NGCOBO J
[28]
This case is concerned with the commercial exploitation of sex, which as I have found,
involves neither an infringement of dignity nor unfair discrimination. I do not accept that a
person who commits a crime in private, the nature of which can only be committed in private,
can necessarily claim the protection of the privacy clause. What compounds the difficulty is that
the prostitute invites the public generally to come and engage in unlawful conduct in private.
The law should be as concerned with crimes that are committed in private as it is with crimes
that are committed in public.
[29]
But even if the right to privacy is implicated, it lies at the periphery and not at its inner
core. What lies at the heart of the prostitutes’ complaint is that they are prohibited from selling
their sexual services. After all, they are in this industry solely for money. The prohibition is
directed solely at the sale of sexual activity. Otherwise the prostitutes are entitled to engage in
sex, to use their bodies in any manner whatsoever and to engage in any trade as long as this does
not involve the sale of sex and breaking a law validly made. What is limited is the commercial
interests of the prostitute. But that limitation is not absolute. They may pursue their commercial
interests but not in a manner that involves the sale of sex. Having regard to the legitimate state
interest in proscribing prostitution and brothel keeping, viewed against the scope of the limitation
on the right of the prostitute and brothel keeper to earn a living, I conclude that if there be a
limitation of the right to privacy, the limitation is justified. It follows that the challenge based on
the right to privacy must also be dismissed.
Conclusion
14
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