O’REGAN J and SACHS J
purview of s 26(2) will be in breach of s 26.”
[55]
The Court thus expressly left open the question whether this right could be claimed only
in respect of lawful economic activity. For the purposes of the present matter, we do not
consider it necessary to resolve that question. On the first meaning, given that prostitution is
clearly an unlawful economic activity, the appellants could not succeed. Once again, as in
Lawrence, we are prepared to assume in favour of the appellants that the second meaning which
confers a broader right is the proper meaning of section 26. On that approach, the state is not
precluded from taking measures under section 26(2) of the Constitution “designed to promote the
protection or the improvement of the quality of life”. The only proviso is that such measures be
justifiable in an open and democratic society based on freedom and equality. In determining
whether a particular measure is “designed to promote” one of the purposes of section 26(2),
leeway must be afforded the Legislature to determine which measures will achieve the desired
purposes.
[56]
The state argued that section 20(1)(aA) is aimed at improving the quality of life. In our
view, whether one considers that prostitution should be tolerated, regulated or prohibited, there
can be no doubt that it does have an impact on the quality of life. The Legislature is therefore
entitled to take the steps it considers appropriate to regulate prostitution in terms of section 26(2)
so long as it does not limit other fundamental rights in a way that would not be justifiable in an
open and democratic society. As we shall see later, open and democratic societies adopt a
variety of different ways of responding to prostitution, including outright prohibition.18 The
18
See paras 90-91 below.
32
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