O’REGAN J and SACHS J
from the third appellant, a prostitute or sex worker.1 The three appellants admitted in the
Magistrate’s Court that they had contravened the Sexual Offences Act 23 of 1957, which
criminalises providing sex for reward and brothel-keeping, but claimed that the relevant
provisions of the Act were unconstitutional and should be declared invalid.
Since the
Magistrate’s Court has no power to declare statutes unconstitutional, they did not resist
conviction in that court. After being found guilty and sentenced by the magistrate, they appealed
to the Pretoria High Court to have the provisions set aside. In a judgment handed down on 2
August 2001,2 the High Court held that section 20(1)(aA) of the Act, which penalised sex for
reward, was unconstitutional. That section reads:
“20.
Persons living on earnings of prostitution or committing or assisting in
commission of indecent acts. –
(1)
Any person who –
....
(aA)
has unlawful carnal intercourse, or commits an act of
indecency, with any other person for reward;
....
shall be guilty of an offence.”
[35]
The High Court went on to hold that sections 2, 3(b) and 3(c) of the Act (the brothel
provisions) which covered brothel-keeping were not unconstitutional. These provisions read:
1
In this judgment, we use both “prostitute” and “sex worker”. There is a debate in the literature about the
proper terminology. (See, for example, J G Raymond “Prostitution as Violence Against Women: NGO
Stonewalling in Beijing and Elsewhere” (1998) 21(1) Women’s Studies International Forum 1; and E
Bernstein “What’s Wrong with Prostitution? What’s Right with Sex Work? Comparing Markets in Female
Sexual Labor” (1999) 10 Hastings Women’s Law Journal 91). It has been argued that the word “prostitute”
has degrading connotations and that the term “sex worker” should be employed to avoid them. We have
chosen to avoid privileging one term over another.
2
Reported as S v Jordan and Others 2002 (1) SA 797 (T); 2001 (10) BCLR 1055 (T); 2002 (1) SACR 17
(T).
17
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