Recent Case: Specific crimes

• Jurisdiction: South Africa
• Citation: (2002) 15 SACJ 122
• Pages: 122-126
• Published date: 24 May 2019
• Author: Ronald Louw
• Date: 24 May 2019

RECENT CASES • VONNISSE

Specific Crimes

RONALD LOUW

University of Natal, Durban

Prostitution

In

S v Jordan

2002 (1) SACR 17

co

three appellants appealed against their

convictions in terms of the Sexual Offences Act 1957. The first appellant had

been convicted of keeping a brothel, defined in the Act as 'any house or

place kept or used for purposes of prostitution or for persons to visit for the

purpose of having unlawful carnal intercourse or for any other lewd or

indecent purpose' (at 20a). The second appellant had also been convicted of

keeping a brothel. Even though she was only a driver and receptionist, the

Act deems certain persons working at a brothel to be keeping a brothel. The

third appellant was a prostitute and had been convicted of having performed

an indecent act for reward. All three appealed against their convictions on the

ground that the relevant provisions of the Act were unconstitutional. They

argued that the Act violated their rights of `liberty, privacy, gender equality,

security of the individual, and the right to engage freely in economic activity

and to pursue a livelihood; and to equality before the law as well as the right

to exercise the above rights in a safe well-managed environment' (at 20d-e).

They argued further that the provisions of the Act were based on an ethos

and morality that were incompatible with the principles of the Bill of Rights.

Section 20(1)(aA) is a recent (1988) statutory amendment criminalsing

prostitution. It prohibits acts of unlawful carnal intercourse or acts of

indecency for reward. None of the terms is defined. Only the acts of the

prostitutes are criminalised, however, and not those of their customers. The

term prostitute is not used in the Act. Milton and Cowling are of the opinion

that the wording of the provision is sufficiently broad to encompass anyone

who accepts a reward for sexual intercourse such as a spouse or a lover or a

companion. However, they argue that there is little doubt that the provision

is aimed at professional prostitutes and therefore the provision should be

strictly construed. Only those who habitually and indiscriminately engage in

sexual relations for reward should be punished

(South African Criminal Law

& Procedure

vol 3 2nd ed at E3-47). Spoelstra J in this case (at 21f-g) also

122

(2002) 15 SACJ 122

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