments were no less drastic. In 1756, for instance, a couple were tried for adultery, and on being convicted, the male prisoner was sentenced to imprisonment, with bread and water only for a month, and to payment of a heavy fine, and the female prisoner was sentenced to stand for three consecutive Sundays before one of the Church doors with a card on her breast inscribed with the word whore.

2.12

A peculiar feature of the newly created offence in section 20(1)(aA) is what has been referred to as the double standard in terms of which the offence punishes the sex worker but not the customer. and Cowling, op cit at 47, footnote 1, argue that: Milton

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.

They observe further at 41 :

20

Why then does the law not penalize the conduct of the client? One obvious explanation is the historic double standard applying in regard to matters of sexual morality. In essence, the standard requires women to be chaste, while allowing men to be sexually unchaste. Historically prostitutes who are almost always women, and the unchastity in their behaviour justified their being punished, while the behaviour of their male clients, being not considered unchaste, was not seen to be deserving of punishment. This crude form of sexist gender discrimination, it is submitted, underlies the provisions of section 20(1)(aA) of the Sexual Offences Act 1957. S v Jordan and Others 2001 (10) BCLR 1055 (T) NDPP v Phillips 2001(2) SACR 542, paras 62 and 63

2.13

The interpretation of the section that it punishes the sex worker and not the client is borne out by the ordinary meaning of the section. The person hit by the prohibition is the person who commits the act for reward. Inherent in the receipt of a reward is the idea that there is some recompense or return for some service. The nature of the act of sex work envisages recompense, or reward, for service of a sexual nature.

2.14

The State disputes this interpretation. In essence they advance three arguments:

21 2.14.1 First, they contend that as a matter of interpretation the section punishes both sex worker and customer;

2.14.2 Second, they contend that even if the section only proscribed the conduct of the sex worker and not that of the customer, the latter would be guilty of being an accomplice;

2.14.3 Third, they contend that the prohibition is reasonably capable of the interpretation for which they contend and as such should be interpreted in accordance with section 39(2) of the Constitution so as to make the customer criminally liable.

2.15

We have already discussed the ordinary interpretation of the section. We submit that the offence is defined clearly to criminalise only the sex worker and not the customer. We are unaware of any case, and the State has cited none, in which a customer has been prosecuted in terms of the section (whether as perpetrator or accomplice). At a minimum, therefore, the section has been applied in a manner which criminalises only the sex worker.

2.16

The State seeks to advance an interpretation, either based upon the ordinary meaning of the statute, or having resort to section 39(2),

22 which creates criminal liability. This runs counter to long established principles of interpretation, which require a restrictive interpretation of penal statutes. This principle finds expression in numerous cases. In R v Ackerman 1931 TPD at 69 De Villiers J stated that: A section creating a criminal offence should not lightly have its penal scope extended beyond the plain meaning of its language. Cited by Corbett JA (dissenting) in S v Naude 1975 (1) SA 681 (A) at 703 G-H

2.17

Put differently, if there is a reasonable interpretation which will avoid the penalty in any particular case the Court should adopt that construction.

R v Tawell and Ano 1937 TPD 387 at 389 Swart v Van den Bergh NO and Ano 1954 (3) 755 (T) at 758H759B Standard Credit Corporation Ltd v Strydom and Others 1991 (3) SA 644 (W) at 651G-I See also: Fundstrust (Pty) Ltd (In Liquidation) v Van Deventer 1997 (1) SA 710 (A) at 735 G-I

23 2.18 Recourse to section 39(2) of the Constitution to create a criminal offence is, in our submission, anomalous and not in accordance with the spirit, purport and objects of the Bill of Rights. Indeed, it would achieve no more than the creation of a formal equality unrelated to a substantive view of equality which ignores the context in which sex work and the enforcement of the criminal provisions takes place. Such an approach would also be at odds with the other rights in the Bill of Rights.

2.19

We submit further that the argument based upon liability as an accomplice is without substance. A statute can, either expressly or by necessary implication, exclude the liability of an accomplice.

R v W 1949 (3) SA 772 (A) at 778 S v Kellner 1963 (2) SA 435 (A) at 447 A-D

2.20

Consideration of the Act as a whole shows that the legislature has contemplated and made express provision for cases where persons who assist with or further the commission of offences under the Act are to fall within its ambit. Thus, for example, section 3 deals with deeming provisions on keeping a brothel. Section 9 deals with a parent or guardian procuring defilement of a child or ward. Section 12A deals with assistance for purposes of unlawful carnal

24 intercourse. Section 19 prohibits any person from enticing, soliciting or importuning in any public place for immoral purposes. It is clear, therefore, that where the Act intended to create criminal offences of an accomplice nature, it did so explicitly.

2.21

The ambit of the section is wide.

It does not refer to the term

prostitute but strikes at any person. It is for this reason that Van Dijkhorst J in S v C 1992 (1) SACR 174 (W) observed at 176 e g :

Milton and Cowling South African Criminal Law and Procedure e ed vol 3 paragraphs E3 84, 85, seek to limit section 20(1)(aA) to acts committed by professional prostitutes. It is submitted by the authors that the section should be strictly construed so as to be confined to those who habitually and indiscriminately engage in sexual relations for reward. I have difficulty with this point of view. The wording of section 20(1)(aA) does not limit its offenders to the category of professional prostitutes. It clearly indicates all who for reward have unlawful carnal intercourse or commit acts of indecency, the novice as well as the hardened street-walker. Where the legislature intended to refer to prostitutes and their profession it did so explicitly, as is evidenced by sections 9(1)(b), 10(b) and (c), 12(3), 14(2)(a), 20(1)(a), 20(2) and 21(3).

2.22

The section is also confined to sexual relations outside of marriage. This flows from the definition of unlawful carnal intercourse defined in section 1 to mean carnal intercourse otherwise than between husband and wife. The anomaly that flows from this is well

25 illustrated by the case of Wyndham-Quin v Wyndham-Quin 1978 (4) SA 843 (A). In that case, the issue was whether a condition imposed by a wife that she receives payment for the exercise of marital privileges, constituted malicious desertion. The husband had at all times consented to exercising his marital privileges subject to the condition imposed by his wife. It was held that there was no denial of marital privileges. Such conduct would not constitute

prostitution by reason only of the fact that the parties were married to each other.

Section 2 of the Act: the offence of keeping a brothel

2.23

According to Milton and Cowling, premises specially set aside as places of resort for the purposes of prostitution are a feature of the profession that is as old as the profession itself. South African The

colonial common law did not penalize keeping a brothel.

prohibitions on keeping brothels that were to be replaced by s. 2 were introduced first in the Transvaal in 1899 and shortly thereafter in the other colonies.

See Milton and Cowling South African Criminal Law and Procedure, vol III at 57

26 2.24 Section 2 of the Act provides that :

Any person who keeps a brothel shall be guilty of an offence.

2.25

The legislature has cast the net widely in defining the ambit of section 2. A brothel is defined in section 1 of the Act 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. A house is defined as including a dwelling-house, building, room, out-house, shed or tent or any part thereof.

2.26

In S v M 1977 (4) SA 886 (A), at 895G-H the terms used for the purposes of prostitution were interpreted to mean consistently or habitually so used and not to refer to a house or place where a single act or a few isolated acts of prostitution may have taken place.

2.27

Keeping a brothel was in that case, at 896B, interpreted to mean exercising powers of management and control over the brothel or to carry on and manage, to conduct as ones own.

27 2.28 What is envisaged is management and control of a more or less permanent character. The owner of the premises does not

necessarily keep them: the offence requires control or supervision of the running of the brothel.

R v Richards 1906 TS 700

2.29

This conception of keeping a brothel normally implies the involvement of both a sex worker, or sex workers, and person/s who manage the brothel. Where, however, a sex worker hires or gains de facto control of premises and while maintaining control thereof, proceeds to use the premises habitually for the purpose of prostitution, she too commits the offence of keeping a brothel.

S v M 1977 (4) SA 886 (A) at 897G-H

2.30

The Court in that case left it open whether the wording of the Act necessarily connotes the involvement of a plurality of sex workers.

S v M 1977 (4) SA 886 (A) at 898, esp 898G-H

28 2.31 Section 3 deems certain persons to keep a brothel as envisaged by section 2. At issue in the present appeal are sections 3(b) and (c) which deem the following persons to keep a brothel for the purposes of section 2:

(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;

2.32

In S v D it was held that all that section 3 does is place the persons listed in that section in the same legal position as a keeper of a brothel under section 2. It does not mean that a person who is

proved to manage a brothel, for example, is presumed to be guilty of the section 2 offence. The state must still prove the other elements of the offence, including mens rea and that the place is a brothel.

S v D 1975 (4) SA 835 (T) at 836F and 837F-H

2.33

A sex worker is not deemed to keep a brothel for taking in moneys from prostitution herself. Money is regarded as being moneys taken in a brothel only after the sex worker has handed over the remainder

29 of the proceeds. But a sex worker may be prosecuted under the section 3(c) deeming provision where she hands over the full proceeds and thereafter receives a salary.

S v F 1975(3) SA 167 (T)

2.34

The first and second appellants in the present matter were convicted on charges of contravention of section 2 of the Act in that they kept a brothel. The first appellant admitted that she was an owner of a brothel and actively managed and promoted the business of the brothel. The second appellant admitted that she kept a brothel by virtue of the deeming provisions of sections 3(b) and (c) of the Act in that she was a salaried employee of first appellant and did duty as a driver and receptionist.

3.

SEX WORKERS AS A GROUP: FACTUAL BACKGROUND

3.1

By way of overview, the evidence and the literature and the facts of which this court may take judicial notice reveal a picture of a segment of society largely poor, who resort to sex work for economic reasons, who are vulnerable to exploitation at the hands of police, clients, pimps, landlords and even partners and who are the victims of

30 violence. These are the consequences that flow from the criminal prohibition of a particular kind of work stigmatised as immoral.

3.2

Many people regard sex workers as inferior beings thought to be morally corrupt and a danger and nuisance to society. These

attitudes result in sex workers being treated in degrading and inhuman ways. Many are raped, assaulted, verbally and emotionally abused. This treatment affects sex workers physical, psychological and emotional well-being.

3.3

Under the laws presently impugned, sex workers, already viewed as a marginal and stigmatised group, are relegated to the ranks of criminals. This criminal status lends legitimacy to discriminatory and unsympathetic attitudes by those in the health, welfare and police services. Because the work is illegal, sex workers are unprotected by labour laws and the law of contract and are unable to mobilize or otherwise ensure safe working conditions. Their vulnerability as a group is thus exacerbated, deprived as they are of the benefits of the law.

3.4

Sex workers are a diverse group of people and their experiences differ accordingly. Many people who sell sex are already extremely vulnerable as a result of gender inequality and poverty. Often,

31 women sell sex because their options are limited and it provides a means to earn enough money to feed, clothe and educate their children. Though all sex workers are vulnerable to exploitation and abuse, not all sex workers are exploited or abused. Many work in safe comfortable environments with moral and emotional support from co-workers and families. All sex workers are stigmatised as part of a criminal class.

3.5

The vulnerability of prostitutes to rape is well documented. Susan Edwards Female Sexuality and the Law (1981) observes at 62:

On the one hand, history has shown that a prostitute is no more or less immune from sexual attack than a virgin, although opinion on this matter has been conflicting Yet despite these various judicial utterances, the fact that a woman is a prostitute has been taken, in the trial process, as material to whether she consented to sexual intercourse or not. Since consent is determined by both material evidence and circumstantial evidence, it is very unlikely that a man would be convicted or rape of a woman known to be a prostitute. In theory, of course, all women come under the auspices and protection of the law; however in legal practice only certain women actually receive this legal protection. When a prostitute alleges that she has been raped the social construction of promiscuity is set in motion. The development of case law reflects the various ways in which the prostitute as complainant has been considered over time. The very paucity of judicial decision, reported in the law reports or not, gives some indication of the reluctance of prostitutes to bring a criminal charge and, should they so do, the tendency for police to dismiss such allegations as false.

32 3.6 One of the inevitable consequences of the prohibition on prostitution is that it engages the most intrusive methods of police surveillance. Milton puts the matter thus :

The criminalisation of prostitution per se now imposes upon the police a duty to gather evidence that individual prostitutes had engaged (a) in sexual intercourse or acts of indecency (b) for reward. In the nature of things such evidence is usually obtained either by spying upon the prostitute and her client or by a process of entrapment. Given the nature of the offence, entrapment to establish the choate offence would require the trapped to participate in the completed act of unlawful carnal intercourse or engage in an indecent act with the prostitute. At the least, a successful entrapment would require that the trap engage in such acts of preparation as would enable a charge of attempting to contravene the section. These sordid and demeaning activities are not only of dubious morality, but, more importantly, are costly in terms of manpower, and require the diversion of personnel from the combating of more serious crimes. These high enforcement costs seem quite inappropriate expenditure to achieve the eradication of that which history has taught cannot be eradicated.

J Milton The Sexual Offences Act 1988 South African Journal of Criminal Justice 269 at 272 - 273

3.7

These dubious methods of enforcement are borne out by the case law and the facts in this case.

S v C 1992 (1) SACR 174 (W) S v H 1956 (3) SA 545 (A) S v H 1986 (4) SA 1095 (T)

33

4.

THE INTERIM AND FINAL CONSTITUTIONS

4.1

The offences were apparently committed during the currency of the interim Constitution and for that reason we submit that the matter falls to be decided in terms of the interim Constitution.

Du Plessis and others v De Klerk and another 1996(3) SA 850 (CC) at para 20 S v Pennington 1997(4) SA 1076 (CC) at para 36 Fedsure Life Assurance v Greater Johannesburg TMC 1999(1) SA 374 (CC) at paras 110 and 113

4.2

We agree with the State, however, that there are no material differences between the interim and final Constitutions that would materially affect the outcome of this matter.

5.

SECTION 20(1)(aA): THE VIOLATION OF FREEDOM AS CONTROL OVER ONES OWN BODY

5.1

Section 11 of the interim Constitution provides:

34 11. Freedom and security of the person (1) (2) Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial. No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.

5.2

Under the interim Constitution, this Court recognised that the primary protection afforded by the right to freedom was physical integrity but recognised that there may well be cases where the right protected by section 11(1) was capable of embracing rights beyond physical integrity. In Ferreira v Levin NO 1996(1) SA 984 (CC) Chaskalson P observed at paragraph 184:

This does not mean that we must necessarily confine the application of section 11(1) to the protection of physical integrity. Freedom involves much more than that, and we should not hesitate to say so if the occasion demands it. But, because of the detailed provisions of Chapter 3, such occasions are likely to be rare. If despite the detailed provisions of Chapter 3 a freedom of a fundamental nature which calls for protection is identified, and if it cannot find adequate protection under any of the other provisions in Chapter 3, there may be a reason to look at section 11(1) to protect such a right. But to secure such protection, the otherwise unprotected freedom should at least be fundamental and of a character appropriate to the strict scrutiny to which all limitations of section 11 are subjected.

35 5.3 The 1996 Constitution carves out a specific right of bodily integrity or autonomy in section 12(2). provides: Section 12 of the 1996 Constitution

12.

Freedom and security of the person ( 1 ) Every person has the right to freedom and security of the person, which includes the right a. Not to be deprived of freedom arbitrarily or without just cause; b. Not to be detained without trial; c. To be free from all forms of violence from either public or private sources; d. Not to be tortured in any way; e. And not to be treated or punished in a cruel, inhuman or degrading way. ( 2 ) Everyone has the right to bodily and psychological integrity, which includes the right a. To make decisions concerning reproduction; b. To security in and control over their body; and c. Not to be subjected to medical and scientific experiments without their informed consent.

5.4

At a minimum section 12(2)(b) connotes the capacity to take decisions concerning ones own body including the right to use ones body, even through sexual means, for commercial gain.

5.5

The right to control over ones own body has its roots in the common law. It is this right that underpins the requirement that any medical procedure without informed consent is considered a violation of security of the person and the right of self determination.

36

Stoffberg v Elliot 1928 CPD 148 at 149 Mabaso v Felix 1981 (3) SA 865 (A) at 875C-D Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 145I-146D Castell v De Greef 1994 (4) SA 408 (C) at 421E-426H

5.6

In our submission, a sphere of inviolability associated with the right to control over ones body is included in the protection afforded by the interim Constitutions section 11(1) freedom right. This right

encompasses the autonomy or protection from interference in determining for oneself what to do with ones own body.

5.7

Ronald Dworkin in Lifes Dominion (1993) discusses the value of autonomy. He observes at 222:

It is generally agreed that adult citizens of normal competence have a right to autonomy, that is, a right to make important decisions defining their own lives for themselves. Competent adults are free to make poor investments, provided others do not deceive or withhold information from them, and smokers are allowed to smoke in private, though cigarette advertising must warn them of the dangers of doing so. This autonomy is often at stake in medical contexts. A Jehovahs Witness for example, may refuse blood transfusions necessary to save his life, because transfusions offend his religious convictions. A patient whose life can be saved only if his legs are amputated but who prefers to die soon than to live a life without legs is allowed to refuse the operation. American law generally recognises a patients right to autonomy in circumstances like these.

37

5.8

The right to make ones own choices is an indispensable quality of freedom.

S v Dlamini; S v Dladla and others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) at para 93

5.9

Dworkin recognises that there are occasions when this right is lost, for example, in the case of demented patients who have altogether lost the power to appreciate and engage in reasoning and argument. He goes on to state at 224 :

Recognising an individual right of autonomy makes selfcreation possible. It allows each of us to be responsible for shaping our lives according to our own coherent or incoherent but, in any case, distinctive personality. It allows us to lead our own lives rather than be led along them, so that each of us can be, to the extent a scheme of rights can make this possible, what we have made of ourselves. We allow someone to choose death over radical amputation or a blood transfusion, if that is his informed wish, because we acknowledge his rights to a life structured by his own values. Ronald Dworkin Lifes Dominion (1993)

5.10

There are many ways in which human beings exploit their bodies for commercial gain; boxing, modelling, dancing, manual labour. Liberty to do this is integral to the concept of freedom.

