O’REGAN J and SACHS J
prostitution as such would not be illegal but life for the prostitute would be extremely difficult,
as soliciting, pimping and brothel-keeping would continue to be prohibited by the Act.
[126] In our view, the central consideration in determining what is just and equitable in relation
to a possible order suspending invalidity, is what would best promote the achievement of
equality between men and women. In this respect, we have to bear in mind that the whole
question of how to deal with prostitution in our society is a complex one that defies simplistic
solutions. Accordingly, we feel that justice and equity would best be served by giving
Parliament a fair opportunity to undertake a comprehensive review of the matter, producing a
balanced and well thought-through approach to the manner in which commercial sex can and
should best be regulated in contemporary South Africa, bearing in mind the principles of equality
that run through our Constitution.
[127] The importance of locating changes to the law in such a broad context is well brought out
in the report produced by the Canadian Commission into Pornography and Prostitution.76
Having made an extensive comparative survey the Commission points out that the law by itself
enjoys no special claim to be a solution to prostitution within society.
“Indeed, it seems that those countries, the majority, which have ignored the importance
of non-legal, social responses to prostitution have experienced less success in controlling
prostitution than those . . . which have recognised the value of social strategies in
changing attitudes and responding to the human problems associated with prostitution.”77
76
Above n 53.
77
Id at 507.
84
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