REPUBLIC OF SOUTH AFRICA COMBINED SECOND PERIODIC REPORT UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLE`S RIGHTS and INITIAL REPORT UNDER THE PROTOCOL TO THE AFRICAN CHARTER ON THE RIGHTS OF WOMEN IN AFRICA Adult Prostitution 82. Adult prostitution305 is a highly contested issue in which societal opinions are often highly polarized. In this regard, the perspective ranges from the constitutional protection of human rights and human dignity to that of enforcing particular moral or religious values. 83. The existing legal position in South Africa regarding prostitution is that it is totally criminalized or prohibited through the Sexual Offences Act, 1957306 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.307 Municipal by-laws apply both to prostitution in brothels and prostitution conducted from the street. 84. The challenge lies in establishing whether the current legal position on adult prostitution violates the rights of sex workers in light of the context of a Constitution committed to advancing human rights, social justice and human dignity. Another challenge is that the current legal framework on prostitution and sex work often results in criminalization against the seller (most often women) and impunity for buyers (most often men). 85. In S v Jordan308 the majority of the Court rejected arguments that a law that criminalised sex work but left the clients unpunished, unfairly discriminated against women. The appellants in this case, a brothel-owner, a brothel employee and a prostitute or sex worker, were convicted in the Magistrates’ Court of contravening the Sexual Offences Act, 1957.309 They appealed to the High Court, arguing that the relevant provisions were unconstitutional. The High Court found that the section of the Act which criminalises carnal intercourse for reward (the prostitution provision) was unconstitutional, but dismissed the appeal in respect of the sections of the Act which criminalise keeping or managing a brothel (the brothel provisions). The appellants then appealed to the Constitutional Court, arguing that the brothel provisions should be found to be unconstitutional. They also argued that the High Court order invalidating the prostitution provision should be confirmed. The state opposed the appeal on the brothel provisions and also opposed confirmation of the order invalidating the prostitution provision. 86. The Constitutional Court unanimously upholds the High Court’s finding that the brothel provisions were valid, but was divided (six to five) on the prostitution provision. The judgments have been written Ngcobo J for the majority and by O’Regan and Sachs JJ for the minority. Both judgments make it clear that the decision as to how to regulate prostitution is a matter primarily for the Legislature. Open and democratic societies around the world have chosen from a wide range of options to regulate prostitution. It is for Parliament, within the constraints of the Constitution, to decide which of these options suits South Africa best. 305 Prostitution and sex work are, strictly speaking, not the same concept. Prostitution is viewed as coerced sex work where women have no choice in the matter and is necessarily demeaning and women are victims. Sex work, on the other hand, allows for women’s decision making power in capitalist thinking on issues of prostitution. (Commission for Gender Equality, “Decriminalising Sex Work in South Africa”, 2013) 306 Act No. 23 of 1957 307 Act No. 32 of 2007 308 2002 (6) SA 642 309 Act No. 23 of 1957 160