38

5.11

In all of these instances, the underlying activity dancing, boxing or other sport, modelling etc is lawful. Sex work falls into the same category as these examples in that there is nothing unlawful about the activity underlying the commercial enterprise, namely sex between consenting adults.

5.12

This feature distinguishes sex work from commercial activities that are based on activities that are unlawful; for example trade in illegal drugs.

5.13

In Bernstein v Bester 1996 (2) SA 751 (CC) at par 150 O Regan J expressed the view that:

the democratic society contemplated by the Constitution is not one in which freedom would be interpreted as licence, in the sense that any invasion of the capacity of an individual to act is necessarily and inevitably a breach of that persons constitutionally entrenched freedom. Such a conception of freedom fails to recognise that human beings live within a society and are dependent upon one another. The conception of freedom underlying the Constitution must embrace that interdependence without denying the value of individual autonomy.

5.14

One important feature of the act of sex for reward is that it is an offence where the participants are consenting adults. The offence

does not punish any specific harm caused by the perpetrator (the sex

39 worker) to another person. (At most the harm it punishes is self-harm, a matter that we address further below)

5.15

We submit accordingly that section 20(1)(aA) constitutes a violation of section 11(1) in that it denies a person the autonomy to determine for themselves what they can do with their own body.

6.

SECTION 20(1)(aA): CAUSE

DEPRIVATION OF FREEDOM WITHOUT JUST

6.1

Additionally, section 20(1)(aA) constitutes a violation of section 11 in that it constitutes an unjust deprivation of liberty or, in the language of section 12 of the final Constitution, a deprivation of liberty without just cause.

6.2

The Courts jurisprudence developed under the final Constitution relating to the deprivation of physical liberty (s. 12(1)(a)) applies equally to the s. 11 freedom right because as Ackermann J held in De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) at para 16 a comparison of the two sections indicates that the Constitution makers wished to clarify something which had previously been implicit, namely that a persons right to freedom could not be encroached upon arbitrarily or without just cause.

40

See also S v Coetzee 1997 (3) SA 527 (CC) at para 57 (Mahomed DP) paras 72 and 77 (Didcott J); paras 86 and 95 (Kentridge AJ); paras 161-185 (O Regan J) and para 224 (Sachs J) In De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) Ackermann J concluded that section 12(1) of the final Constitution, in entrenching the right to freedom and security of the person entrenched both a substantive right to freedom and a procedural right to freedom. This accorded with aspects of ORegan Js concurring judgment in Bernstein and Others v Bester and Others 1996 (2) SA 751 and in particular at paragraphs 145 to 147.

6.3

6.4

At paragraph 23 of De Langes case, Ackermann J observed:

The substantive and the procedural aspects of the protection of freedom are different, serve different purposes and have to be satisfied conjunctively. The substantive aspect ensures that a deprivation of liberty cannot take place without satisfactory or adequate reasons for doing so. In the first place it may not occur arbitrarily; there must, in other words, be a rational connection between the deprivation and some objectively determinable purpose. If such rational connection does not exist the substantive aspect of the protection of freedom has by that fact alone been denied. But even if such rational connection exists, it is by itself insufficient; the purpose, reason or cause for the deprivation must be a just one.

6.5

In ORegan Js concurring judgment in Bernstein v Bester 1996 (2) SA 751 at par 145 the substantive aspect was described as an aspect

41 of freedom that recognises that some deprivations of freedom will not be constitutional because the grounds upon which freedom has been curtailed are unacceptable.

See too ORegan J in S v Coetzee and Others 1997(3) SA 527 at 159

6.6

In De Langes case, Ackermann stated further at paragraph 25:

sight must not be lost of the fact that, for example, accused persons are entitled to challenge the constitutional validity of a criminal offence with which they are charged on the substantive freedom right ground that such offence does not, for purposes of section 12(1)(a), constitute just cause for the deprivation of their freedom. De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (and see too Mokgoro J, para 130, and O Regan J, para 143) Cf Bernstein v Bester 1996 (2) SA 751 (CC) at par 53-54 and see O Regan Js concurring judgment at para 151

6.7

In terms of section 22 of the Act, the penalty prescribed for a contravention of section 20(1)(aA) is imprisonment for a period not exceeding three years with or without a fine not exceeding R6000.00 in addition to such imprisonment.

42 6.8 In De Lange v Smuts 1998 (3) SA 785 (CC) at par 30 Ackermann J stated:

It is not possible to attempt, in advance, a comprehensive definition of what would constitute a just cause for the deprivation of freedom in all imaginable circumstances. The law in this regard must be developed incrementally and on a case by case basis. Suffice it to say that the concept of just cause must be grounded upon and consonant with the values expressed in s 1 of the 1996 Constitution and gathered from the provisions of the Constitution as a whole. I wish to say no more about just cause than is necessary for the decision of the present case. (emphasis added)

6.9

We submit that in this case the right to freedom in the sense of control over ones body is infringed by the section 20(1)(aA) offence. However, even if this Court finds that this is not the case, we submit that the substantive component of the section 11 freedom right is violated in that the requirements that the deprivation not be arbitrary, and that it meet the criterion of just cause are not met.

6.10

In Bernstein v Bester 1996 (2) SA 751 (CC) at par 151 O Regan J cautioned against an approach that renders all regulatory laws and criminal prohibitions subject to constitutional challenge in terms of s 11(1) and emphasised that:

43 A purposive approach to s 11(1) recognises that it is aimed not at rendering constitutionally suspect all criminal prohibitions or governmental regulation. Our society, as all others in the late twentieth century, clearly requires government regulation in many areas of social life. It requires a criminal justice system based on the prohibition of criminal conduct. The need for effective government which can facilitate the achievement of autonomy and equality is implicit within the constitutional framework. Only when it can be shown that freedom has been limited in a manner hostile to the values of our Constitution will a breach of s 11(1) be established.

6.11

It is clear, in light of the history of sex work, the legislative history described above and on the evidence before the Court, that the criminal proscription does not have the effect of eliminating sex work. The purposes of and reasons for the deprivation of liberty as well as the rationality of the provision must be considered bearing this in mind.

6.12

In support of our contention that the substantive component of the freedom right is violated, we make the following submissions:

6.12.1 To the extent that the section purports to proscribe conduct to prevent moral harm, this is not a constitutionally legitimate purpose. We submit that this is the primary purpose of the

legislation and that the mischief that it was designed to meet was a moral mischief.

44 6.12.2 We submit that the further justifications advanced by the State cannot be put forward as ex post facto justifications for the deprivation of freedom. The purpose of the legislation must be ascertained by reference to the ordinary principles of statutory interpretation.

6.12.3 In any event, we submit that the further justifications or reasons for the section advanced by the State fail to meet the requirement of rationality in that they lack the required relationship between the stated purpose and the means to achieve such purpose, namely the criminal proscription. For practical reasons we deal with this relationship when we deal with the States justification arguments. For present purposes we submit that the remoteness of the connection between the means and ends exposes the measure to lack rationality.

6.12.4 To the extent that the section purports to proscribe conduct to express disapproval of inflicting self-harm, this too is not a constitutionally legitimate purpose having regard to the nature of the harm.

45 6.12.5 The injustice of the cause for deprivation of freedom is revealed further, and exacerbated, by the harms caused to sex workers by the criminal sanction itself.

The Legal Enforcement of Morality

6.13

The legislative history of the section referred to above reveals that an important purpose of section 20(1)(aA) is to proscribe a perceived immorality. In our submission, on a proper construction, this is the primary purpose of the criminal prohibition as revealed by the history of the legislation and a consideration of the mischief that it was designed to remedy.

6.14

In our submission, this purpose is unjust, because the State cannot legitimately purport merely to impose any one moral code concerning sexual morality on its population through the criminal law. To the

extent that criminally proscribing conduct that causes other harm also serves a moral purpose, this purpose may, incidentally, be just. However, moral disapprobation cannot be said to be a just cause in an open and democratic society based on freedom, equality and dignity.

46 6.15 There is a pervasive antipathy to sex work. It is condemned on religious and moral grounds and carries with it a concomitant stigmatisation and ostracism of sex workers. This ostracism and stigmatisation manifests itself in official attitudes towards sex workers.

6.16

The moral disapprobation of sex work featured prominently in the Report of the Ad Hoc Committee of the Presidents Council on the Immorality Act which devoted an entire chapter to the subject entitled "The Role of the State in Respect of Moral Standards". In the course of this chapter, the Committee referred to the famous jurisprudential debate involving, inter alia, Professor HLA Hart and Lord Devlin, to which reference will be made in detail below.

6.17

In concluding that the State did indeed have a role in the enforcement of morality in this sphere, the Committee considered the preambles to the 1961 and 1983 Constitutions and the example of the Publications Act 42 of 1974 and was "satisfied that the State has accepted responsibility to uphold moral values and protect personal dignity". It noted further that the State had "accepted the responsibility of defending Christian values within (the)

community" - at 18 para 3.5. The Committee stated further : "The State is but one of the custodes morum, thereby participating with others in settling the standards of morality that would be generally subscribed to by balanced, reasonable and sensitive members of society. As in other

47 countries where western civilisation predominates, these standards are, by and large, those based on the Christian religion, without, of course, imposing that religion or elevating it to a State religion. By thus relating moral standards to the reasonably well settled precepts of a major religion, rather than to the often changing attitudes of rational argument or public opinion or passing fashionable conduct, society, its authorities and its courts are better able to identify and subscribe to those standards. This tends to promote certainty concerning that which is immoral or permissible."- at page 18 para 3.7

6.18

The institution of marriage figured prominently in the motivation of the Committee: "Since immorality, as reflected in the Act, relates to sexual practices outside wedlock, it is evident that the strengthening of the institution of marriage within which normal sexual relations could, and, in fact, in the main do take place, would be an important means of curbing immorality, and avoiding some of its iniquitous consequences to the offspring of broken unions." - at page 20 para 3.14

6.19

The Committees general approach was stated as follows: "3.22 Having considered the above, and evidence submitted to it, the Committee recommends the following approach: 3.22.1 The State has a function as one of the custodes morum to uphold Christian moral values, as it itself has indicated in the preamble to the Constitution and has undertaken in other legislation. Moreover, moral values do not exist in vacuo but affect the quality of life and welfare of each member of society, and

3.22.2

48 their proper maintenance cannot be ignored by the State and other custodes morum. 3.22.3 It is not the task of the State alone to uphold these values, but also that of the Church and other institutions in the community each within its own sphere of action and in accordance with its peculiar nature. Apart from criminal sanctions, the State, et alia should make use of such other means as may be available to educate, counsel and persuade. On the question of criminal sanctions the Committee agrees, in the first place with the consensus of opinion, that sanctions are imperative in those cases where harm to others should be prevented. This would apply to rape, incest, forcible abduction, etc. By doing so the State also upholds moral values. In keeping with the latter assessment is the Committees acceptance of the proposition of the Wolfenden Committee that sufficient safeguards should be provided against The corruption and exploitation of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced or in a state of special physical, official or economic dependence. 3.22.7 The Committee, having accepted that morality is the business of the State, does not accept that private morality is not the concern of the State, any less than is public morality. Whether or not the criminal law should be used would depend on circumstances.

3.22.4

3.22.5

3.22.6

49 3.22.8 The question as to whether the criminal law should be made to apply is of special significance in respect of those immoral acts which do not strictly fall within the two categories of harmful immoral acts referred to above in paragraphs 3.22.5 and 3.22.6. The manifestations of adultery, fornication, or cohabitation between consenting adults comes to mind. Similarly one thinks of the harmless acts of prostitution and its various phenomena, indecent exposure, nudism and homosexuality that do not affect those that need to be protected. (The term harmless is used to distinguish certain immoral acts from the so-called harmful acts. It is not conceded that on proper analysis such acts are indeed harmless either physically, socially or even psychologically). In establishing practical guidelines in respect of the acts referred to in paragraph 3.22.8, the Committee has considered the following reasoning: 3.22.9.1 Immoral deeds should be visited by criminal sanctions only if such sanctions would enjoy the support of the overwhelming majority of the population. In legislating offences which would largely be honoured in the breach, the State would not enjoy that support and, by so doing, would lessen its own authority and that of the criminal law. In these circumstances civil law sanctions or other dissuasive action should be employed, or, conversely, positive attitudes to morality should be endorsed and strengthened.

3.22.9

3.22.9.2

50 3.22.9.3 Similarly offences which would be difficult of proof in prosecutions, or might lead to anomalous or ridiculous results, should be avoided, in order not to make an ass of the law. The proliferation of crimes committed in private, as immoral acts usually are, would make law enforcement difficult, if not impossible, and would involve police officers in humiliating acts of prying into privacy or serving as traps in a reprehensible manner. The stigmatising of individuals as criminals should be reserved for those matters in respect of which society feels a sense of abhorrence and requires retributive action. The harm of the remedy should not exceed that which it was intended to curb. Privacy should be respected up to the point at which public indignation requires that it should be disregarded.

3.22.9.4

3.22.9.5

3.22.9.6

3.22.9.7

Whether immoral or indecent acts are committed in private or in public, the application of criminal sanctions would depend on the relative measure of abhorrence, shock, disgust, resentment or censure that society may express. On the above reasoning, it is evident that the immoral acts of adultery and fornication should not be visited by the criminal law unless committed with or in respect of socalled vulnerable persons, or in public.

3.22.10

51 3.22.11 Equally on the basis of the foregoing, the Committee, having sensed, from submissions made to it, a feeling of aversion, concern and impatience with the phenomenon of prostitution and its accompanying manifestations, suggests that serious consideration be given to the possibility that the net be cast wider than those offences of the present Act that relate to certain manifestations of prostitution. In this regard it believes that prostitution may be distinguished from the milder forms of sexual immorality referred to in the preceding paragraph, by its indiscriminateness, its reckless disregard of propriety or discreetness, its reckless exploitation of sexual lust for gain, and its persistent nature amounting to a course of conduct. Prostitution in this sense would apply to both males and females and to both heterosexual and homosexual acts. Care should, however, be taken not to extend criminal sanctions relating to prostitution into realms that would be difficult of application or proof or would lead to ridiculous results. Neither should the harm caused by prosecution exceed the harm it was intended to curb. Those homosexual relations between consenting adults which do not fall within the ambit of prostitution as identified in the preceding paragraph need to be distinguished. The Committee, judging inter alia from submissions made to it, has not sensed any appreciable and general measure of tolerance to this sexual manifestation in present day South African society (except, of course, in circles closely connected to homosexuality). Churches and others continue to condemn this manifestation as contrary to nature and therefore unacceptable. This phenomenon would require considerable research and

3.22.12

3.22.13

52 debate before a final conclusion could be reached. 3.22.14 Referring back to paragraph 3.22.10 above, it goes without saying that where immoral sexual acts are committed in public, or the human body is flaunted in public, whether intentionally or recklessly, and such acts would provoke public indignation and disgust, criminal sanctions would not be out of place." (emphasis added)

6.20

As indicated above, the actual legislation which flowed from the report of the Committee went further than the Committees recommendation particularly in relation to the criminalisation of the act of sex for reward. The parliamentary debates stressed the issue of immorality.

6.21

Can attitudes such as these, emanating from religious belief, popular opinion and the like constitute a justification for the continued operation of the challenged laws in the face of the constitutional foundations of freedom, equality and dignity? This Court has rejected any suggestion that it should be diverted from its duty to act as an independent arbiter of the Constitution by making choices on the basis that they will find favour with the public. In S v Makwanyane & Ano 1995 (3) SA 391 (CC) Chaskalson P, was prepared to assume that "the majority of South Africans agree that the death

53 sentence should be imposed in extreme cases of murder". He went on to state: "88 Public opinion may have some relevance to the inquiry, but, in itself, is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive, there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the Courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalized people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected.

89 This Court cannot allow itself to be diverted from its duty to act as an independent arbiter of the Constitution by making choices on the basis that they will find favour with the public. Justice Powells comment in his dissent in Furman v Georgia bears repetition:

... [T]he weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess the amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery - not the core of the judicial process in constitutional cases. The assessment of popular opinion is essentially a

54 legislative, and not a judicial, function.

So too does the comment of Justice Jackson in West Virginia State Board of Education v Barnette: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. Ones right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." (emphasis added)

6.22

Nor, it is submitted, does the existence of prejudice, albeit pervasive, have any role to play in constitutional adjudication. Thus, in Palmore v Sidoti (1984) 466 US 429 the United States Supreme Court had occasion to consider a custody dispute. A divorced white father sought to remove his three year old daughter from the custody of his white former wife when she married a black man. The Supreme Court, while acknowledging the persistence of racial prejudice and acknowledging the risk of an adverse impact on the child, unanimously rejected such considerations as constituting grounds for the custody decision: "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." (at 431)

55

6.23

What is required, in the present case is an analysis of the possible grounds for justifying the criminal sanctions embodied in the impugned laws. This issue arises in two distinct contexts.

6.23.1 First, the issue arises discreetly in the context of the right to liberty and the existence or otherwise of a just cause for the deprivation of liberty. 6.23.2 Second, the structure of the limitations clause contained in section 33 of the Constitution requires, as a threshold criterion, that any limitation must be "reasonable and justifiable in an open and democratic society based on freedom and equality ". We refer back to the remarks

made here when dealing with the States justifications.

