These articles are taken from various news services and do not necessarily reflect DFL policy.
3 August, 2001 - Prostitution just steps away from legalisation
Sex workers are only a few steps away from having their industry legalised. The Pretoria High Court today ruled that prostitution should be decriminalised leaving it up to the Constitutional Court to certify the ruling.
The judgement followed an application by three sex workers challenging the constitutionality of their conviction by the Pretoria Magistrate's Court three years ago. After being fined R600 each, the sex workers decided to challenge the constitutionality of the charges.
In the groundbreaking ruling, two Pretoria High Court judges found that prostitution is legal, but that keeping a brothel is against the law. Judges T T Spoelstra and G Webster upheld the appeal by self confessed prostitute Christine Jacobs against her conviction on a charge that she had unlawful carnal intercourse with a man for reward.
However, an appeal by brothel owner Ellen Jordan and Louisa Brookdryk, a driver at the brothel, against their conviction on a charge of contravening section 2 of the Sexual Offences Act by keeping a brothel was dismissed.
Prostitution is not a common law offence
Judge Spoelstra in his ruling pointed out that prostitution is not a common law offence. He emphasised that Section 20 (1)(a) of the Sexual Offences Act stipulated that sexual intercourse between two unmarried persons of the opposite sex is only an offence if it is practised "for reward" by the female partner.
He said that it was difficult to comprehend why the latter elements should convert otherwise lawful carnal intercourse into an offence. "One is also at a loss to understand why only the recipient of the money is guilty of a crime whilst the party paying for the services is not. There is no moral or legal justification for these distinctions. It is obviously unjustified discrimination between not only sexes but also persons."
Spoelstra also referred to a Constitutional Court ruling, which declared the common law offence of sodomy to be inconsistent with the constitution and therefore invalid. "This conclusion was reached on the finding that the criminalisation of sodomy in private between adult consenting males unfairly breaches their rights to sexual orientation, equality, dignity and privacy. I do not find any reference in the judgement suggesting that if a male consents to sodomy for reward or some pecuniary benefit, such conduct falls outside the scope of the judgement.
"This being so, it cannot be contended that sexual relations conducted between a man and a woman in private constitutes criminal conduct merely because money changes hands. In this respect the provision is also discriminatory. The inevitable conclusion is that section 20 (1) (A) of the Act is inconsistent with the Constitution and is hence invalid," he said.
Addressing the argument that no activity involving prostitution could constitute an offence if prostitution is not criminal, the Judge said such a submission ignored the fact that the brothel owner and the brothel employee could not rely on the same considerations that are relevant when the rights of the prostitute as an individual are inquired into.
"When it becomes a business openly carried on in business or residential areas or the streets or in buildings, the rights of every other citizen and therefore the community are affected. The evidence placed before the court in this matter shows conclusively that the general public regard any form of prostitution with repugnance and disgust.
"All such individuals have the right to be free of the risk of being accosted on a street by a prostitute or pimp or of having to tolerate not only the disturbance of their peace of mind, their ethical or moral serenity, dignity and tranquillity, but also of being exposed to and having to endure all the by-products that accompany such business, such as disorderly, disgraceful or disgusting conduct,
drunkenness and drug abuse, to name but a few," he said.
Judge Spoelstra added that, in his view, "a third party managing a prostitute or prostitutes with their consent amounts to virtual trafficking in human beings. This is censured in most countries and in those where it is permitted, it is controlled and regulated by the governmental authorities."
DA welcomes the ruling
The Democratic Alliance (DA) welcomed the court ruling. Manny de Freitas, a Gauteng MPL in a statement responding to the ruling said, "I am heartened by this decision as this is the first step towards the legalisation and decriminalisation of prostitution." He added that once prostitution is legalised, areas such as Rosettenville in Johannesburg and Sea Point in Cape Town could be "cleaned up".
Relevant health officials will be able to co-operate with sex workers and the problem of sexually transmitted diseases, particularly HIV/Aids, would be more easily controlled. The DA would continue lobbying for a decision by the Constitutional Court rendering prostitution as a profession constitutional, De Freitas said.
Ruling embraced by Sweat
The sex workers' representative body Sweat, also embraced the ruling, and said is was a step in the right direction. Helen Alexander, legal advocacy co-ordinator for Sweat, said prostitution is a reality and everybody has to learn to live with it.
However, not everyone agreed with Sweat and the DA. The United Christian Action said that 70% of sex workers are prone to suicide and therefore the industry should not be legalised.
The Ministry of Justice and Constitutional Development had not expressed its views over the judgement, but said in a statement said that it would study the judgement as soon as it received it and would only comment on the issue at that point. - Sapa
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