10 October 2002
The Constitutional Court has ruled that prostitution and running brothels are still illegal. The ruling, made on Wednesday, dashed the hopes of brothel owner Ellen Jordan, who spent millions of rands in her court bids to get the laws thrown out.
When Jordan, one of her employees and a sex worker were arrested for contravening the Sexual Offences Act of 1957 in 1996, Jordan took the case to the High Court. The High Court found firstly that sections of the law that render sex for money a crime were unconstitutional, and secondly that the legislation outlawing the managing of brothels should be upheld.
Jordan took the rulings to the Constitutional Court to have the first one confirmed and the second overturned.
However, the Constitutional Court upheld both rulings, the first outlawing prostitution, the second outlawing and brothel-keeping. The Court found that outlawing prostitution did not infringe on the rights to human dignity and economic activity.
Judges in the Court were however divided over whether the ban on prostitution amounts to gender discrimination or not.
Sexual double standards
One judge, Sandile Ngcobo, arguing the majority position, said that the ban did not discriminate against women in particular, since both male and female prostitution is illegal.
However, judges Kate O’Regan and Albie Sachs argued that by making the prostitute the main offender and the client the accomplice, the law “reinforces sexual double standards and perpetuates gender stereotypes in a manner impermissible in a society committed to advancing gender equality’, according to a Constitutional Court summary of the judgement.
There were mixed reactions to the judgement, with some arguing that the ruling would consolidate efforts to close down brothels, and others maintaining that the ruling would not curb prostitution but would simply send it further underground, rendering any attempts to regulate the industry and improve the health and safety of sex workers more difficult.
According to the Star newspaper, National Director of Public Prosecutions Bulelani Ngcuka was pleased with the judgement and warned brothels to “Close down, or we will do it for you’.
Spread of HIV/Aids
Doctors for Life International, called by the state as a witness, argued that prostitution “encouraged international trafficking in women, led to child prostitution, intensified the spread of sexually transmitted diseases, especially HIV/Aids, and was often accompanied by a high degree of drug abuse’, The Star reported.
However, some have cautioned that the ruling will send the industry even further underground, without curbing it at all. The director of the Reproductive Health Research Unit, Helen Rees, said that the ruling would make it difficult to help protect sex workers against risks like HIV/Aids. “How to you access (sex workers) when you criminalise them?’ she asked.
The Commission on Gender Equality also expressed disappointment over the judgement.