6.24

In addressing these issues, it is submitted that the celebrated "HartDevlin" debate on the legal enforcement of morality may be helpful, bearing in mind, however, that the debate took place in the context of a system of parliamentary sovereignty. See Patrick Devlin The Enforcement of Morals (1959) reprinted in Devlin, The Enforcement of Morals (1965) HLA Hart Law, Liberty and Morality (1963)

56 6.25 The debate had its genesis in the publication of the Report of the Committee on Homosexual Offences and Prostitution (Cmmd 247) ("the Wolfenden Report"). The Wolfenden Report contained a central philosophical point of departure articulated in paragraph 61 as follows: "Further, we feel bound to say this. We have outlined the arguments against a change in the law, and we recognise their weight. We believe, however, that they have been met by the counter-arguments we have already advanced. There remains one additional counter-argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality. 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 laws business. To say this is not to condone or encourage private immorality. On the contrary, to emphasise the personal and private nature of moral or immoral conduct is to emphasise the personal and private responsibility of the individual for his own actions, and that is a responsibility which a mature agent can properly be expected to carry for himself without the threat of punishment from the law." (emphasis added)

6.26

Lord Devlin took issue with this philosophical point of departure. His central thesis was that the suppression of vice is as much the laws business as the suppression of subversive activities. He argued that it was no more possible to define a sphere of private morality than it is to define one of private subversive activity. He argued that a recognised morality is as necessary to societys existence as a recognised government. Hence, one who is no menace to others may, by his

57 immoral conduct, threaten one of the great moral principles on which society is based. Since every society has a right to preserve its own existence, it follows that it has the right to use the institution of the criminal law and its sanctions to enforce that right. The test postulated by Lord Devlin was that every moral judgment is a feeling that no rightminded man could act in any other way without admitting that he was doing wrong. This was determined by the man in the jury box. Such a person was not expected to reason about anything and his judgment may be largely a matter of feeling. Lord Devlin purported to lay down a threshold for the interference of the criminal law. He argued that nothing should be punished by the law that does not arouse feelings of intolerance, indignation and disgust.

6.27

This led to the essay in response by Professor Hart. He specifically addresses what appeared to be at the heart of Lord Devlins thesis, namely, the issue of moral populism and democracy. He stated: "It seems fatally easy to believe that loyalty to democratic principles entails acceptance of what may be termed moral populism: The view that the majority have a moral right to dictate how all should live. This is a misunderstanding of democracy which still menaces individual liberty. .... The central mistake is a failure to distinguish the acceptable principle that political power is best entrusted to the majority from the unacceptable claim that what the majority do with that power is beyond criticism and must never be resisted. No one can be a democrat who does not accept the first of these, but no democrat need accept the second. Mill and many others have combined a belief in a democracy as the best - or least harmful - form of rule with a passionate

58 conviction that there are many things which not even a democratic government may do. This combination of attitudes makes good sense, because, though a democrat is committed to the belief that democracy is better than other forms of government, he is not committed to the belief that it is perfect or infallible or never to be resisted. .... Whatever other arguments there may be for the enforcement of morality, no one should think even when popular morality is supported by an overwhelming majority or marked by widespread intolerance, indignation, and disgust that loyalty to democratic principles requires him to admit that its imposition on a minority is justified" HLA Hart Law, Liberty and Morality (1963) at 77 - 81 6.28 For present purposes, it is submitted that the most helpful overview and contribution to this debate is by Professor Dworkin "Liberty and Moralism" in R Dworkin Taking Rights Seriously (1978) at 240 - 258. Dworkin postulates a hypothetical debate in which a person proposes to vote against a man running for a public office of trust because he knows him to be a homosexual and because he believes that homosexuality is profoundly immoral. (It is submitted that the debate is of equal application to the criminalisation of sex work). In the debate that ensues on this issue, certain ground rules of moral reasoning are postulated. If the decision to exercise ones vote against a person because he is a homosexual is to have a rational foundation, certain types of reasoning are excluded. Dworkin poses the question, "what must I do to convince you that my position is a moral position?" He addresses the problem thus:

59 "(a) I must produce some reasons for it. ... My reason need not be a principle or theory at all. It must only point out some aspect or feature of homosexuality which moves me to regard it as immoral: The fact that the Bible forbids it, for example, or that one who practices homosexuality becomes unfit for marriage and parenthood. ... Not every reason I might give will do, however. Some will be excluded by general criteria stipulating sorts of reasons which do not count. We might take note of four of the most important such criteria:

(i) If I tell you that homosexuals are morally inferior because they do not have heterosexual desires, and so are not real men, you would reject that reason as showing one type of prejudice. Prejudices, in general, are postures of judgment that take into account considerations our conventions exclude. In a structured context, like a trial or a contest, the ground rules exclude all but certain considerations, and a prejudice is a basis of judgment which violates these rules. Our conventions stipulate some ground rules of moral judgment which obtain even apart from such special contexts, the most important of which is that a man must not be held morally inferior on the basis of some physical, racial or other characteristic he cannot help having. Thus a man whose moral judgments about Jews, or Negroes, or Southerners, or women or effeminate men are based on his belief that any member of these classes automatically deserves less respect, without regard to anything he himself has done, is said to be prejudiced against that group. (ii) If I base my view about homosexuals on a personal emotional reaction (they make me sick) you would reject that reason as well. We distinguish moral positions from emotional reactions, not because moral positions are supposed to be unemotional or dispassionate - quite the reverse is true - but because the moral position is supposed to justify the emotional reaction, and not vice versa. If a man is unable to produce such reasons, we do not deny the fact of his emotional involvement, which may have important social or political consequences, but we do not take this involvement as demonstrating his moral

60 conviction. Indeed, it is just this sort of position - a severe emotional reaction to a practice or a situation for which one cannot account - that we tend to describe, in lay terms, as a phobia or an obsession. (iii) If I base my position on a proposition of fact homosexual acts are physically debilitating - which is not only false, but is so implausible that it challenges the minimal standards of evidence and argument I generally accept and impose upon others, then you would regard my belief, even though sincere, as a form of rationalisation, and disqualify my reason on that ground. ... (iv) If I can argue for my own position only by citing the beliefs of others (everyone knows homosexuality is a sin) you will conclude that I am parroting and not relying on a moral conviction of my own. With the possible (though complex) exception of a deity, there is no moral authority to which I can appeal and so automatically make my position a moral one. I must have my own reasons, though of course I may have been taught these by other persons."

6.29

Dworkin recognises that even a reason that is not disqualified by virtue of prejudice, mere emotional reaction, rationalisation and parrotting may not be sufficient. The reason produced must be one that is consistently held. Dworkin concludes thus: "Even if it is true that most men think homosexuality an abominable vice and cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice (resting on the assumption that homosexuals are morally inferior creatures because they are effeminate), rationalisation (based on assumptions of fact so unsupported that they challenge the communitys own standards of rationality), and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self-suspicion). It remains possible that the ordinary man could produce no reason for his view, but would simply parrot his neighbour who in turn parrots him, or that he

61 would produce a reason which pre-supposes a general moral position he could not sincerely or consistently claim to hold. If so, the principles of democracy we follow do not call for the enforcement of a consensus, for the belief that prejudices, personal aversions and rationalisations do not justify restricting anothers freedom itself occupies a critical and fundamental position in our popular morality."

6.30

It is submitted that this process of reasoning is helpful in ascertaining the rationalisation and justification for the criminalisation of sex work. The State, in the present matter, seeks to rely on other morally neutral justifications for the law and thereby avoid the moral purpose that underpins the prohibition. The truth, however, is that those who enacted the laws in question were profoundly influenced by moral disapprobation and that the perceived immorality of the act of sex work is the mischief that the prohibition was designed to remedy.

De Vries, Bundle A, Vol 1, p.14, par 11

The States constructed justification for the prohibition

6.31

In its heads of argument, the State contends that there are a range of social ills which are either inherent in prostitution or inevitably associated with it. They contend further :

The two prohibitions under attack in these proceedings are designed to combat these social ills.

62

States submissions: p 6 paras 6 - 7

6.32

The social ills that the prohibitions were allegedly designed to combat are identified as the degradation of women, the violent abuse of prostitutes, trafficking in women, child prostitution, the spread of sexually transmitted diseases, drug abuse, related crimes and public nuisance.

States submissions: pp 7 - 16

6.33

The State further contends that a policy of prohibition is the policy option chosen by the State in addressing the social ills of prostitution.

States submissions: p 17 paras 27 - 27.1

6.34

Although the State contends that there has been no violation of a constitutionally protected right, they contend that in the event of it being held that a right is violated, the violation is justified. They thus

contend that the purpose sought to be achieved by the prohibitions is to combat the social ills inherent in and inevitably associated with prostitution and brothel-keeping.

63 States submissions: p 45 para 89

6.35

We submit that the States approach is fatally flawed because the purpose of the legislation and the impugned provisions have absolutely nothing to do with the social ills that the State now claims the legislation was ostensibly designed to achieve. On the contrary,

we submit that the State has constructed a justification for the prohibitions that bears no resemblance to the true purpose underlying the legislation. That true purpose was to impose a particular sexual

morality on the South African public.

6.36

The legislative purpose of a statute is a historical fact which is to be established with reference to the time of its enactment. It is to be distinguished from the executive purpose which the present day governmental authorities may seek to advance by means of the statute enacted in pursuit of that legislative purpose. The executive purpose may affect the remedy to be granted in a constitutional case because the interests of government and administration are relevant to remedy. However, executive purpose cannot affect the constitutionality of the statute. Constitutionality depends on legislative purpose. The reason for this is two fold:

64 6.36.1 The first reason relates to the nature of the proportionality test under the limitations clause, the context in which legislative purpose is principally relevant. The proportionality test involves a balancing of the legislative purpose against the limitation of a fundamental right and an assessment of how closely the limitation of fundamental rights is tailored to the purpose underlying the statute. Such an enquiry makes no sense in relation to a statute which was, in fact, tailored by the legislature to meet a purpose wholly unrelated to the purpose advanced by the executive in an attempt to defend the constitutionality of the statute.

6.36.2

The second reason concerns the separation of powers between legislature and executive. In our democratic state it is the job of the legislature to enact laws. It is therefore a legislative function not only to identify which purposes are to be promoted by law but also to identify the particular legislative means by which these purposes are to be advanced. taking a The executive cannot usurp this function by pre-constitutional statute designed for one

constitutionally impermissible purpose and seeking to sustain it by pointing to its capacity to promote a constitutionally permissible purpose for which it was not

65 designed. If the constitutionally permissible purpose is to be advanced by legislation it is for the constitutionally ordained legislature to choose to advance this purpose and to design the particular statute by which it will be advanced.

6.37

There are clearly established methods for determining legislative purpose. In S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC) Chaskalson P stated at para 52 that: The purpose of particular legislative provisions has ordinarily to be established from their context, which would include the language of the statute and its background.

Paragraph 52 must be read with fn 39 in para 44 which identified it as the part of the judgment dealing with how, if it be disputed, the legislative purpose [of a statute] is to be established.

6.38

The Lawrence approach to legislative purpose has been followed consistently by this Court. Thus in Western Cape Provincial

Government and Others: In re DVB Behuising (Pty) Ltd v North West Provincial Government and Ano 2001 (1) SA 500 (CC) Ngcobo J stated the following at para 36 The inquiry should focus beyond the direct legal effect of the proclamation and be directed at the purpose for which the proclamation was enacted. In this inquiry the preamble to the proclamation and its legislative history are relevant considerations, as they serve to illuminate its subject-matter.

66 They place the proclamation in context, provide an explanation for its provisions and articulate the policy behind them. See also Ex parte Speaker of the KwaZulu-Natal Provincial Legislature: In re KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of 1995, 1996 (4) SA 653 (CC) at paras 16 to 17

6.39

The Supreme Court of Canada adopts a similar approach to the identification of legislative purpose, both in fundamental rights cases and in provincial legislative competence cases. R v Big M Drug Mart Ltd (1985) 13 CRR 64 R v Morgentaler [1993] 3 SCR 463

See

6.40

It is clear on the approach adopted by this Court that the legislative purpose underpinning the Sexual Offences Act was to impose a particular sexual morality on the South African public.

6.41

The short title of the Act was, until 1988, the Immorality Act. The change in the title apparently was prompted not by a shift in purpose of the Act, but by a desire to escape the pejorative political and emotive overtones generated by its historic association with the proscription of interracial sex.

67

Ad Hoc Committee Report p 26 para 4.5

6.42

In its time, apart from sex work, the Act has inter alia prohibited

6.42.1

interracial sex Section 16

6.42.2

male gay flirting and sex Section 20A

6.42.3

the manufacture or sale of articles designed for use in unnatural sexual acts, and Section 18A

6.42.4

various acts associated with immoral purposes and unlawful carnal intercourse. Sections 9, 10, 11, 12A, 13 and 19

6.43

The Act treats extra-marital sex as unlawful carnal intercourse and constructs many of its prohibitions around this moralistic concept.

Sections 1, 9, 10, 11, 12, 12A, 13, 14, 15, 18, 20(aA)

6.44

In its original form, the Act treated a womans sexuality as the property and responsibility of her husband or her parents.

68 Section 9(1)(b) prior to its amendment by Act 2 of 1988

6.45

It still regards extra marital sex as defiling a woman. Sections 9, 11, 17, 18

6.46

The introduction of the prohibition of sex work in section 20 (1)(aA) of the Act was preceded by the Report of the Ad Hoc Committee of the Presidents Council. As indicated above, this Report devoted an

entire chapter (Chapter 3) to The Role of the State in respect of Moral Standards, extracts from which have been reproduced above.

6.47

In Lawrence 1997(4) SA 1176 (CC) at para 88, Chaskalson P considered the Canadian case of R v Big M Drug Mart Ltd and stated the following: 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 fee 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. Certain exemptions were made in respect of 'work of necessity or mercy' and the railways were allowed to operate. There was also a provision that persons could be exempted from the provisions of some of the prohibited activities by 'provincial legislation or municipal charter'. The Canadian Courts had previously held that the object of the Act was to compel the observance of the Christian sabbath.

69 This led Dickson CJC to say: 'A finding that the Lord's Day Act has a secular purpose is, on the authorities, simply not possible. Its religious purpose, in compelling sabbatical observance, has been long-established and consistently maintained by the Courts of this country.'

6.48

An equivalent passage could be written of the provisions of the Act under attack in the present case: the original name of the Act proclaimed its purpose, as did its provisions. A finding that the Act has a non-moral purpose is simply not possible. Its morally prescriptive purpose has at all times been clear.

6.49

For the purposes of the limitations enquiry, the morally prescriptive purpose of the Act can carry no weight. In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) Ackermann J stated the following at paras 37 and 38: 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. There is accordingly nothing, in the proportionality enquiry, to weigh against the extent of the limitation and its harmful impact on gays. It would therefore seem that there is no justification for the limitation. [38] As far as religious views and influences are concerned I would repeat what was stated in S v H: 'There is still a substantial body of theological thought which holds that the basic purpose of the sexual relationship is procreation and for that reason also proscribes contraception. There is an equally strong body of theological thought that no longer holds to this view.

70 Societal attitudes to contraception and marriages which are deliberately childless are also changing. These changing attitudes must inevitably cause a change in attitudes to homosexuality.' It would not be judicially proper to go further than that in the absence of properly admitted expert evidence. I think it necessary to point out, in the context of the present case, that apart from freedom of expression, freedom of conscience, religion, thought, belief and opinion are also constitutionally protected values under the 1996 Constitution. The issues in this case touch on deep convictions and evoke strong emotions. It must not be thought that the view which holds that sexual expression should be limited to marriage between men and women with procreation as its dominant or sole purpose, is held by crude bigots only. On the contrary, it is also sincerely held, for considered and nuanced religious and other reasons, by persons who would not wish to have the physical expression of sexual orientation differing from their own proscribed by the law. It is nevertheless equally important to point out that such views, however honestly and sincerely held, cannot influence what the Constitution dictates in regard to discrimination on the grounds of sexual orientation.

6.50

By parity of reasoning, the moral prescriptions of the relevant provisions of the Sexual Offences Act are constitutionally worthless. Any limitations of fundamental rights effected by the challenged provisions will accordingly fail to stand constitutional scrutiny.

6.51

The sexually prescriptive purpose of the Act and its self conscious location in religious moralism have been set out above. The purpose of the Act violates several fundamental rights.

71 6.51.1 In the first instance, it obviously violates the right to privacy. In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) Ackermann J stated the following at para 33: 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 (emphasis added).

In his concurring judgment, Sachs J stated at para 117: The emerging jurisprudence of this Court is fully consistent with such an affirmative approach. In Bernstein and Others v Bester and Others NNO Ackermann J pointed out that the scope of privacy had been closely related to the concept of identity and that 'rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one's autonomous identity. . . . In the context of privacy this would mean that it is . . . 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.' Viewed this way autonomy must mean far more than the right to occupy an envelope of space in which a socially detached individual can act freely from interference by the State. What is crucial is the nature of the activity, not its site.

72 While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the State to choose or to arrange the choice of partner, but for the partners to choose themselves (emphasis added).

6.51.2 The Acts prescription of a particular form of sexual morality and its proscription of sexual acts inconsistent with this morality limit the right to privacy because that right protects the intimate sphere of sexual activity and expression from interference by the State.

6.51.3 Moreover, the particular form of sexual morality propagated by the Act is inconsistent with section 9(3) of the Constitution, because, as set out above, it is premised on a notion of female sexuality that is demeaning to women. In the scheme of the Act, a womans

sexuality is not hers to control, and she is defiled when she has sex without being married. In violation of section 9(3), the Act thus propagates a notion of womenhood that is defined in relation to sexual virtue and sexual taint and that is subversive of gender equality in the sphere of sexual relations. Furthermore The Acts core concept of unlawful sexual intercourse manifestly

discriminates on the prohibited ground of marital status.

