By Fienie Grobler
The State had no right to judge a prostitute's sex life as it was an infringement of the rights to privacy, dignity, freedom and security, the Constitutional Court heard on Tuesday.
The court was hearing argument on the validity of sections of the Sexual Offences Act relating to prostitution.
The case related to a Pretoria High Court judgment in August last year that a section of the Sexual Offences Act dealing with sex for reward was unconstitutional, while provisions dealing with brothel-keeping were not.
Massage parlour owner Ellen Jordan and two of her employees, asked the High Court to refer the question of the legislation's constitutionality - once known as the Immorality Act - to the Constitutional Court for adjudication.
The national and provincial directors of public prosecution opposed both the requested confirmation and the appeal.
Jordan's counsel, Professor David Unterhalter, SC, told the court on Tuesday that the State was in no position to judge a person's conduct.
"The State has no legitimate interest in the reasons why people engage in sexual activity," he said.
He argued that prostitutes had the right to choose what they wanted to do with their lives. He said their sexual conduct, although a commercial act, remained a personal and intimate experience.
Judge President Arthur Chaskalson told Unterhalter that, according to the papers before the court, prostitution was not a form of sexual expression.
"It's a way of earning a living," Chaskalson said.
Unterhalter replied that it was "highly artificial" to state that prostitutes' conduct did not form part of sexual expression.
Judge Johann Kriegler said: "She (a prostitute) makes facilities available... how can this be expression on the part of the object?"
Unterhalter said one could not view a prostitute as a "block of wood without any rights".
"At the end of the day there is a person who gives her body over... something deeply personal, deeply intimate," he said.
Unterhalter also argued that there was no evidence that the criminalisation of prostitution eliminated the social ills associated with it.
"And there is no evidence that its decriminalisation would make it worse."
He said if it was legalised, brothels would be needed to protect prostitutes.
"The most dangerous place for a prostitute is outside a brothel where there is no security, no protection."
Rudolph Jansen, also representing Jordan, said there appeared to be a high level of tolerance for prostitution and brothels among the police.
"One can't prohibit something and then turn a blind eye," Jansen said.
Advocate Wim Trengove, SC, for the State, told the court it should use its "common sense" to decide whether there was a reasonable or rational basis for the High Court judgment.
He said the State supported the prohibition of prostitution because it would enable authorities to limit the volume of prostitution. It would also help depress the social ills associated with prostitution.
Section 20 (1)(a) of the Sexual Offences Act states that sexual intercourse between two persons of the opposite sex who are not married is an offence only if it is practised "for reward" by a person.
The Pretoria High Court judge at the time of the ruling said in his judgment: "One is... at a loss to understand why the recipient of the money is guilty of a crime whilst the party paying for services is not".
Trengove, however, said the language of this section was open to the interpretation that both parties were criminally liable.
"The section indicates that all players in the industry should be punished," Trengove said.
Unterhalter disagreed, saying that a reasonable interpretation of the Act would be that it exonerated the paying client of criminal liability.
Unterhalter submitted that the client was not an accomplice but a "co-participant" who was "intrinsic to the definition of the offence".
Trengove also argued that the right to privacy and dignity was applicable to personal and not commercial interests.
If a woman was paid for sex, only her commercial interest had been invaded, he said.
"People have the freedom to make intensely personal and private choices. Sex (for money) does not lie in that intimate sphere where choices are protected," he said.
Jordan said that she was satisfied with the day's proceedings.
A number of parties, including the Commission for Gender Equality, have been permitted to make oral and written representations in support of the confirmation and the appeal.
The hearing will continue on Wednesday. - Sapa