O’REGAN J and SACHS J
incorrect and suggested that the section bore an extended meaning which included customers
within the criminal prohibition. The question then is whether the High Court’s interpretation of
the section is correct. In particular, we must decide whether it was correct in concluding that the
provision criminalised only the prostitute and not the client, and that it criminalised any nonmarital sexual intercourse, where one party gives another party a present or benefit that could be
construed as “for reward” in the context of the section and not only commercial sex. In
considering whether the High Court’s interpretation is correct, the question that we must
consider is whether there is a constitutionally compatible interpretation of the section. Such an
interpretation should not be unduly strained, but must be one which the provision is reasonably
capable of bearing.8
[41]
It has generally been accepted in our law that section 20(1)(aA) criminalises only the
conduct of the prostitute and not that of the client. So Burchell and Milton state:
8
See Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty)
Ltd and Others 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) at paras 21-6.
22
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