73 6.51.4 Finally, the religious moralism at the heart of the Act is inconsistent with section 15 of the Constitution. Although the moral values

espoused by the Act are consistent with a range of religions, it is clear from the background to the Act that these values are propagated in the name of a particular brand of Christian moral philosophy. This elevation of a particular religious philosophy to legislated State moral policy violates the religious and conscience rights of adherents of other religions and of atheists. It is also at odds with the constitutionally ordained culture of religious tolerance and cultural pluralism. See for example Amod v Multilateral Motor Vehicle Accidents Fund (Commissioner for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) at paras 20 to 23

Protecting against self-harm

6.52

The State has introduced evidence to the effect that sex work is profoundly harmful to the women in a mental as well as a physical sense. Reliance is placed on evidence from Dr Melissa Farley and

Dr Sven-Axle Monsoon. In particular, there is evidence before the Court of the existence of high levels of post-traumatic stress disorder amongst sex workers similar to rates among battered women seeking shelter, rape victims seeking treatment and survivors of state

74 sponsored torture. There is also evidence of high levels of physical assault, rape, sexual assault and harassment in prostitution.

Van Eeden 2, Bundle A, Volume 1, p 39, paras 32-37.

6.53

As a general principle in a society based on freedom (subject to very few exceptions), a criminal sanction cannot legitimately be introduced for the purpose of punishing self-harm. Generally, where the punishment is aimed at protecting against harm, it is harm to others that must be envisaged. The fact, for example, that the voluntary

taking of ones own life, or attempt to do so, is not criminally punishable under South African law, is consonant with this principle.

S v Gordon 1962(4) SA 727 (N) Minister van Justisie, Ex parte: In re S v Grotjohn 1970 (2) SA 355 (A) Burchell and Hunt South African Criminal Law and Procedure vol 1 General Principles, 1983, p 3-4

6.54

In any event, while it is common cause that there are women who suffer emotional and physical harm through their involvement in sex work, the States assertion that sex work is profoundly harmful to those involved needs to be understood in context.

75

6.55

We accept, and it is common cause, that sex workers are vulnerable to violence. It is also common cause that some sex workers suffer

physically, emotionally and psychologically. It is also common cause that this may be manifested through the use of drugs, for example as a coping mechanism. However, we submit that the violence that sex workers suffer is aggravated by the criminal sanction. This is because sex workers are unable to access health, welfare, social and policing services. They are placed in the invidious position of risking

prosecution when doing so. Moreover sex workers suffer the stigma of a criminal sanction and their ability to leave the profession is rendered more difficult by the criminality associated with their history as a sex worker.

Jacobs, Bundle B, p 18-19. Leggett, Bundle F, 1809-11.

6.56

Even on the States own evidence, not all sex workers suffer the harms they say are associated with sex work. Some sex workers cope well with their work, some do not resort to drugs, some do not suffer any harm. It cannot truly be said to be an inherently or inevitably harmful activity.

76 The harm caused to sex workers by the criminal sanction

6.57

Our submission is that the harm that a criminal sanction causes to the people subject to its reach is relevant to the determination of whether a deprivation of liberty is for just cause. The evidence introduced by the amicus shows that the criminal sanction itself causes harm and adds to the vulnerability of sex workers as a group. When weighed against any public interest the State says is served by the criminal prohibition, we submit that the criminal prohibition manifestly fails to meet the criterion of just cause. We deal here with the harm caused by

criminalisation itself in the following categories:

A B C D E F

Vulnerability to violence Unsafe, unfair and poor working conditions Stigmatization of sex workers Access to health, social, police, legal and financial services Adverse impact on safe sex practices Ability to find other employment

Vulnerability to violence

6.58

Criminalisation increases a sex workers vulnerability to violence and exploitation by, inter alia, police, clients, community members and

77 domestic partners. This is in part because the criminal nature of sex work, and associated stigma, makes it difficult for sex workers to lay charges of assault or rape without incriminating themselves or exposing themselves to being charged under the Act. Attitudes such as sex workers cannot be raped prevail among some police officers. Because of the criminal sanctions attaching to brothels, sex workers are often denied the added security of a brothel to do their work. Vulnerability to dumping and rape is increased, for example, when a client drives a sex worker a distance from where she was picked up. Harassment and verbal abuse from community members is a regular feature of life. The State dismisses suggestions of pervasive mistreatment by police of sex workers saying that any mistreatment is from rogue elements.

Gardner, Bundle B, p.32 38, paras 11 to 21. Jordan, Record of Appeal, Vol 1; p. 73 77; paras 51, 54, 55 - 57, 6 - 63. Jacobs, Record of Appeal; Vol III, p 105, para 14; p 109, para 28. Van Wijk, Record of Appeal, Vol II, p 126, para 16. Delany, Bundle B, p 87 89, para 14. De Vries, Bundle C, p 42, para 101.

78 6.59 It is common cause that street-based sex work is less safe than the indoor industry. This is at times because streetbased sex workers work in dark, isolated places in order to avoid police detection and are therefore vulnerable to attacks and dumping.

Delany, Bundle B, p 80 81, para 8. De Vries, Bundle C, p 38, para 90.

6.60

Though it is common cause that sex workers are exposed and vulnerable to violence, rape and assault, particularly in the hands of clients, the State says this has nothing to do with the criminal sanction and all to do with the nature of sex work. For example the State says it is a regrettable fact of life that a women alone and naked with a stranger in a sexually charged environment might be raped. But we submit that the vulnerability that sex workers have is at least exacerbated by the criminal sanction because of the difficulty of laying a criminal charge. Though the State disputes these contentions, they have failed to controvert the evidence that sex workers are reluctant to come forward for fear of self-incrimination. By revealing their identities and coming forward to lay charges, sex workers both incriminate themselves and expose themselves to prosecution. This we submit is a matter of common sense and experience and would scarcely require proof.

79

Gardner, Bundle B p 33 37, paras 14 17. De Vries, Bundle C, p 16 18, para 37 40; p 40, para 95.

6.61

The State also disputes the allegations that sex workers are subjected to violence and abuse at the hands of the police. The State

vehemently denies the involvement of the SAPS in any practice of abuse of sex workers but admit that there may be rogue elements who are guilty of improper conduct who they say will be properly dealt with if reported. But the State cannot, and do not controvert the evidence regarding the receipt by SWEAT of numerous complaints from sex workers in the Claremont area, including of rape and assault involving 3 police reservists. The State also accepts the statistical evidence that 12 of the 25 sex workers individually interviewed in the Brener and Pauw SWEAT study in 1996, had experienced rape or other acts of violence by the police.

Gardner, Bundle B, p 32 35, paras 13 15. De Vries, Bundle C, p 16 17, paras 36 38.

6.62

It is a matter of common sense that in areas where difficulties are encountered with the police, a sex worker will have little recourse to the protections of the law. In these circumstances the people who are

80 meant to be providing sex workers with the protection of the law are themselves exploiting and enhancing the vulnerability of sex workers. Though legal organisations such as the Womens Legal Centre are able to assist sex workers in obtaining legal redress, these services are in practice available only to few.

Unsafe, unfair and poor working conditions

6.63

Because sex work is criminalized, sex workers have no recourse to legal protection regarding working conditions because the illegal nature of the work precludes them from the operation of protective laws. The consequence is that working conditions are often unsafe, unhygienic and any working relationship potentially exploitative. The fact that sex workers may work in these conditions is common cause. The state seems to describe these aspects as inherent to prostitution and its evidence paints a picture of always exploitative pimps and brothel keepers and unsanitary locations. The amicus seeks to put this kind of exploitation in perspective in two ways. Firstly, not all pimps and

managers exploit sex workers and not all brothels and sex work locations are unclean and unsafe. Secondly, and importantly,

however, if one looks more closely at the problems it is clear that the denial of the protection of the law is often a consequence of the criminal sanction.

81

6.64

Common complaints received by SWEAT relate to long working hours (for example 21 hour shifts) , unfair commissions (for example between 40 60%), unfair deductions and fines, working under duress and inability to leave the premises. High fines may be imposed for

example for breaking a house rule such as developing a personal relationship with a client. Threats can vary from threats of violence to threats to tell a sex workers family what she does for a living.

Gardner, Bundle B, p 39 40, para 27. See too Jordan, Record of Appeal, Vol 1, p. 79, para 68; p 82, para 76 . C Jacobs, Record of Appeal, Vol II, p 107, para 19.

6.65

There is evidence before this Court that there are a number of brothels that ensure fair and safe working conditions as well as brothel owners who are directly concerned with sex workers interests. There is also evidence of attempts within the Human Sciences Research Council to take steps to improve services for sex workers, for example in relation to the children of prostitutes, which attempts appear to have been thwarted in part because of lack of co-operation by authorities.

Schurink, Record of Appeal, Vol II, p 135, para 17. Van Wijk, Record of Appeal, Vol II, p 123, para 5.

82 Jordan, Record of Appeal, Vol I, p 82 83, paras 78 80. Oosthuizen, Record of Appeal, Vol II, p 119, para 17.

6.66

Because of the illegal nature of the work, sex workers are not eligible for unemployment insurance and related employment benefits, and have no legal way of requiring improvements in working conditions and little power of negotiation with an employer. There is little recourse for a sex worker who believes she has been unfairly dismissed nor are there ways to enforce dishonoured contracts between sex workers and clients.

Gardner, Bundle B, p 40, para 28.

6.67

Some street-based sex-workers work with pimps.

The issue of

pimping evokes heated responses with sex workers being portrayed as helpless victims and pimps as exploitative. While there are

exploitative and abusive pimps, this is not uniformly so. Pimps also provide genuine protective services to sex workers, looking after money earned, keeping a record of clients number plates and negotiating safe locations known to the pimp. In Cape Town and

Johannesburg there is some evidence that black sex workers act as pimps for each other. The relationship between pimp and sex worker thus may be contractual or of an employment nature.

83

Jacobs, Bundle B, p 10 11, para 5.1. Delaney, Bundle B, p 82, para 9.1.

6.68

To the extent that pimps are exploitative and abusive, the criminal nature of the sex work transaction renders this relationship immune from legal scrutiny. The criminal sanction, in this way, contributes to rather than reduces the problem.

6.69

Linked to this is the problem that because of the criminal status of sex work, sex workers are inhibited from mobilizing within the industry through unions or workers collectives.

Gardner, Bundle B, p 50 51, paras 54 57.

Stigmatization of sex workers

6.70

The stigma that is associated with sex work attaches mostly because various religious and other groups believe that sex work is immoral. But, by labelling sex workers as criminal, this stigma is exacerbated and reinforced. There are physical, emotional and psychological

consequences associated with this stigma and almost no support to assist in coping with these negative aspects of their work. This

84 includes family and friends support in that many sex workers are unable to tell their families and friends of the work that they do. This in turn makes it more difficult to report incidences of violence and abuse to authorities. It also leads to isolation, feelings of social exclusion

and decrease in self-esteem.

Delaney, Bundle B, p 76, para 5.7. De Vries, Bundle C, p 34 35, para 79.2.

6.71

Sex workers will use different mechanisms to cope with the stigmatization. Some internalise it, splitting the sex work activities from other parts of their lives to maintain some form of normality. Some make use of drugs. Few have access to support structures and mental health services.

Jacobs, Bundle B, p 19, para 10.4 10.5.

6.72

The stigma attached to the criminality around sex work also means that non-sex workers feel free to express their moral disapproval towards sex workers through, for example, calling them unpleasant names, throwing things at them and physically assaulting them. Taking criminal action in cases is difficult because this exposes the sex worker to self-incrimination.

85

Gardner, Bundle B, p 42 44, paras 36 41. Jacobs, Bundle B, p 18 19, para 10.

Access to health, social, police and legal and financial services

6.73

Because of the criminal nature of sex work and the stigma that is consequently attached, a sex worker does not have equal or effective access to health, social, police and legal services.

6.74

In relation to health services, this is partly because of a fear of being discriminated against and partly because of a fear of the

consequences of disclosing their identity. SWEATs evidence is that this can include, for example, failure on the part of health clinic staff to treat STD status confidentially, negative attitudes, refusal to dispense sufficient condoms and unwarranted public accusations of being vectors of disease. It also includes threats by health service

providers to inform Social Services of their work and an associated threat that their children will be removed from their care. The fear associated with being treated in this way if identities are disclosed reduces a sex workers access to proper health services. This is

particularly important in relation to ensuring HIV testing, supply of

86 condoms and STD treatment. The State objects to this evidence only on the basis that it is hearsay and an improper method of placing expert evidence before the Court.

Gardner, Bundle B, p 44 45, para 42. Delaney, Bundle B, p 74, para 5, 5.1, 5.2. De Vries, Bundle C, p 31 32, para 79.

6.75

The RHRUs evidence is that sex workers mistrust health workers to protect their confidentiality also in relation to the rest of their communities and fear the consequent response by their community and family. This also reduces access to health services. The State objects to this evidence only on the basis of hearsay.

Delany, Bundle B, p 75, para 5.5. De Vries, Bundle C, p 74, para 79.

6.76

The RHRUs evidence also shows that sex workers respond to these fears and distrust either by not seeking help at all for sexual and reproductive health complaints or to seek help in the private sector, which results in exposure to charlatans and quacks selling medication, even antibiotics, on the streets. The State objects to this evidence only as hearsay.

87 Delany, Bundle B, p 74 75, para 5.3 5.4. De Vries, Bundle C, p 31 32, para 79.

6.77

The criminality associated with sex work has adverse consequences for accessing social services. In particular, because of a fear that

children will be removed from their care if their identities are disclosed, access to disability and child support grants is inhibited and sex workers fall outside the definition of employee for the purposes of unemployment benefit legislation. Even though sex workers have

specific needs, for example in relation to their children, the criminalized nature of the work means services are not specifically provided to this group. Moreover those initiatives that do take place are thwarted.

Gardner, Bundle B, p 45 46, para 43. Delaney, Bundle B, p 75 76, para 5.6. Schurink, Record of Appeal, Vol II, p 135, para 17. Van Wijk, Record of Appeal, Vol II, p 123, para 5. Jordan, Record of Appeal, Vol I, p 82 83, paras 78 80. Oosthuizen, Record of Appeal, Vol II, p 119, para 17.

6.78

The health and welfare barriers described above are likely to be intensified for younger sex workers.

88 Delaney, Bundle B, p 73, para 4.1. De Vries, Bundle C, p 31, para 77.

6.79

The criminality associated with sex work makes access by this group to police services a struggle. Problems encountered include the

problem that allegations of rape by a sex worker are often not taken seriously, the sex worker receives bad treatment at the hands of the police themselves or the sex worker simply fears approaching the police because of fear of prosecution. Similarly, it is difficult for a sex worker to lodge a complaint with the Independent Complaints Directorate.

Gardner, Bundle B, p 46, para 44.

6.80

Legal and financial services are also hard to access because of the criminal nature of the work. Fear of discrimination discourages sex workers from seeking assistance from court officers. Financial

services (eg opening bank accounts, being granted credit or taking life insurance) are all difficult to access because of the need to state occupation on application and prove income. Because of the illegal nature of the work, sex workers are refused services and do not have records sufficient to prove income. Sex workers access to insurance

89 is similarly limited where disclosure of their identity may lead to refusal of access and non-disclosure refusal to pay out.

Gardner, Bundle B, p 47, paras 45 and 46.

Impact on safe sex practices

6.81

Because of the criminal status of sex work and the consequent stigmatization and marginalisation, access to health education and services is limited with a direct impact on safe sex behaviour.

6.82

Contrary to the evidence of the State, SWEATs experience is that the criminal status of sex work frustrates the ability of sex workers to require clients to have protected sex, because of financial burdens.

Gardner, Bundle B, p 48 49, para 48.

6.83

This is dealt with further below in dealing with the States arguments on justification.

Ability to find other employment

90 6.84 Many sex workers, and especially street sex workers, have regular interaction with the criminal justice system resulting in arrests, payment of admission of guilt fines or trial. Because of the stigma attached to sex work, and because many sex workers have criminal records as a result of having been sex workers it becomes difficult for sex workers to leave the industry when they want to. Prospective employers are loathe to hire ex- sex workers and sometimes ex- sex workers have been dismissed when their previous employment comes to light.

Gardner, Bundle B, p 49 50, paras 49 53.

6.85

For these reasons we submit that the section 11 right not to be deprived of ones liberty without just cause is violated by section 20(1)(aA).

7. THE RIGHT TO DIGNITY

7.1

Section 10 of the interim Constitution asserts that Every person shall have the right to respect for and protection of his or her dignity.

91 7.2 The final Constitution adds that dignity is inherent thereby asserting that respect for human dignity, and all that flows from it, is an attribute of life itself, and not a privilege granted by the State.

Chaskalson P Human Dignity as Foundational Value of our Constitutional Order SAJHR (2000) 16 at 196

7.3

The recognition of the right to dignity means that the intrinsic worth of human beings is acknowledged: all human beings are entitled to be treated as worthy of respect and concern. The value and worth of all individuals as members of society must be acknowledged.

S v Makwanyane 1995(3) SA 391 (CC) at para 328 Dawood v Minister of Home Affairs 2000(3) SA 936 (CC) at para 39 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999(1) SA 6 (CC) at para 29

7.4

The parameters of the protection of human dignity are ever evolving. Dignity is an elusive concept, difficult to capture in precise terms.

Chaskalson P Human Dignity as Foundational Value of our Constitutional Order SAJHR (2000) 16 at 205

92 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999(1) SA 6 (CC) at para 29

7.5

In Ackermann Js 2000 Bram Fischer speech, he emphasised what is definitional to being human as the ability to understand or at least define oneself through ones own powers and to act freely as a moral agent pursuant to such understanding of self-definition.

L Ackermann Equality and the South African Constitution: The Role of Dignity Heidelberg Journal of International Law (2000) 60: Nr 3-4, 537

7.6

Protecting dignity requires that respect be accorded to the power of human beings to act rationally and exercise choice and agency. High priority must be accorded to individual choices in matters such as beliefs, way of life, attitudes and the conduct of public affairs and proper regard should be had to the responsibility of individuals and their capacities to make choices.

