NGCOBO J
[30]
Much of the argument in this case, and of the evidence placed before this Court, was
directed to the question whether the interests of society would be better served by legalising
prostitution than by prohibiting it. In a democracy those are decisions that must be taken by the
legislature and the government of the day, and not by courts. Courts are concerned with legality,
and in dealing with this matter I have had regard only to the constitutionality of the legislation
and not to its desirability. Nothing in this judgment should be understood as expressing any
opinion on that issue.
[31]
I agree with O’Regan and Sachs JJ that the appeal against the finding made by the High
Court concerning brothels should be dismissed. However, I conclude that section 20(1)(aA) is
not unconstitutional. In view of the fact that I also agree with the conclusion reached by my
colleagues, that section 20(1)(aA) does not violate the right to privacy, freedom and security, and
the right to economic activity, it follows that I not only dismiss the appeal, but also decline to
confirm the order of invalidity made concerning section 20(1)(aA).
Order
[32]
It now remains to consider what the appropriate order should be. The orders made by the
High Court were made conditional upon the confirmation of the order of unconstitutionality
made by the High Court. As I hold that the impugned provisions are not unconstitutional and
therefore decline to confirm the order of unconstitutionality, it follows that the order made by the
High Court upholding the appeal by the third appellant cannot stand. In the High Court, and
indeed in the Magistrates’ Court, the appellants did not dispute the fact that they had contravened
the impugned provisions. They only challenged the constitutionality of these provisions. Nor
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