NGCOBO J
20(1)(aA). In the event, we had the benefit of full argument on the other challenges to section
20(1)(aA). In these circumstances it is in the interests of justice that this Court consider the other
challenges to section 20(1)(aA). Accordingly I proceed to consider them.
Challenge based on the right to economic activity
[23]
At best for the appellants, section 26(1) and (2) of the interim Constitution must be read
together as meaning that all constraints upon economic activity and the earning of a livelihood
that fall outside the purview of subsection (2) are in breach of section 26. All that subsection (2)
requires is that there should be a rational connection between the legislation and the legislative
purpose sanctioned by subsection (2). Once it is established that the purpose of the prohibition is
sanctioned by subsection (2), the question whether the purpose is justifiable in an open and
democratic society based on freedom and equality is essentially a question of law.
[24]
The state contended that the legislation was “designed” to promote the protection or
improvement of the quality of life and human development, and as such is sanctioned by section
26. Prostitution is associated with violence, drug abuse and child trafficking. These are the
legislative facts.
[25]
The legislature has the responsibility to combat social ills and where appropriate to use
criminal sanctions. In doing so, it must act consistently with the Constitution. Once the
legislature has done so, courts must give effect to that legislative choice and may not enter into
the debate as to whether the choice made is better or worse than others not chosen. It was
accepted that the options available to the legislature in combatting the social ills associated with
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