O Schachter Human Dignity as a Normative Concept (1983) 77 American Journal of International Law, 848-54, esp 849

93 7.7 Respect for dignity also requires that respect be accorded to the inherent and equal moral status of human beings.

See Meyerson, Rights Limited (1997) 14

7.8

This respect must be accorded both to individuals (the individual who chooses to engage in sex work) as well as to groups (sex-workers who constitute a group in society, generally stigmatised and vulnerable). As Sachs J pointed out in the Sodomy case, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times.

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999(1) SA 6 (CC) at paras 117 (and 78)

7.9

It is our submission that section 20(1)(aA) is a violation of dignity in two respects.

7.9.1

Firstly it fails to respect the moral choice of sex workers, both individually and as a group, to earn their living by using

94 their own bodies. It also fails to respect their moral choice to perform sexual activities for reward.

7.9.2

Secondly, and having regard to the context in which much sex work takes place, it has the effect of denying this choice where it is often made by a vulnerable group in order to ensure a livelihood and that of their families. Women

become sex workers primarily because of economic necessity.

Schurink, Bundle F, Vol 1, Annexure J5, p 1715.

7.10

The context in which the decision is made to enter the sex work and the reasons for becoming a sex worker are important in this regard.

7.11

The evidence reveals that sex workers generally enter the industry for economic reasons either because there are few jobs available to women or because there are few jobs in which women can earn as much money as in the sex work industry. Many women who enter the industry have limited choices and sell sex in order to feed and provide for their families.

Jacobs, Record of Appeal, Vol II, p 103, para 7.

95 Van Wijk, Record of Appeal, Vol II, p 125 126, paras 12 and 14. Jacobs, Bundle B, p 5, para 3.2, p 16 17, para 8. Delany, Bundle B, p 83 84, para 11.1. De Vries, Bundle C, p 40, para 93.2 93.3.

7.12

The RHRUs Women at Risk survey revealed that 90.5% of respondents were single and never married but that 65% had children. Their experience is that many women take up the work as a consequence of poverty induced, for example, by the lack of male support, single parenthood, by divorce, after rape or infertility. RHRU also urges that sex work should be understood in light of high levels of female unemployment, limited education of women and the

consequent lack of skills. The evidence before the Court reveals that very few sex workers have skills that would permit ready access to the employment market. Womens choices must also be understood in the context of a history of male migrant labour and urbanisation which took men to cities and caused a break-up of families.

Delany, Bundle B, p 71 72, para 3.3 to 3.6. De Vries, Bundle C, p 33, para 75.

7.13

In our submission, the gender inequality that surrounds the decision to become a sex worker should be taken into account. Although women

96 have fewer economic choices, they do have agency within these constrained choices and deserve to have their choices respected.

7.14

Even if choice is constrained, there remains room for agency. It is sometimes argued that freedom and equality are in tension with each other and that equality may demand the restraint of liberty to make room for equality and economic needs. Here, there is an important way in which the values co-exist; freedom needs to be enhanced in order to ensure equality and to ensure that economic needs can be met.

7.15

The Constitution asserts that everyone has inherent dignity, which requires that everyone is treated with respect. This requires that the

choices that people make about their own bodies, even if morally repugnant to others, need to be respected. This is especially so when the choice is made at times out of need to ensure ones own livelihood and that of ones family.

7.16

In giving meaning to the rights in the Constitution, an interpretation must be advanced that is informed inter alia by the value of dignity and freedom. The remarks above, in our submission, thus must also

inform the content given to the other rights relied upon and in particular the right to free economic activity dealt with below. In this sense, the

97 other rights relied upon can be seen as more specific instances of dignity and freedom.

8.

THE RIGHT TO PRIVACY

8.1

Section 13 of the interim Constitution provides that:

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.

8.2

Section 14 of the final Constitution provides that: Everyone has the right to privacy, which includes the right not to have (a) their person or home searched (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.

8.3

The right to privacy has been described by Justice Louis Brandeis as the right (as against the government) to be let alone the most comprehensive of rights and the right most valued by civilised men.

Cited in Mistry v Interim Medical and Dental Council of South Africa 1998(4) SA 1127 at par 47

98 See too Case and Curtis v Minister of Safety and Security and Others 1996 (3) 617 SA (CC) at par 104 (per Madala J)

8.4

A persons sexuality is a deeply personal and private part of life.

In the

Sodomy case it was described as part of the experience of being human. It involves decisions about ones body and how one conducts sexual relationships. It is a sphere of activity in respect of which one is at least generally entitled to be left alone. It represents a sphere of personal

autonomy in which the law may not normally interfere.

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999(1) SA 6 (CC)

8.5

At paragraph 32 of that case, Ackermann J stated the following:

Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationship 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. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999(1) SA 6 (CC)

99 8.6 Sachs J, in his concurring judgment in the Sodomy case, at para 118, emphasised that privacy does not give a blanket permission to do what one likes as long as it is in private and noted that : (t)here are very few democratic societies, if any, which do not penalize persons for engaging in inter-generational, intrafamilial, and cross-species sex, whether in public or in private. Similarly, in democratic societies sex involving violence, deception, voyeurism, intrusion or harassment is punishable (if not always punished), or else actionable, wherever it takes place (there is controversy about prostitution and sadomasochistic and dangerous fetishistic sex). The privacy interest is overcome because of the perceived harm. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999(1) SA 6 (CC) In Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) at paragraph 67, this Court held 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 . . . . 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.

8.7

8.8

We recognise that there are aspects of sex work that take place in the public realm, and that to the extent that other peoples legitimate interest and rights are unreasonably and adversely affected thereby, it may in certain circumstances be constitutionally permissible for the State to limit the privacy right. In this realm the privacy right may be

100 attenuated as the more public the undertaking and the more closely regulated, the more attenuated would the right to privacy be and the less intense any possible invasion. Even if attenuated however the right nevertheless remains in place. It must however be balanced against the harm that is to be mitigated.

Mistry v Interim Medical and Dental Council of South Africa 1998(4) SA 1127 (CC) at para 27 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors 2000 (10) BCLR 1079 (CC) at para 16

8.9

Section 20(1)(aA) prohibits sex work absolutely, whether it takes place in a wholly private manner or whether it takes place in a public domain. In our submission the sex worker has an objectively reasonable and legitimate expectation to the protection of her privacy that is violated by this prohibition.

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) at para 75

8.10

For this reason, it is our submission that the section violates the right to privacy.

101 9. SECTION 20(1)(aA) : THE RIGHT TO CHOOSE ONES TRADE, OCCUPATION OR PROFESSION

9.1

Section 26 of the interim Constitution provides that:

(1) Every person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory. (3) 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.

9.2

Two aspects of section 22 of the final Constitution warrant specific mention. Firstly, it emphasises citizens right to choose a trade, Secondly, it permits the practice of Subject to

occupation or profession freely.

trades, occupations or professions to be regulated by law.

our submissions below about inherently unlawful activities, we submit that regulation must be distinguished from prohibition. Unless it is otherwise

constitutionally permissible or required, section 22 does not give the State a free hand to prohibit the practice of trades, occupations or professions. The power to regulate does not normally include the power to ban entirely or substantially.

S v Perumal 1977(1) SA 527 (N) at 527F 528A

102 9.3 The interpretation to be given to section 26 of the interim Constitution, must be informed by prescripts of section 35(1) and in particular the injunction that applies when interpreting the Bill of Rights for courts to promote the values that underlie an open and democratic society based on freedom and equality.

9.4

In S v Lawrence 1997 (4) SA 1176 (CC), this Court left it open whether implicit in section 26(1), properly interpreted, is the limitation that the economic activity must be in accordance with law. On one interpretation of the section, Chaskalson P, at paragraph 34, explained that: Nobody can claim that section 26 gives him or her the right to deal in stolen property or in harmful drugs or to break the law in any other way. Nor can anyone claim that the right entitles him or her to ignore laws having a rational basis which deal with town-planning, zoning, licensing, and other regulation of business, trades or professions. These are the constraints of the economic system applicable to all persons and those who wish to engage in it must do so subject to such constraints.

9.5

The alternative approach, the one less restrictive of free economic activity, and the one assumed in favour of the appellants in Lawrence (at para 37), is that all constraints upon economic activity and the earning of a livelihood which fall outside the purview of section 26(2) will be in breach of section 26.

See too Sound Prop 1239 CC t/a 777 Casino v Minister of Safety and Security 1996 (4) SA 1086 ( C ) at 1091

103

9.6

It is our submission that the latter interpretation should prevail, but we accept that central to the proposition that the economic activity right has been infringed is the proposition that the activity sought to be protected must not be inherently unlawful. By this we accept that the activity must not be clearly outlawed by the Constitution. For example we accept that the right cannot be claimed to permit slavery or trafficking in women or children, as these activities are manifestly disallowed by the Constitution.

9.7

There is nothing inherently unlawful about sex work. Constitution can be said to require it being outlawed.

Nothing in the

9.8

The scope of the section 26 right is determined by reading sections 26(1) and 26(2) together. The limitations analysis contained in section 33 is

thereafter applied if the measure limits the right.

S v Lawrence 1997 (4) SA 1176 (CC) at paras 29 - 30

9.9

In Lawrence, at paragraphs 40 41, design was given its dictionary meaning; namely, (t)o purpose or intend (a thing) to be (something); to mean (a thing) to serve some purpose . or do

However, this

does not mean that there needs to be no correlation between the design and the end sought to be achieved. The requirement that measures be

104 justifiable in an open and democratic society based on freedom and equality means that there must be a rational connection between means and ends. Otherwise the measure is arbitrary and arbitrariness is

incompatible with such a society.

S v Lawrence 1997 (4) SA 1176 (CC) at para 42

9.10

The ambit of measures regarding the promotion of the quality of life was considered in Lawrence, at paragraphs 54 56, where this Court remarked that excessive consumption of liquor is universally regarded as a social evil linked to crime, disturbance of the public order, impairment of road safety, damage to health and other deleterious social and economic consequences.. The use of a licensing system to curtail some of the harmful effects were regarded as clearly measures designed to protect or improve the quality of life.

9.11

In our submission, section 20(1)(Aa) does not fall within the ambit of this section as:

9.11.1 The provision should not be interpreted to include legislation about the improvement of the quality of moral life, not least because of South Africas heterogenous and diverse population and for reasons already stated above.

105

9.11.2 There is no comparable social evil that the criminal prohibition is designed to abate. Indeed, as described above, harm is caused because of the criminal prohibition.

9.11.3 We have already dealt with the other purposes the State claims the legislation serves.

9.12

The right must be interpreted in a way that accords with freedom, equality and dignity. This means, inter alia, that the interpretation given must

(a)

Enhance rather than detract from citizens opportunities to pursue a livelihood.

(b)

Maximise autonomy in relation to the choices that people make for themselves, economically and morally.

(c)

Enhance respect for such choices.

9.13

In our submission, an interpretation that enhances opportunities to pursue a livelihood is consistent with those international human rights instruments that expressly recognise an occupational choice freedom. Although the South African Constitution falls short of conferring a right to work as some

106 instruments do, it is consistent with the purport of international instruments to interpret its terms in a way that enhances rather than detracts from citizens opportunities to pursue a livelihood.

9.14

Article 23(1) of the Universal Declaration of Human Rights states that Everyone has the right to work, to a choice of employment, to just and favourable conditions of work and to protection against unemployment.

9.15

Article 6.1 of the International Covenant on Economic, Social and Cultural Rights recognises the the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.

9.16

Part 1(1) of the European Social Charter states that (e)veryone shall have the opportunity to earn his living in an occupation freely entered upon.

9.17

De Waal, Currie and Erasmus state that:

From the point of view of the individual, occupational freedom is also a crucial element of individual autonomy and constitutes a basis for the exercise of other rights and freedoms. It is therefore more than a right to provide materially for oneself, but is aimed at enabling individuals to live profitable, dignified and fulfilling lives. Bill of Rights Handbook at 383

107 10. THE RIGHT TO EQUALITY

10.1

Broadly, we support the contentions that are presented on behalf of the Commission for Gender Equality. We set out our argument briefly.

10.2

Equality is a value and a right that is foundational to the Constitution. The fundamental importance of equality has repeatedly been emphasised by this Court. In President of RSA v Hugo Goldstone J stated the following: "At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked".

President of RSA v Hugo 1997 (4) SA 1 (CC) at para 41 See also Shabalala v Attorney-General, Transvaal 1996 (1) SA 725 (CC) at para 26 Brink v Kitshoff 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC) at para 33 Fraser v Children's Court, Pretoria North 1997 (2) SA 261 (CC) President of Republic of South Africa v Hugo (supra) at para 74 (Kriegler J, dissenting, but not on this point)

10.3

We contend that section 20(1)(aA) differentiates between sex workers and clients, and thus a service provider rather than a service user, by criminalizing the conduct of the sex worker and not that of the client.

108 Because of the context in which sex work takes place, this differentiation is in effect one between men and women based on attitudes about female sexuality and for that reason also constitutes a differentiation based on gender. Although there are male and transgendered sex workers, the majority of sex workers are women. By criminalizing one party to the transaction and not the other and by rendering the act of the woman and not the male client criminal, the Act discriminates against the female sex worker. This we submit constitutes indirect discrimination with a

disproportionate impact on women.

Beukes v Krugersdorp Transitional Local Council and another 1996 (3) SA 467 (W) Pretoria City Council v Walker 1998(2) SA 363 (CC), para 31

10.4

The differentiation is irrational. It falls foul of the injunction of the Court in Prinsloo v Van der Linde, at paragraph 25, where the Court said that the state:

"should not regulate in an arbitrary manner or manifest "naked preferences" that serve no legitimate government purpose, for that would be inconsistent with the rule of law and the fundamental premise of the constitutional state." Harksen v Lane NO 1998 (1) SA 300 (CC) at para 54 Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) at para 25

109

10.5

Even if there is rationality in the differentiation we submit that it is nevertheless discriminatory. This is so because the differentiation results in indirect discrimination based on gender, an enumerated ground in section 8(2), and has a disproportionate negative impact on women. To

the extent that it is based on an unenumerated ground, an objective assessment reveals that the characteristics on which it is based have the potential to impair the fundamental human dignity of human beings or to affect them adversely in a comparably serious manner. In particular the distinction is based on stigmatizing notions of female sexuality and moral intolerance and condemnation of sex workers as already described.

Harksen v Lane NO 1998 (1) SA 300 (CC) at para 54

10.6

The discrimination is also unfair, falling foul of the protection afforded by section 9(2) of the Constitution. In this regard we emphasise the

particular vulnerability of sex workers as a group and the invasive nature of the prohibition.

President of RSA v Hugo 1997 (4) SA 1 (CC) at para 112 (per ORegan J)

10.7

In Prinsloo this Court considered the meaning of "unfair discrimination":

110

"Given the history of this country we are of the view that "discrimination" has acquired a particular pejorative meaning relating to the unequal treatment of people based on attributes and characteristics attaching to them. We are emerging from a period in our history during which the humanity of the majority of the inhabitants of this country was denied. They were treated as not having inherent worth: as objects whose identities could be arbitrarily defined by those in power rather than as persons of infinite worth. In short they were denied their inherent dignity. ... In our view unfair discrimination ... principally means treating persons differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity."

Prinsloo v Van der Linde 1997(3) SA 1012 (CC) at para 31

10.8

In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 1999(1) SA 6 (CC) at para 19, the Court confirmed the nonexhaustive factors that apply in considering whether or not a discrimination is unfair. The factors are objectively assessed and

considered in light of their cumulative effect. They include the position of the complainants in society, and whether they have suffered from patterns of disadvantage, the nature of the provision or power and purpose sought to be achieved by it (including whether the provision is aimed at a worthy and important societal goal) and the extent to which the discrimination has affected the rights or interests of complainants and led to an impairment of their dignity or an impairment of a comparably serious nature.

10.9

We emphasise that the Court has affirmed a substantive approach to the equality analysis acknowledging the importance of considering the context

111 in which law works, including its social and historical context and its relationship to systemic and structural forms of domination in society with a view to remedying disadvantage and subjugation.

President of the Republic of South Africa v Hugo 1997(4) SA 1 (CC) at para 41 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999(1) SA 6 (CC) at paras 60-62 Pretoria City Council v Walker 1998 (2) SA 363 (CC) at paras 31 and 85

11.

SECTIONS 2 AND 3

11.1

Section 3 relies for its operation on the validity of section 2. If section 2 is invalid, section 3 has no effect because its deeming provisions relate to the section 2 offence and in particular what suffices to meet the criterion of keeping a brothel.

11.2

Our submission is that section 2 violates the Constitution because it is void for vagueness.

11.3

Our further submissions regarding sections 2 and 3 focus on the impact of the criminal prohibition on the rights of sex workers, and in particular the

112 way in which it violates their own rights to freedom and free economic activity. Firstly, the prohibition on keeping a brothel renders meaningless or futile the protections the constitution affords to have sex for reward without criminal sanction. Secondly, to the extent that a sex worker

chooses to manage her own establishment, whether alone, or together with others, the prohibition in effect constitutes prohibition on sex for reward under a different guise.

11.4

Although we believe that the prohibition on brothel keeping contained in section 2 and 3 violates the rights of both sex workers and brothel owners, the arguments below focus on the violation of sex workers rights.

12.

SECTION 2 IS VOID FOR VAGUENESS

12.1

The problem with the prohibition on keeping a brothel in section 2 of the Act is that critical aspects of the definition of brothel are vague and overly broad. The ambit and uncertainty of the scope of the offence

creates the further problem of discretionary law enforcement.

