O’REGAN J and SACHS J
“Privacy recognises that we all have a right to a sphere of private intimacy and autonomy
which allows us to establish and nurture human relationships without interference from
the outside community. The way in which we give expression to our sexuality is at the
core of this area of private intimacy. If, in expressing our sexuality, we act consensually
and without harming one another, invasion of that precinct will be a breach of our
privacy.”38
[77]
Counsel for the appellants argued that prostitutes are not blocks of wood without rights,
incapable of taking meaningful decisions about deeply personal and intimate aspects of their life.
The fact that their work is commercial does not exclude it from the scope of the right to privacy.
It was argued that as conduct becomes more public so it becomes increasingly intrusive and
offensive as far as others were concerned, but prostitution, insofar as it takes place outside of the
public gaze, engages privacy. Counsel for the amici supported these contentions, arguing that
even if the sexual activity is done purely for commercial reasons, this should not take it outside
the realm of privacy. The commercial aspect might remove it from the inner core of privacy and
make it easier to justify prohibition, but does not remove it from the scope of privacy altogether.
So, it was argued, the fact that you pay a doctor or psychiatrist does not denude your
relationship with him or her of its privacy interest. Even if the expression of sexuality is
loveless, it is still very personal. The intrusion on two people engaging in sex is qualitatively
different from the search and seizure of documents, he said, but at least as worthy of requiring
38
National Coalition for Gay and Lesbian Equality and Another v The Minister of Justice and Others 1999
(1) SA 6 (CC); 1998 (12) BCLR (CC) at para 32.
50
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