sexual health and human rights in the african region - The ICHRP

African Sexual Offences Act of 1957 (as amended), 881 were challenging the
validity of the Act under the Constitution. Section 20(1)(aA) makes it an offence
for any person who has sex for reward. Sections 2 and 3 of the Act render brothel
keeping an offence. They had appealed to the High Court and partially
succeeded. It had been held by the High Court that the section which
criminalised sex for reward was unconstitutional but not the section that
criminalised keeping a brothel. 882 High Court’s reasons were: that section 20 of
the Act constituted unfair discrimination to the extent that it made a distinction
between the person seeking commercial sex and the person providing
commercial sex (customer and merchants distinction); that section 20 was also
discriminatory to the extent that it made a distinction between a person who
received money for sex and another who received a benefit in kind such as a paid
holiday; that criminalising brothel keeping was a legitimate response to the
commercial exploitation of ‘prostitutes’ and trafficking of human beings. The
matter was brought before the Constitutional Court in part to seek confirmation
of the declaration of invalidity of a section of an Act, and in part as an appeal
against a conviction under the brothel provisions. The case proceeded on the
basis that the relevant constitution was the Interim Constitution rather than the
Final Constitution. 883
[10] The main issue was whether section 2, 3 and 20(1)(Aa) of the Sexual Offences Act
were a violation of the right to: equality; 884 human dignity; 885 freedom and
security of the person; 886 privacy; 887 and economic activity, 888 and thus
unconstitutional.
[11] The Constitutional Court held by a majority of 6 to 5 that the provisions of the
Sexual Offences Act in issue did not violate the rights to equality, human dignity,
freedom and security of the person, privacy and economic activity and that the
appeal must fail.
[12] In terms of the reasoning, the majority of the Court said that impugned sections
did not discriminate on the grounds of gender/sex as both male prostitutes and
female prostitutes were within the mischief that the Act sought to suppress. The
Act did not amount to indirect discrimination as it is legitimate to strike at the
881 Act No 23.
882 S v Jordan and Others 2002 (1) SA 797 (High Court of South Africa).
883 It is important that this had a bearing only in determining the relevant Constitution when the facts of
the case arose and that there are no substantive differences between the Interim Constitution and the
Final Constitution in terms of the constitutional provisions that were in issue.
884 Section 8 of the Interim Constitution.
885 Section 10 of the Interim Constitution.
886 Section 11 of the Interim Constitution.
887 Section 13 of the Interim Constitution.
888 Section 26(1) and (2) of the Interim Constitution.
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