12.2

If there is uncertainty as to the ambit of the offence this inevitably vests law enforcement officials with a wide discretion. Given the nature of the enforcement methods, described above, this is self-evidently menacing to civil liberties. This Court has emphasised that the rights enshrined in the

113 Constitution cannot be made dependent on the discretion of the police or the prosecuting authorities.

S v Mbata; S v Prinsloo 1996(2) SA 464 (CC) at paras 22-3 S v Zuma and Others 1995 (2) SA 642 (CC) at para 28

12.3

The most important decision from South Africa in this regard is Dawood and Ano v Minister of Home Affairs and Others 2000(3) SA 936 (CC). One of the issues in that case was whether the conferral by statute of an unguided discretion was compatible with the rule of law. observed at para 47: The Court

It is an important principle of the rule of law that rules be stated in a clear and accessible manner. It is because of this principle that section 36 requires that limitations of rights may be justifiable only if they are authorised by a law of general application. Moreover, if broad discretionary powers contain no express constraints, those who are affected by the exercise of the broad discretionary powers will not know what is relevant to the exercise of those powers or in what circumstances they are entitled to seek relief from an adverse decision. In the absence of any clear statement to that effect in the legislation, it would not be obvious to a potential applicant that the exercise of the discretion conferred upon the immigration officials is constrained by the provisions of the Bill of Rights and, in particular, what factors are relevant to the decision to refuse to grant or extend a temporary permit. If rights are to be infringed without redress, the very purposes of the Constitution are defeated.

The Court went on to observe at para 48:

114 There may be circumstances of course, where a decision to refuse the grant or extension of the permit may subsequently be challenged in administrative review proceedings. The fact however that the exercise of a discretionary power may subsequently be successfully challenged on administrative grounds, for example that it was not reasonable, does not relieve the legislature of its constitutional obligation to promote, protect and fulfil the rights entrenched in the Bill of Rights. In a constitutional democracy such as ours the responsibility to protect constitutional rights in practice is imposed both on the legislature and on the Executive and its officials. The legislature must take care when legislation is drafted to limit the risk of an unconstitutional exercise of the discretionary powers it confers. (emphasis added)

12.4

This approach finds support in America and Canada. In the American jurisprudence, a vague law constitutes a denial of due process. (The

leading cases are conveniently collected in Reference Re Criminal Code, ss 193 and 195.1(1) (C ) (Manitoba) 48 CRR 1 at 24-26).

12.5

In Connally v General Construction Co. 269 US 385 the Court stated at 391: a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. In Cline v Frink Dairy Co 274 US 445 the Court stated at 465 that the first essential of due process of law was that

12.6

it will not do to hold an average man to the peril of an indictment for the unwise exercise of his knowledge involving so many factors of varying effect that neither the person to decide in

115 advance nor the jury to try him after the fact can safely and certainly judge the result. In Papachristou v City of Jacksonville 405 US 156, Douglas J speaking for the Court stated at 162:

12.7

This ordinance is void for vagueness, both in the sense that it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and because it encourages arbitrary and erratic arrests and convictions. Living under a rule of law entails various suppositions, one of which is that all persons are entitled to be informed as to what the state commands or forbids. Lanzetta v New Jersey 306 US 451, 453.

12.8

The Supreme Court of Canada has sought to keep the concepts of vagueness and overbreadth distinct.

12.9

In R v Nova Scotia Pharmaceutical Society 10 CRR (2d) 34 at 47-48 the Court summarised its approach to the vagueness doctrine as follows:

1.

2. 3.

Vagueness can be raised under section 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under section 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be prescribed by law. Furthermore, vagueness is also relevant to the minimal impairment stage of the Oakes test. The doctrine of vagueness is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion. Factors to be considered in determining whether a law is too vague include (a) the need for flexibility and the interpretative role of the courts, (b) the

116 impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate; and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps co-exist. Vagueness, when raised under section 7 or section 1 in limine, involves similar considerations. On the other hand, vagueness as it relates to the minimal impairment branch of section 1 merges with the related concept of overbreadth. The court will be reluctant to find a disposition so vague as not to qualify as law under section 1 in limine, and will rather consider the scope of the disposition under the minimal impairment test.

4.

5.

12.10 The discussion of vagueness and overbreadth by Sopinka J in Osborne v Canada (Treasury Board) (1991) 4 CRR (2d) 30 at 45-46 is instructive:

Vagueness can have constitutional significance in at least two ways in a section 1 analysis. A law may be so uncertain as to be incapable of being interpreted so as to constitute any restraint of governmental power. The uncertainty may arise either from the generality of the discretion conferred on the donee of the power or from the use of language that is so obscure as to be incapable of interpretation with any degree of precision using the ordinary tools. In these circumstances, there is no limit prescribed by law and no section 1 analysis is necessary as the threshold requirement for its application is not met. The second way in which vagueness can play a constitutional role is in the analysis of section 1. A law which passes the threshold test may, nevertheless, by reason of its imprecision, not qualify as a reasonable limit. Generality and imprecision of language may fail to confine the invasion of a Charter right within reasonable limits. In this sense vagueness is an aspect of overbreadth. (emphasis added)

12.11 The European Court of Human Rights recognises a similar doctrine. In the Sunday Times v The United Kingdom 2 EHRR 245 (1979), the European Court of Human Rights was required to consider what was

117 meant by the expression prescribed by law in the European Convention on Human Rights. The majority of the Court held as follows at 271 para 49:

In the Courts opinion, the following are two of the requirements that flow from the expression prescribed by law. First, the law must be adequately accessible: The citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: He must be able if need be with appropriate advice to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

12.12 In our submission, section 2 is vague and for this reason either violates the requirement of the rule of law or fails to meet the requirement that protected rights (here, sex workers rights) be limited only in accordance with section 33; namely by a law of general application that constitutes a reasonable limitation nor one that is justifiable in an open and democratic society based on freedom and equality.

12.13 The rule of law is a concept that underlies a constitutional state.

Fedsure Life Assurance Ltd & Others v Greater Johannesburg Transitional Metropolitan Council and Others, citation, at paras 53-60

118 12.14 In Diceys formulation of the rule of law more than 100 years ago, he stated:

It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else.. A.V. Dicey An Introduction to the Study of the Law of the Constitution 10th ed) (1959) at 202-203

12.15 Dicey also explained that it means: that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint. A.V. Dicey An Introduction to the Study of the Law of the Constitution 10th ed) (1959) at 202-203 See too De Lange v Smuts NO and Others 1998(3) SA 785 (CC), par 46

12.16 Relevant to the present enquiry is the requirement that laws and more particularly those that limit rights must be accessible and reasonably

119 precise. As observed by Mokgoro J in President of the RSA v Hugo 1997 (4) SA 1 (CC) at para 102:

The need for accessibility, precision and general application flow from the concept of the rule of law. A person should be able to know of the law, and be able to conform his or her conduct according to the law.

12.17 Ackermann J, in his description of the concept and values of the constitutional state (regstaat) in S V Makwanyane 1995(3) SA 391 (CC) observed at par 156:

We have moved from a past characterised by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional State where State action must be such that it is capable of being analysed and justified rationally. The idea of the constitutional State pre-supposes a system whose operation can be rationally tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with these core concepts of our new constitutional order. Neither arbitrary action nor laws or rules which are inherently arbitrary or must lead to arbitrary application can, in any real sense, be tested against the precepts or principles of the Constitution. Dawood and Ano v Minister of Home Affairs and Others 2000(3) SA 936 (CC), paras 47-8

12.18 It is a fundamental principle of the rule of law that persons should be able to regularise their affairs, secure in the knowledge that they will be at liberty to perform any action that has not been criminalized by a law of general application. As the expression itself suggests, the rule of law

120 requires that there must be rules of law that operate at some level of generality and specificity. If human conduct is to be subjected to the governance of law, then the rule of law requires that this control must occur by virtue of the operation of rules rather than by virtue of a series of ad hoc determinations on the part of administrators. Thus conceived, the rule of law requires, inter alia, that laws, especially criminal laws, be certain and give those by whom they are bound fair notice of which forms of conduct are proscribed.

12.19 It requires that persons should be subjected to legal regulation by means of rules which have an ascertainable content. By extension, the rule of law implies the absence of wide and unguided discretionary authority on the part of government and its officials, since the existence of unconstrained discretion is likely to lead to arbitrary outcomes.

Dawood and Ano v Minister of Home Affairs and Others 2000(3) SA 936 (CC) paras 47 - 8

12.20 The vagueness doctrine is well developed in South African administrative law in the context of delegated legislation. This jurisprudence is helpful in articulating the constraints that apply to parliament when legislating in conformity with the prescripts of the rule of law.

121 12.21 The correct approach that a Court should adopt when deciding whether subordinate legislation is void for vagueness was articulated as follows:

The court must first construe the by-law or regulation, applying the usual canons of construction with no bias towards benevolence. Having ascertained the meaning, the court must then ask itself whether the by-law or regulation, so construed, indicates with reasonable certainty to those who are bound by it the act which is enjoined or prohibited. If it does, it is good; if it does not, it is bad; that is the end of the matter. R v Jopp 1949(4) SA 11 (N) at 13-14 S v Galguts Garage 1968(4) SA 725 (T) at 729 H Coronation Freehold Estates v Municiaplity of Balfour 1966 (2) SA 724 \(T) at 726 A

12.22 Similarly, in Brierly v Philips [1947] 1 KB 541 at 543 Lord Goddard stated:

It is surely desirable that orders creating criminal offences should be stated in language which persons who may commit the offences can understand. I am certainly not prepared to find persons guilty of criminal offences when the orders which they are charged with violating are couched in language which is open to all sorts of meanings and causes all sorts of difficulties, so that the persons to whom they apply cannot know whether they are acting legally or not, unless possibly they get Counsels opinion, or at any rate a solicitors advice. Cited with approval in:

122 S v Meer 1981(1) SA 739 (N) at 742 (A) S v Mahlangu 1986(1) SA 135 (T) at 139 F

12.23 In our submission, section 2 violates the principles articulated above. For ease of reference section 1 defines a brothel to mean 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 defined, also in

section 1 to mean carnal intercourse otherwise than between husband and wife.

12.24 It is not reasonably certain what conduct is proscribed by the section. The case law relevant to section 2 has been referred to above. There is very little case law on the meaning of the word brothel and in particular the meaning and breadth of the term lewd and indecent. But as Wessels J remarked in S v H 1977 (2) SA 954 (A) at 957:

There could no doubt be a great variety of lascivious purposes which could be characterised as being lewd or indecent within the meaning of sec. 2 of the Act. 12.25 In S v D 1975 (4) SA 835 (T) at 835 E-H it was held that a pelvic

massage consisting of the masturbation of male clients by women was lewd and indecent.

123 See too S v P 1975(4) SA 68 (T)

12.26 In S v M 1977 (3) SA 379 (C) the words lewd and indecent conduct were held to include:

shows at regular intervals at (the appellants) house in which Coloured girls performed various numbers of acts before an audience of White men. Some of the girls undressed completely and danced in the nude, other girls participated in lesbian acts, and, in a "back-to-school" act, the girls undressed and were smacked on their behinds by the teacher, a young Coloured girl. These girls were all paid by the appellant and after the show dancing took place between the girls and the audience.

12.27 What further conduct would be considered lewd and indecent? In our submission the section lacks the specificity required to meet the prescripts of the rule of law.

12.28 In R v K 1961 (2) 381 (T) at 385 B-E Williamson J left open the question whether premises that are kept or used for persons to visit for the purpose merely of having unlawful carnal intercourse constitute a brothel because on the facts it was found proved that the intercourse in question was at times for gain.

12.29 At what point must members of the public treat the use or keeping of premises for the purposes of carnal intercourse outside of marriage as

124 conduct proscribed by the section? Even if the section can reasonably be interpreted, it would alone constitute an invasion of privacy of consenting adults.

13.

SECTION 2 AND 3 VIOLATE THE SAME RIGHTS AS SECTION 20(1)(aA)

13.1

In addition to the objections about vagueness, section 2 violates the same rights of sex workers as does section 20(1)(aA). In this regard it is

emphasised that the section can be used to prosecute sex workers who, for example, conduct their work from a rented flat as occurred in S v E 1967 (3) SA 500 or on premises that are de facto controlled by the sex workers as occurred in S v M 1977 (4) SA 886 (A). A sex worker might

also be prosecuted under the deeming provisions of section 3(c) if she were to hand over the whole of her earnings in receipt of a fixed salary as was suggested in S v F 1975 (3) 167 (T).

13.2

To this extent the proscription is subject to the same arguments that we have advanced above and we refer to these arguments.

13.3

The impact of the section 2 offence on sex workers is however not limited only to the violation of a sex workers rights to freedom, dignity and privacy when the sex worker herself falls to be prosecuted under the section.

125 These rights are also infringed by preventing others from keeping brothels, and thus a place for a sex worker to conduct her work.

13.4

Even if the act of sex work itself was not criminally proscribed, by proscribing the keeping of brothels, a sex worker is effectively unable to conduct her trade in association with other people.

13.5

The evidence before the Court on how the criminal proscription on brothels affects the ability of sex workers to work in safe locations under fair conditions of employment demonstrates the importance of allowing sex workers to work legally in association with others.

14.

JUSTIFICATION

14.1

In the event that this Court finds that section 20(1)(aA) violates any right, the State argues that the limitation is justified under the limitations clause, alternatively, that any order of invalidity be suspended for 2 to 3 years.

14.2

The state seeks to justify limitations on the rights by recourse to various arguments including an argument based on public opinion; protection of public health, trafficking in women, child prostitution, generation of related crimes, drug use and public nuisance.

126

14.3

The State regards the criminalisation of sex work as a permissible response that seeks to close down the industry.

De Vries, Bundle C, p 44, para 107.

14.4

We submit that the purpose of protecting against the various social ills that the State claims is served by the prohibition is a purpose constructed by the State and not the purpose that the legislation is designed to serve.

14.5

Indeed this is borne out by the States own expert, Schurink, in his most recent affidavit attached to the appellants expert report.

Schurink, Bundle F, Vol I, p 1628 1652.

14.5.1 Schurink makes the point that the State has failed to formulate a clear and implementable policy in respect of prostitution.

14.5.2 In State policy documents dealing with the social ills that the State says are served by section 20(1)(aA) and sections 2 and 3 of the Act, no mention is made of combating prostitution or criminalizing adult sex work or brothels in order to address those ills. Reference is made to the National Crime Prevention Strategy, the National

127 Drug Master Plan, the HIV/ AIDS STD Strategic Plan for South Africa and South Africas National Framework for Womens Empowerment and Gender Equality of the Office on the Status of Women in the State Presidents Office and the National Programme of Action for Deponent (sic) Children in South Africa.

14.5.3 It is particularly noteworthy that in the First South African Government Report on CEDAW in 1999 the Government comments specifically on the contents of Article 6 of CEDAW. The report refers specifically to the Sexual Offences Act and acknowledges that some constitutional rights may be violated by the Act, including the rights to equality, dignity, freedom and security of the person, privacy, freedom of association and the right to choose ones trade, occupation or profession. The report states that:

In its commitments to implementing the Beijing Platform for Action, the Department of Justice undertook to review sexual offences legislation to decriminalise, where necessary, and to ensure greater protection for women. The Justice Vision 2000 document and the draft gender policy also refer specifically to the decriminalizing of prostitution. Artz, Bundle F, Vol 2, p 1789, paras 46 48,p. 1801-2, Annexure LA3.

128 14.5.4 The South African Law Commission is developing proposals concerning adult commercial sex work. The Ministry of Justice has identified that this should include the protection of adult sex workers from abuse and exploitation and has stated that, the new law must also afford protection to sex workers against violence, exploitation and a variety of health risks. In short, it should provide this group of women with some sort of legal refuge that guarantees their rights as described in our Bill of Rights. Schurink, Bundle F, Vol 1, p1639, par 26. Schurink, Bundle F, Vol 2, p 1755-1756, Annexure S 10.

14.5.5 The State has retained the inherited prohibitive legislation within an environment of growing tolerance of prostitution and brothels and state resources have been directed towards reviewing the Act in terms of the rights guaranteed in our Bill of Rights.

14.6

Before dealing with the justifications offered by the State for the prohibitions, we make some general points.

14.7

The States contention that the prohibitions are a legitimate policy option available to it is based on two flawed assumptions.

129 14.7.1 Firstly, the State assumes that regulation of a legalized industry entails a complex and intrusive set of laws catered specifically to deal with sex work on the one hand, and brothels on the other. This they say is prohibitively expensive and problematic to enforce. This is flawed. There are various different ways in which sex work might be regulated by law. Even without any specific legislation dealing with the industry there already exists a host of laws capable of regulating sex work ranging from labour laws, business laws, liquor laws, solicitation laws and nuisance laws. The States

reliance on intrusive laws involving testing and monitoring of sex workers regarding STDs, drugs and related crime and its postulate of complex, hard to enforce regulations is thus misconceived.

14.7.2 Secondly, the State assumes that the removal of the criminal sanction by this Court will result in a consequent mushrooming of sex work and the entry of many new people into the industry. This then forms the factual basis for the States submission that following legalisation there is a concomitant increase in all of the social ills that the State says are inevitably associated or inherent in sex work. The assumption that there will be a boom in sex work is misplaced and its factual basis has not been demonstrated.

130 14.8 Even if there might be an increase in sex work there is no evidence to say that this would be anything more than temporary while the industry readjusts. In particular:

14.8.1 The State has failed to provide factual information regarding the impact of the introduction of the criminal sanction in section 20(1)(aA) in 1988.

14.8.2 Instead it relies on evidence of Philips relating to various Australian states where brothels have been legalized. This evidence does not tend to prove the proposition the State asserts. It is common sense that sex work patters will depend on the context of a country, the extent to which prohibitions are enforced or tolerated by the law enforcement agencies, demand, opportunities available in a society and State responses. In any event, the evidence relied upon to show that there was a boom in some Australian states following legalisation of brothels is based on newspaper reports and statements made by politicians and not empirical research.

