n Tydskrif vir die Suid-Afrikaanse Reg - Sin and : some comments on the case : regspraak

Volume 2003, Issue 3
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



(2002 6 SA 642 (CC)) dealt with the constitutionality of the prohibition of prostitution and brothel keeping, in particular, the constitutionality of sections 2, 3(b) and (c) and 20(1)(aA) of the Sexual Offences Act 23 of 1957. The case came before the constitutional court as an appeal against a high court judgment ( 2002 1 SA 797 (T)). In the high court the prohibition of prostitution was held to be unconstitutional, but the prohibition of brothel keeping was not found to be unconstitutional (803F). In the constitutional court, the majority decision found that the relevant provisions did not discriminate unfairly against women as prohibited by section 8(2) of the interim constitution (Constitution of the Republic of South Africa 200 of 1993), nor did it infringe on the right to economic activity in section 26 or the right to privacy in section 13. The minority judgment found the prohibition of prostitution to be unconstitutional (par 71), but the prohibition of brothel keeping was found to be constitutional (par 120). Some aspects of the majority judgment in particular are exceedingly strange, such as the application of section 18 of the Riotous Assemblies Act 17 of 1956 to justify the viewpoint that customers of a prostitute can also be prosecuted (par 11), although they usually are not. But that, and other "technical" questions, will not be the focus of this note.

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