O’REGAN J and SACHS J
and not the customer, this would be a case of indirect discrimination because overwhelmingly
prostitutes were women and customers men. There was thus no factual dispute between the
parties as to whether the effect of the provision fell disproportionately on women. Prostitutes
and their customers engage in sexual activity, which is one of the constitutive elements of the
relationship between men and women in all societies. As partners in sexual intercourse, they
both consent to and participate in the action which lies at the heart of the criminal prohibition.
There are only three differences between them. The first is that the one pays and the other is
paid. The second is that in general the one is female and the other is male. The third is that the
one’s actions are rendered criminal by section 20(1)(aA) but the other’s actions are not.
Moreover, the effect of making the prostitute the primary offender directly reinforces a pattern of
sexual stereotyping which is itself in conflict with the principle of gender equality. The
differential impact between prostitute and client is therefore directly linked to a pattern of gender
disadvantage which our Constitution is committed to eradicating. In all these circumstances, we
are satisfied that, as in Walker’s case, this is a case where an apparently neutral differentiating
criterion producing a markedly differential impact on a listed ground results in indirect
discrimination on that ground.
[61]
Before proceeding further, it should be noted that it was suggested that even if the
provisions of section 20(1)(aA) did not criminalise the conduct of customers, that conduct could
be considered criminal in terms of two other legal provisions. First, the common law provisions
relating to accessories would criminalise their conduct; and secondly, the provisions of the
Riotous Assemblies Act 17 of 1956 could permit the prosecution of the customer. If the conduct
of the client were criminalised through either of these techniques, it was submitted this would
37
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