14.8.3 On the States own version, sex work is scarcely an attractive work option. It is highly unlikely to attract new recruits in the event of the prohibition in question being struck down.

131 The nature of the right

14.9

We submit that all rights are important.

However, at the outset we

emphasise that the rights limited by the measure are rights that are foundational to our democratic order.

14.10 They are also values that inform the content of all other rights protected in the bill of rights.

Ferreira v Levin NO 1996(1) SA 984 (CC) Dawood v Minister of Home Affairs 2000(3) SA 936 (CC) at para 35 President of RSA v Hugo 1997 (4) SA 1 (CC) at para 41

14.11 The central position accorded to these rights in the constitutional order must be recognised in balancing the various considerations in the limitations enquiry.

S v Makwanyane 1995 (3) SA 391 (CC) at para 104

The nature and extent of the limitation

14.12 The measure is highly intrusive; by imposing a criminal sanction, the sex worker is exposed to the deprivation of liberty. Freedom and autonomy in

132 relation to sex work is wholly denied. The extensive intrusion must also be considered in the limitations enquiry.

S v Makwanyane 1995 (3) SA 391 (CC) at para 104

14.13 Similarly the economic freedom right is limited in a highly intrusive manner. By prohibiting sex work completely it denies the choice in full. It does not, for example, seek to regulate the right.

14.14 In this regard it is instructive to have regard to Article 12(1) of the German Constitution, (similar to s. 22 of the 1996 Constitution) which provides:

All Germans have the right freely to choose their occupation or profession, their place of work, and their place of training. The practice of trades, occupations and professions may be regulated by or pursuant to a law.

14.15 The German provision has been held to permit both the choice and practice of an occupation or profession to be regulated. Different levels of scrutiny apply to each and if the legislature seeks to regulate choice it is subject to greater constraints than if it seeks to regulate the practice of a profession. The practice of a trade, occupation or profession can be

restricted by reasonable regulations predicated on considerations of the common good. Choice of a trade, occupation or profession may be

133 restricted only insofar as an especially important public interest compellingly requires [and] only to the extent that protection cannot be accomplished by a lesser restriction on freedom of choice. The German Courts adopt the approach that the more invasive the measure in inhibiting choice, the more strict are the requirements for its justification.

De Waal, Currie and Erasmus The Bill of Rights Handbook at 381 citing D Currie The Constitution of the Federal Republic of Germany (1994) 300, 382.

14.16 In S v Bhulwana, S v Gwadiso 1996(1) SA 388 (CC) at para 18 this Honourable Court explained that the more substantial the inroad into fundamental rights, the more persuasive the grounds of justification must be.

14.17 Because of the importance of the rights involved and the intrusive nature of the limitation, the justifications offered by the State must be particularly persuasive.

The importance and purpose of the limitation

14.18 We contend that the purpose of the prohibition is a moral one and in light of the attitudes underpinning the moral position, that this purpose cannot

134 justify the limitation of important rights. Similarly we contend that to the

extent that the measure may be said to protect women from self-harm, this purpose is not one that can normally be pursued through the criminal law. We accept that some of the social ills that the State claims justify the measure warrant the States attention, for example drugs, HIV/Aids, trafficking in women and child prostitution. However, we submit that they are not served by the impugned prohibition.

Public opinion

14.19 One argument advanced by the State is that the issue of prostitution is a hotly contested one, on which members of the public hold sharply divided views, including the belief that prostitution should be prohibited in toto. This belief, according to De Vries, may be premised on the moral belief that sexual intimacy is an aspect of our humanity that should not be commodified. It may also be premised on feminist beliefs or on religious convictions. In short, he says, the issue of prostitution is a contested

one regarding which rational people have sharply divided views but that many people in South Africa and probably a majority believe that prostitution should not be decriminalised. Some people hold that view on what they sincerely and deeply believe to be important moral principles.

De Vries, Bundle A, p 10, para 10.1.

135

14.20 The State concedes that section 20(1)aA has a moral basis and is premised at least in part on the enforcement of legal moralism. They say that the existence of contested moral viewpoints should be taken into account when it comes to justification.

De Vries, Bundle A, p 14, paras 10.6 11.

14.21 We submit that the existence of contested moral viewpoints alone should not be taken into account.

S v Makwanyane and Another 1995 (3) SA 391 (CC), at para 88

14.22 It should be noted that the 1983 Schurink and Levinthal research referred to by De Vries to support the statement that a majority of prostitutes interviewed said that they would not like to see prostitution decriminalised at that time was based on research in then-White areas. The claim is, in any event, bewildering since the actual prohibition on prostitution was only introduced in 1988.

De Vries, Bundle A, p 12, para 10.5.

136 14.23 Section 20(1)(aA) has the effect of criminalizing the activity of a minority group of vulnerable people, mainly women, who are already marginalized by societys negative and judgmental attitude towards them. It is precisely against such vagaries that the Bill of Rights is designed to protect, as Makwanyane recognises. In this context the moral (or even religious) disapproval of some members of the public cannot legitimately be taken into account in the limitations enquiry.

14.24 To the extent that the State seeks to rely on religious views that oppose prostitution and which may be sincerely held by some people, we submit that these views cannot influence what the Constitution dictates. Rather, diversity of moral opinion must be tolerated in a society based on freedom and which protects freedom of religion, conscience and belief.

National Coalition for Gay and Lesbian Equality v Minister of Justice 1999(1) SA 6 (CC) at para 38

Sex work is degrading to women

14.25 There are various feminist theoretical frameworks in relation to sex work. Lillian Artz summarises the various feminist discourses on sex work and some of the feminist debates. She identifies the radical, liberal, socialist

and contractarian feminist theories.

137

Artz, Bundle F, p 1772 1784, paras 7 37.

14.26 The state argues that prostitution degrades women, that it is destructive of the dignity and self esteem of women who are prostitutes because it is an activity which commodifies their sexuality and dehumanises them. In

support of this argument, the state cites Andrea Dworkin and Catherine MacKinnon. States submissions, paras 8 11.

14.27 Andrea Dworkin and Catherine MacKinnon subscribe to a so called anti sex radical feminist school. For Dworkin and MacKinnon prostitution is the central metaphor for all heterosexual intercourse, which by the very act of penetration is violation. Heterosexual sex itself is synonymous with male supremacy and female domination and objectification. Dworkin

argues that all women who enjoy heterosexual intercourse are collaborators. It is within the framework of all sexual intercourse causing the subordination and violation of women, that Dworkin and Mackinnon associate sex work with sexual abuse, rape and violence against women. They are of the view that sex work can never be a choice, even from within a limited range of options. They seek the abolition of sex work. Sharon Stanton A critique of Feminist Discourses on Sex Work/Prostitution at 5 or Andrea Dworkin Intercourse 1987

138 Artz, Bundle F, Vol 2, p 1779, para 23.

14.28 We submit that it is not appropriate to apply any of the theoretical frameworks summarised by Artz in South Africa without considering the social and economic context within which sex work occurs.

14.29 Even radical feminists such as Catherine Mackinnon do not support criminalizing sex workers as a legitimate method of securing the abolition of sex work, and argue that such criminalisation is itself a form of sex discrimination.

Catherine A Mackinnon Prostitution and Civil Rights, Michigan Journal of Gender and Law vol 1(1993), downloaded from the internet at http://prostitutionresearch.com/mackinnon1.html

14.30 Many women in South Africa choose to work as sex workers from a very limited range of options and work under exploitative conditions. Although it is recognised that economic, social and sexual inequality limits womens choices of profession, recognising the context in which women become sex workers in South Africa allows for legal remedies aimed at the

139 improvement in the conditions under which sex workers work and also for protection of women from forced prostitution and trafficking.

14.31 We submit that only an approach to sex work that recognises the agency of sex workers within their constrained choices and poverty is consistent with our Bill of Rights and international conventions. Such an approach

could never seek to criminalise sex workers, as such criminalisation further entrenches the disadvantage suffered by this group of vulnerable women.

14.32 International Human Rights instruments draw the distinction between voluntary and forced prostitution, condemning only the latter. There has also been recognition of sex workers agency and the need to protect sex workers rights. South Africa has an obligation to take measures to protect against exploitation of prostitution and prevent forced prostitution. There is no international obligation to prohibit sex work.

14.33 Article 6 of the CEDAW states that States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. The Convention thus does not require States to prohibit prostitution per se but rather to take measures which are appropriate to suppress the exploitation of

140 prostitution. The wording of Article 6 thus implies that not all prostitution is exploitative or coercive.

14.34 This is further evidenced by the fact that while the text of CEDAW was being drafted, an amendment introduced by Morocco requiring the suppression of prostitution per se was rejected. Jo Doezema Forced to Choose: Beyond the Voluntary v. Forced Prostitution Dichotomy in Kempadoo and Doezema (eds) Global Sex Workers 1998 Routledge New York p 39

Public health: STIs / HIV

14.35 It is the States contention that sex work contributes to the spread of HIV/AIDS and STIs because by definition prostitutes engage in indiscriminate sexual intercourse with multiple partners Sex workers and their clients, they say, are high-risk groups for HIV/AIDS and sex work plays a disproportionately important role in promoting the spread of HIV/AIDS and STDs. The State asserts that the risk has become

particularly significant in light of the devastation caused by the HIV-AIDS pandemic. Although the State accepts that sex workers are exposed to this risk they emphasise that sex workers are conduits for the spread of

141 STDs through their indiscriminate and daily sexual intercourse with multiple partners.

States submissions, paras 20-21

14.36 It is interesting that in the States own evidence, Melissa Farley summarises the discussion and analysis of the content of the medical and social science prostitution data bases. She notes that: Although at first glance, the public health attention to risk of HIV infection includes the prostituted woman herself, on closer inspection, it becomes apparent that the overarching concern is for the health of the customer to decrease his exposure to disease. In spite of extensive documentation that HIV is overwhelmingly transmitted via male to female vaginal and anal intercourse, not vice versa, one of the misogynist myths about prostitution is that she is a vector of disease, that she is ultimately the source of contamination of the good wife through the husbands weak moment. The focus on HIV in the prostitution literature is a variant of this prejudice against prostituted women. Farley and Kelly, Prostitution: A Critical Review of the Medical and Social Sciences Literature, Women and Criminal Justice, vol 11, no 4 2000. Bundle A, Vol 2, p 136.

14.37 Though it is unclear to what extent the State persists in relying on its evidence regarding HIV / Aids and STDs, it seeks to introduce evidence to show that commercial sex acts occur in situations which are not protected by condoms. Even if condoms are used, they offer limited protection.

142 Decriminalisation, they say, does nothing to help the situation and is wishful thinking to believe that legalizing prostitution will be a magic wand to solve problems relating to condom usage. The experience in other countries shows that legalizing prostitution does not lead to better safe practices and even if condoms were 100% effective existing rates of inconsistent and ineffective use is sufficiently high to place sexually active individuals with multiple partners at a significant risk.

De Vries, Bundle A, Vol I, p 38 39, paras 28 31.

14.38 Our submissions on the states HIV / STI justification arguments are as follows:

14.38.1

Firstly, if this were truly a legislative purpose, the State would have programmes to deter promiscuity generally, not merely commercial sex.

14.38.2

Secondly, the criminalisation of sex work itself increases sex workers vulnerability to sexually transmitted infections, including HIV. The reasons for this are two-fold: first, sex workers access to health and welfare services is limited by criminalisation and second, sex workers are less able to negotiate condom use because of their exposure to violence

143 from clients. The violence that sex workers encounter is

made worse by the criminal context in which sex work takes place. If criminalisation aggravates rather than helps health problems, the limitation cannot be described as reasonable as it does not serve the purpose it is designed to serve. Even if it were to serve this purpose marginally, it cannot be said to be reasonable.

14.38.3

Thirdly, even if the criminal response might be said to be a rational response, it is both unreasonable and unnecessary. More particularly, the objective sought to be achieved could more reasonably be achieved through other less restrictive means; in particular, making health services generally available to sex workers and through encouraging and providing health interventions targeted at sex workers aimed inter alia at ensuring condom use and STI treatment. Compared with an approach which stigmatizes and

criminalizes the class in an obviously futile attempt thereby to eradicate sex work, and thereby STDs, a targeted intervention approach is far more consistent with the humane and dignified treatment of sex workers. This approach also acknowledges the vulnerability of sex workers

144 as a group; including their vulnerability to sexually transmitted infection.

Delany, Bundle B, p 70 71, para 3.1 - 3.3 .

14.38.4

Fourthly, the ambit of the prohibition is so wide as to cover sexual conduct which covers little or no risk of transmitting infectious diseases.

14.39 The amicus has sought to introduce evidence to support these contentions. Of particular relevance to our assertions are the Delaney and Gardner affidavits.

14.39.1 There is common cause evidence that sex workers, their clients, truck drivers (and in our evidence, migrant workers) play a disproportionately high role in the transmission of STIs. The State describes the group as vectors or a

reservoir of disease, whereas the RRHU describes as a core group the phenomenon of a group with multiple partners, high levels of unprotected sexual activity and associated higher likelihood of transmitting disease.

145 14.39.2 There is also common cause or otherwise incontrovertible evidence that sex workers, primarily women, are more vulnerable to HIV acquisition than men. This existing

vulnerability is enhanced by the fact that women with STIs are less likely to have symptoms than men and thus present for treatment and because women are less likely to access health services for STIs because of the stigma attached. Costs and competing financial priorities also play a part. The state pleads no knowledge in relation to our evidence.

Delany, Bundle B, p 72, para 3.7 8. De Vries, Bundle C, p 33, para 75. Van Eeden, Record of Appeal, Vol III, p. 264 265, para 15.

14.39.3 Key to the States submission is the idea that the criminal sanction is designed as a health response. An obvious

difficulty with this argument lies in the fact that the health problems are present in a criminalized context.

14.39.4 The evidence adduced demonstrates that in fact the criminal context worsens the situation. This is because in effect

access to health services is limited within the criminalized

146 context. In part this is because of mistreatment at the hands of health care workers (disclosure of identities, refusal to supply condoms or treatment for repeated STIs), in part because of fear of this treatment and in part because sex workers consequently access unsafe and unworkable medical alternatives.

Gardner, Bundle B, p 44, para 42. Delany, Bundle B, p 74 76, para 5.

14.39.5 The State objects to this evidence as inadmissible hearsay. Our contention is that this evidence is admissible as evidence by field workers detailing the nature of the complaints received by SWEAT in the course of their work with sex workers. To the extent that this is hearsay evidence we contend it is admissible under section 3 of the Law of Evidence Amendment Act either to show the nature of the complaints and / or the truth of their contents. The States further objection to this evidence is that, even if true, it does not establish a causal link between denial of health care services and the criminal sanction. We submit that the

probabilities and common sense suggest that the criminal sanction contributes to the inaccessibility of health services.

147 It is only plausible to suggest that health workers who mistreat sex workers who approach them do so because of the criminality associated with the client and that fear of disclosure of a criminal identity is likely to discourage sex workers from seeking help when they need it. A sex worker would self evidently fear accessing health services if by doing so a criminal identity is revealed.

De Vries , Bundle C, p 23, para 58; p. 34 35, para 79. Cf Permanent Secretary, Department of Welfare, EC v Ngxuza 2001 (4) SA 1184 (SCA) par 17

14.39.6 Because of the core-group phenomenon, interventions targeted at sex workers, their clients, truck drivers and migrant workers can have a powerful impact. Evidence of a study that shows that an intervention amongst 500 sex workers with 80% HIV prevalence could avert 10 200 new infections compared with 88 among 500 low income men with an HIV prevalence of 10%. We do not understand the State to have controverted this evidence.

Delany, Bundle B, p 97 98, para 17. De Vries, Bundle C, p 46, para 110.

148

14.39.7 There is also evidence of programmes that have sought to provide education and access to STI services that have met with some success. For example, interventions aimed at changing sexual behaviour among high risk groups of men who have sex with sex-workers have met with some success in Kenya (among truck drivers) and Tanzania.

Delany, Bundle B, p 92, para 15.6. Van Eeden, Bundle A, Vol 1, p 39, par 30.

14.39.8 The State disputes this evidence to the extent only that it is inconsistent with Van Eedens affidavits. know precisely what they are disputing. It is difficult to

14.39.9 There is also evidence of programmes aimed at improving condom use that have met with success in reducing STI incidence. In particular, we refer to the 100% Condom Use Programme in Thailand which has led to improved condom use and a dramatic impact on the prevalence of all STIs including HIV and which is estimated to have reduced STI incidence by 80% and prevented over 2 million HIV infections. A Cambodian programme based on the Thai

149 programme also led to increased condom use and decreased HIV prevalence.

Delany, Bundle B, p 92, para 15.6, p 93, para 15.9, p 94 para 15.10. De Vries, Bundle C, p 45, para 108. Van Eeden, Bundle A 2 p 39, para 30.

14.39.10 Indeed there are examples in South Africa of successful STI interventions with sex workers, including the Lesedi Project in a Free State gold mining area and the Mothusimpilo Project in Carletonville. In addition, condom use in Hillbrow (an

environment associated with organised crime and high rates of physical and sexual violence) is increasing in response to targeted interventions.

Delany, Bundle B, p 96 97, para 16. De Vries, Bundle C, p 46, para 109.

14.39.11 On the states apparent contention that promoting condom use is not a viable solution because they are ineffective in preventing the spread of HIV, we have the following submissions:

150

14.39.11.1

The averments are inconsistent with the Thailand evidence.

14.39.11.2

Peer- review published studies referred to show that male condoms are manufactured and quality controlled by methods that result in effective barrier methods protection from

sperm and particles inclusive of dimensions of all sexually transmitted pathogens.

Delany, Bundle B, p 94, para 15.12. De Vries, Bundle C, p 45, para 108.

