In a groundbreaking ruling, two Pretoria High Court Judges on Thursday ruled that prostitution was legal, but that keeping a brothel was still against the law.
Judges TT Spoelstra and G Webster upheld an appeal by self-confessed prostitute Christine Jacobs against her conviction on a charge that she had unlawful carnal intercourse with a man for reward.
But 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.
Judge Spoelstra pointed out in his ruling that prostitution was not a common-law offence. Section 20 (1)(a) of the Sexual Offences Act stipulated that sexual intercourse between two persons of the opposite sex who were not married was an offence only if it was practised "for reward" by the female partner.
He said why the latter elements should convert otherwise lawful carnal intercourse into an offence, was difficult to comprehend.
"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."
He 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 judgment suggesting that if a male consents to sodomy for reward or some pecuniary benefit, such conduct falls outside the scope of the judgment. 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)(aA) of the Act is inconsistent with the Constitution and is hence invalid," he said.
To the argument that if prostitution was not criminal, then no activity involving prostitution could constitute an offence, 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 were relevant when the rights of the prostitute as an individual were 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.
"In my 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," Judge Spoelstra added. - Sapa