The review indicates that use of the male condom during vaginal intercourse significantly reduces the risk of HIV infection, and probably reduces the risk of gonorrhoea. It is thus

reasonable to expect that (male-)condom use will reduce the risk of HIV infection and Gonorrhoea. The States evidence does not controvert this.

Delaney, Bundle B, p 95, para 15.14 - 15.15.

151 14.39.11.3 On other STIs, the review concludes that there is inadequate evidence to draw conclusions about condom effectiveness against the other STIs. Though not risk-free, male-condom use thus reduces the risk of STIs if used during vaginal intercourse. We do not understand the States evidence to controvert this.

Delaney, Bundle B, p 95, para 15.14.

14.39.11.3

Regarding the quality of South African

condoms, the evidence that we seek to introduce is that the SABS and the Health Department (at least in regard to public sector systems distribution) to ensure have that introduced only quality

condoms are distributed. understand the States

We do not evidence to

controvert this.

Delaney, Bundle B, p 91, para 15.3.

152 14.39.12 Although it is common cause that sex workers can accurately be described as a core group, the evidence indicates and we do not understand the state to have controverted this, that not all sex workers can be described in this way. And, given that sex workers health is their

livelihood, the majority of sex workers want to stay healthy and protect themselves from infection. The State regards the vulnerability of sex work to STI health hazards as intrinsic in the nature of the activity. This notion is stigmatizing and inaccurate. Furthermore, in a context where HIV

prevalence is rising rapidly, such judgmental beliefs will encourage unjust scape-goating of sex workers for the devastation resulting from the HIV epidemic.

Jacobs, Bundle B, p 9, para 4.5. De Vries, Bundle C, p 7, para 16. Delaney, Bundle B, p 93, para 15.7

14.39.13 Those who work to provide services for sex workers battle to do so because the criminalized context in which they take place reduces access to interventions.

153 14.39.14 The State seeks to justify the criminal sanction on the basis of prevention of HIV/ AIDS. It states that criminalizing the sex worker is a reasonable and justifiable response to eliminating the HIV/AIDS problem because sex workers are a high-risk group. There is no rational relation between the response and the purpose. The high prevalence of HIV

occurs in the context of a criminalized industry. So, they seek to show that a) the problem is inherent in the industry and b) decriminalisation would increase the problem.

Under age sex work

14.40 It is not disputed that under age sex work is a harm that the State must protect against and it is common cause that there are children who are involved in the sex industry. The amici are opposed to all underage sex work and all forms of sexual exploitation of children.

Jacobs, Bundle B, p 15 16, para 7.

14.41 The State asserts that prostitution leads to a situation in which children may be lured into the sex industry and be forced to become prostitutes. This is alleged to be partly because of customer demand and brothel owners attempts to satisfy it.

154

De Vries, Bundle A, p 19, para 14.1.

14.42 In support of their contentions, the State refers to Jean Prieur du Plessiss affidavit. Du Plessis knowledge of the sex work industry comes inter alia from working in counselling, rehabilitation and church services. His

evidence is that younger children are not visible and can only be rented from mediators. He says (s)ome of the older prostitutes will act as

mediators (ie pimps) for underage girls that they live off it must never be forgotten that prostitution is a young persons industry. These pimps he says have an array of children on hand and can seemingly satisfy any need one may have.

Du Plessis, Record of Appeal, Vol II, p 176 178, para 8.

14.43 Du Prieur expresses the opinion that legalisation will without doubt cause child prostitution to increase and says that the child prostitute will disappear behind the closed doors of legal brothels. This is a matter of assumption and opinion.

14.44 The evidence adduced by the amici paints a different picture to that of the State regarding the role of adult sex workers. Rather than painting a picture of adult sex workers as the unscrupulous pimps of children, their

155 evidence is that many adult sex workers are very concerned about children entering the industry but feel powerless to intervene. This is

partly because of the criminal context in which sex work takes place in that co-operation from the industry in dealing with child sex work is difficult. We do not understand the State to have controverted this evidence.

Jacobs, Bundle B, p 16, para 7.1.3. De Vries, Bundle C, p 13, para 25.

14.45 The State relies on Schurinks evidence to support their contention that child prostitution is a tragic concomitant of the sex industry and a response by it to meet demand. Schurinks evidence does not support this contention. Rather, he supports the more accepted view that poor social conditions are the main cause of child prostitution.

Schurink, Bundle F, Vol 1, p 1646, para 43.

14.46 A difficulty with criminalisation is that child sex workers are ignored with no protections being made available to them. The State disputes that

removing the criminal sanction will lead to better protections.

Jacobs, Bundle B, p 16, para 7.1.2. De Vries, Bundle C, p 13, para 25.

156

14.47 The view that attempts to deal with under-age sex work would be better dealt with in a regulated rather than criminalized environment is expressed by the HSRC social worker, Van Wijk, in the court below. The HSRC,

together with the members of the sex work industry and Child Protection Unit have made attempts to eradicate certain manifestations of under-age sex work in Pretoria.

Schurink, Record of Appeal, Vol II, p 135, para 17. Van Wijk, Record of Appeal, Vol II, p 123, para 5, para 7.

14.48 The relationship between the criminality attached to adult sex work and the ability of the State to address the problem of under age sex work requires closer scrutiny.

14.49 On the States contention that removing the criminal sanction would aggravate the child sex work problem, we emphasise the submission that there would be greater co-operation from sex workers if they themselves were not targets of a criminal sanction. The States response to this

seems to be that sex workers must co-operate by coming forward on an anonymous basis. This is plainly unrealistic.

De Vries, Bundle C, p 29, para 66.1.

157

14.50 We also highlight the existence of other measures that are in place to assist the State in handling the problem. In particular, we refer to the Child Care Act 74 of 1983 (s 50A), section 14 of the Sexual Offences Act and the fact that the South African Law Commission is presently considering the issue.

14.51 Even if the State is found to have established that the criminal sanction attaching to the adult sex worker helps it in its fight against under age sex work, we submit that the limitation of the right is disproportionate to the purpose that it seeks to achieve and too restrictive a means. Instead of attempting to deal meaningfully with under-age sex workers, the section purports to wish away the problem by attaching a criminal sanction to adult sex work, and in the process, increases the stigma and vulnerability of adult sex workers. In this way it also casts the net too wide and

represents a means too restrictive of adult sex workers rights to justify any limitation.

The generation of related crimes

14.52 A further justification advanced by the State is the contention that related crimes (robbery, assault, bribery and corruption, drug trafficking, murder) proliferate in an environment fostered by prostitution.

158

De Vries, Bundle A, Vol 1, para 15.1. States submissions, para 23.

14.53 It is common cause that there is an association between sex work and other criminal activities. cause. The nature of the association is not common

Gardner, Bundle B, p 51 52, paras 58 62. De Vries, Bundle C, 29, para 66.

14.54 The State contends that it is sex work that fosters this association whereas we submit that this association is partly a consequence of the criminal sanction itself. Indeed, the State seems to accept our

contentions by stating in its answer that (t)he point is that prostitution acts as a magnet for other criminal activities, and that this will continue to be the case even if prostitution is decriminalised but seems to accept that there are sufficient laws to address associated criminality. This is different to the contention that in itself it fosters or generates crime.

De Vries, Bundle C, p 8 - 9, para 13.3.

159 14.55 The pattern of associated criminality exacerbated through the criminal sanction is revealed in the following way. Gangs, for example may force sex workers to pay protection money in an area. In part, because of bad relations with police and in part because of their vulnerability to the gangs, sex workers are unable to go to the police. Sex workers are similarly vulnerable to co-ercion by gangs to become involved in drug peddling. We submit that the criminal nature of the industry itself allows criminal elements to infiltrate it because of the unlikelihood of sex workers approaching the authorities. common sense. Again we submit that this is a matter of

Gardner, Bundle B, p 51, para 59 60. De Vries, Bundle C, p 29, para 66. Jacobs, Bundle B, p 7 8, para 4.2. De Vries, Bundle C, p 8 9, para 13.

14.56 We submit that removal of the criminal sanction on sex workers would allow sex workers to approach the police more freely and that sex workers are well situated to be the eyes and ears of police in trouble areas. The State has failed to controvert this and asserts merely that there are currently many prostitutes who act as police informers.

Jacobs, Bundle B, p 8, para 4.2.2.

160 De Vries, Bundle C, p 8 9, para 13.

14.57 Again, we emphasise that not all sex workers are involved in associated criminal activities or gangs. To attach a criminal sanction for this reason casts the net too wide and is misdirected by failing to deal with the real problems of organised crime, drugs and gangs. In this way it is too

restrictive and lacks proportion to the purpose sought to be achieved. It thus smacks of the approach that attracted this Courts sanction in S v Manamela 2000(3) SA 1 (CC) at 34 where it was stated that Section 36 . does not permit a sledgehammer to be used to crack a nut. Nor does it allow for means that are legitimate for one purpose to be used for another purpose where their employment would not be legitimate. The duty of a Court is to decide whether or not the Legislature has overreached itself in responding as it must, to matters of great social concern.

14.58 While it may make sense to attempt to curb an environment in which crime takes place, there is no rationality on visiting what amounts to a double punishment on the sex worker.

14.59 We associate ourselves with the appellants contentions regarding the States evidence at paragraphs 122 to 129 of their heads of argument.

Drug Use

161 14.60 The State contends that drug abuse is an inevitable concomitant of prostitution. This is a concern both because the State says sex workers use drugs themselves to mask their pain and because the State says sex workers are involved in the drug trade. Our submissions applying to

related crimes apply here as regards the latter concern.

States submissions, para 22.

14.61 We submit that not all sex workers use drugs. Some sex workers do but there are many who have been in the industry for a long time and who do not. We do not understand the State to controvert this. It is common cause that of those that do, some use it to cope with sex work.

Jacobs, Bundle B, p 7, para 4.1.

14.62 We submit that this can never justify the rights limitations caused by the impugned sections. The section cannot be said to serve the purpose of preventing drug use by sex workers and even if it does, the means is manifestly disproportionate to the ends and there are various less restrictive means available to achieve the ends that do not limit rights.

Public Nuisance

162 14.63 We accept that it is legitimate for the State to regulate public nuisance that is sometimes associated with sex work. However we submit that it is not constitutionally permissible to do so by prohibiting sex work and brothels altogether. The prohibitions are manifestly intrusive of rights and

comprise the most restrictive means to deal with any public nuisance, lacking proportion between means and ends. There are a range of other measures to deal with these problems. Indeed, various measures are already in place.

Businesses Act 71 of 1991 Municipal public nuisance regulations and bye-laws

14.64 The nuisances that the State refers to include the following: disturbance in residential areas, indecent exposure, alcohol abuse, noise, slamming of car doors, confrontations between prostitutes and residents and vulgar language. These constitute nuisances in themselves and should be treated with measures designed to deal with them. Not all sex work

involves nuisance. The conduct prohibited by the impugned sections do not in themselves inevitably or inherently involve nuisance.

States submissions, paras 24 and 25.

Trafficking in women

163

14.65

The State relies on its evidence that there has been a growth in the international trafficking of women associated with the globalisation of the sex industry involving abuse of vulnerable women of the third world for the benefit of brothel keepers in more affluent societies.

States submissions, para 17.

14.66

The State seems to view trafficking as something that occurs both within a states borders and across national borders. It includes in its reach what is better understood as migration of South African nationals within our own borders.

De Vries, Bundle A, Vol 1, p 16 17, para 13.3. Molo Songololo, Bundle A, p 251 305.

14.67

The United Nations Convention for the Suppression of the Traffic of Persons and of the Exploitation of Others 1949 does not define trafficking. It is however defined in the

Protocol to Prevent, Suppress and Punish Trafficking in Persons which supplements the UN Convention against

164 Transnational Organised Crime 2000 (adopted by the UN General Assembly in November 2000 and signed by South Africa in December 2000).

Smit, Bundle A, Vol 4, p 378, para 6.

14.68

These international documents demonstrate that to the extent that the Conventions deal with prostitution, they are aimed at dealing with trans-national movement of women. protocol applies to the prevention, investigation The and

prosecution of the offences established in Article 5. These offences are transnational in nature and involve organised crime groups as well as dealing with the protection of the victims of such offences.

Article 3(1) of the 2000 Convention (Smit, Bundle A, Vol 4, p 383).

14.69

Article 5 of the Protocol requires state parties to adopt such legislative and other measures it may be necessary to establish as criminal offences the conduct set out in article 3, which provides that:

165 trafficking in persons shall mean recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation. Exploitation shall include, at a minimum, the exploitation of prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs (Article 3(a)).

14.70

The protocol addresses the exploitation of the prostitution of others and other forms of sexual exploitation only in the context of the trafficking of persons.

14.71

It is not disputed that trafficking in women is an important public concern and that the State has a duty to take measures to combat it. submissions. However, we make the following

14.71.11 The State is under a duty to take measures that protect the victims of trafficking. Though criminal sanctions serve general deterrent purposes, it is difficult to see how these measures serve any protective purpose to the extent that they are punitive of the victim of trafficking. The nature of the

166 protective measures that are envisaged by the Protocol are in any event spelt out in detail in Chapter II and these measures do not include measures that are punitive of the person trafficked.

Smit, Bundle A, Vol 4, p 419 421.

14.71.12 A criminal prohibition on adult sex work is not a rational means to combat trafficking in women. At most it provides one way to punish a women who enters the country for the purposes of sex work. It is a matter of common sense that it cannot remove the demand that exists internationally for sex work services from women from other countries.

14.71.13 The State has adopted no comprehensive legislative and other measures targeted at trafficking in women and designed for that purpose. Section 20(1)(aA) is not designed for this purpose. Even if it can be said to bear any relation to this purpose, the relation between the limitation of the rights of adult sex workers generally and the purpose sought to be achieved is too remote and too restrictive of adult

167 sex workers rights generally to be constitutionally permissible. The absence of any legislative

measures that can properly be said to be designed to combat trafficking in women and targeting those responsible is conspicuous.

15.

SUSPENSION

15.1

The State has requested that in the event of declaring the impugned sections unconstitutional, the Court should suspend the declaration of invalidity for between 24 and 36 months. This is based on the need to introduce new laws regulating the industry.

15.2

In our submission, this would be neither just, equitable or practically necessary. This is so 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.

15.3

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 plethora of laws already in place. An order of striking down with immediate effect would do much to ameliorate the adverse

168 conditions presently affecting sex workers in the industry. We refer in particular to the Labour Relations Act, the Basic Conditions of Employment Act and the law of contract. The legal relationship dealt with in these laws cover the legal relationships that are de facto in place in both the outdoor and indoor industry.

Jacobs, Bundle B, p 10 12, paras 5.1 - 5.2. Delany, Bundle B, p 82, para 9.1.

15.4

Similarly an immediate order of invalidity would make sex workers eligible to obtain benefits under other legislation covering the employment sphere.

15.5

Moreover, if immediate effect is given to a declaration of invalidity, sex workers will from then on have greater de facto power to protect themselves generally, for example in the health, social services, financial, legal and police sectors. 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. Access to justice in the criminal courts or under the Domestic Violence Act 116 of 1998 will be more realistically achieved.

169 15.6 From the perspective of the interests of society, there is similarly legislation in place to deal with the harms that the State alleges it seeks to mitigate through the criminal prohibitions.

15.7

In relation to child prostitution and abduction, see section 50A of the Child Care Act 74 of 1983 and sections 9, 13 and 14 of the Sexual Offences Act and the provisions of section 28 of the Constitution.

15.8

In relation to the regulation of the business sector generally, see the Businesses Act 71 of 1991.

15.9

In relation to public nuisance, there are various municipal by-laws in place to regulate this.

15.10

It is our submission that it is inequitable, unjust and unnecessary for an order of invalidity to be suspended. In considering its order, the Court must, of course, avoid unnecessary dislocation and uncertainty in the criminal justice system. As this Court has noted, no one, not criminal defendants nor the judicial system, nor society as a whole is benefited by a judgment providing a man shall tentatively go to jail today but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved. This principle means that

170 generally an order of invalidity should have no effect on cases which have already been finalised prior to the date of the order of invalidity.

ORegan in S v Bhulwana, Gwadiso 1996 (1) SA 388 (CC) at para 32

15.12 In National Coalition for Gay and Lesbian Equality v Minister of Justice 1999(1) SA 6 (CC) at para 95, this Court considered, the retrospectivity of an order declaring a criminal offence invalid and distinguished the situation from the cases dealing with reverse onus provisions where unqualified retrospective operation of the invalidating provisions could cause severe dislocation to the administration of justice and be unfair to the prosecution who had relied in good faith on the evidentiary provisions. The possibility of numerous proceedings being

brought afresh and appeals arose.

15.13 By contrast this Court thought it manifestly and grossly unjust and inequitable that convictions should not be capable of being set aside if the offence of sodomy ceased to exist when the 1996 Constitution came into effect.

15.14 In that case the question arose whether, in accordance with the principle of objective constitutional invalidity, the order should be retrospective until 27 April 1994. This Court held that it should because there was no doubt

171 that it would have declared the common law offence of sodomy inconsistent with at least s 8 of the interim constitution had a constitutional challenge been brought under it. It held that (t)he chance fact that a constitutional challenge against the offence of sodomy was not brought under the interim Constitution should not deter us, in the circumstances of this case, from giving full retrospective effect, to 27 April 1994, to an order which justice and equity clearly require.

15.15 Finally, we submit that even if this Court is inclined to affording the State an opportunity to amend the legislation by suspending the order of invalidity for a period of time, the order should be suspended only in relation to section 2 and 3 of the Act. There is no reason why a

suspension order should be granted with respect to section 20(1)(aA).

G J Marcus SC S J Cowen

Counsel for SWEAT, CALS, RHRU Chambers Johannesburg and Cape Town 14 February 2002