Sex Worker Education and Advocacy Task Force v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Fourie J
• Judgment Date: 20 April 2009
• Docket Number: 3378/07
• Hearing Date: 05 March 2009
• Counsel: W Trengove SC (with E Fagan SC and A du Toit) for the applicant. I Jamie SC (with R Nyman) for the first to seventh respondents. A Schippers SC (with P Farlam) for the eighth respondent.
• Court: Western Cape High Court, Cape Town

Fourie J:

Introduction

[1] Applicant is a non-profit organisation registered as such in terms of F Act 71 of 1997, which seeks to promote the health and human rights of sex workers. It has approached the Court for relief aimed at preventing the alleged continued unlawful and wrongful arrest of sex workers by members of the South African Police Service (the SAPS) in the Cape Metropolitan area and members of the Cape Town City Police (the City Police) in the area of jurisdiction of eighth respondent. The sex workers G concerned are predominantly outdoor sex workers rather than ones who ply their trade indoors.

[2] Applicant has the necessary standing to bring this application in terms of the provisions of s 38 of the Constitution of the Republic of H South Africa, 1996 (the Constitution). It seeks an order:

'1.

Declaring that no member of the South African Police Service in the Cape Metropolitan area and no member of the Cape Town City Police is entitled to arrest sex workers for an ulterior purpose.

2.

Interdicting and restraining all members of the South African Police Service in the Cape Metropolitan area and of the Cape I Town City Police from:

2.1

unlawfully arresting sex workers;

2.2

in particular, arresting sex workers only to harass, punish or intimidate them or for any other ulterior purpose not sanctioned by law.

3.

Directing the first, second, third, fourth, fifth, sixth and seventh J respondents to take all steps reasonably necessary, within their

Fourie J

respective areas of responsibility and authority, to prevent members A of the South African Police Service in the Cape Metropolitan area and of the Cape Town City Police from unlawfully arresting sex workers, in particular by arresting them only to harass, punish or intimidate them or for any other ulterior purpose, not sanctioned by law.'

[3] Applicant contends that it is entitled to this relief on two distinct B causes of action. Firstly, that sex workers are often arrested in violation of the principle of legality and, secondly, that members of the SAPS and the City Police routinely use the powers of arrest conferred by the Criminal Procedure Act 51 of 1977 (the CPA) to arrest sex workers for the ulterior purpose of harassing them, rather than for the lawful purpose C of having them prosecuted. It seems to me that the 'ulterior purpose' cause of action may, strictly speaking, also be described as a breach of the principle of legality, as the power of arrest is allegedly used for a purpose not authorised by the CPA. See the remarks of Harms DP in National Director of Public Prosecutions v Zuma 2009 (1) SACR 361 (SCA) (2009 (2) SA 277) at 378c - 379e (paras 37 and 38). However, for the sake of D convenience, I will continue to use the 'ulterior purpose' label given to it by applicant.

[4] Respondents oppose the application and it is clear from the affidavits filed by the parties that there are material disputes of fact. As no E application was made for the referral of the matter to oral evidence, applicant would only be entitled to the relief sought if the facts as stated by respondents, together with the admitted facts in applicant's affidavits, justify such an order, or when it is clear that the facts, though not formally admitted, cannot be denied and must be regarded as admitted. F See Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E - G. In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H - I, Corbett JA held that in certain cases the denial by a respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact. If, in such a case, the respondent has not applied for the deponents G concerned to be called for cross-examination, and the court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness of that averment and include same among those upon which it determines whether the applicant is entitled to the final relief it seeks. H

Factual background

[5] The founding papers contain wide-ranging allegations from or about sex workers, as well as 13 confirmatory affidavits from current or former sex workers. These include details of alleged mistreatment or other I inappropriate behaviour by the SAPS and the City Police, all of which have been denied by the relevant respondents. In its replying affidavit, however, applicant has adopted the attitude that it seeks relief from the court only on a matter of principle, in regard to which, applicant contends, there is, on a proper analysis of respondents' answering affidavits, no real factual dispute. The matter of principle, is whether it J

Fourie J

A is lawful for members of the SAPS and the City Police to arrest and detain sex workers in circumstances where they know with a high degree of probability that no prosecution will result. Applicant contends that the details of the arrests of individual sex workers, as well as the allegations by particular sex workers of mistreatment or other inappropriate behaviour by the SAPS or the City Police, play no role in the determination of B this point of principle. It maintains that the SAPS and the City Police know very well that sex workers are virtually as a matter of course not prosecuted after having been arrested. This, says applicant, is not seriously in issue, as the SAPS and the City Police effectively acknowledge that this is the position.

C [6] It will be immediately apparent that the factual basis for the relief sought, as articulated by applicant in reply, is far more restricted than that relied upon in the founding affidavit. As alluded to hereinbefore, the issue for determination on this restricted basis, is whether the sex workers are arrested in circumstances where the arresting officers know D with a high degree of probability that no prosecution will result and, if so, whether this renders the arrests unlawful.

[7] A reading of the affidavits filed on behalf of respondents, in my view, justifies the conclusion that respondents do not seriously dispute that the sex workers are arrested in circumstances where the arrestors know with E a high degree of probability that the arrestees will not be prosecuted. A brief analysis of respondents' allegations in this regard will suffice.

[8] In his affidavit, Mr Cloete, the SAPS senior legal officer in the Western Cape, who deposed to an affidavit on behalf of the first, second and third respondents, claims to have no knowledge as to whether sex F workers are seldom prosecuted in court following their arrest. However, later on in his affidavit, he admits that it emerges clearly from the statements made by arresting officers to sex workers, that members of the SAPS are aware that sex workers are virtually as a matter of course not prosecuted. He adds that during the period 2000 to 2005 he had G numerous discussions with the senior public prosecutors in the Western Cape, concerning 'the failure by the prosecutors to prosecute regarding prostitution-related cases'. This appears to have been in response to complaints from certain station commissioners that 'they would arrest sex workers the one day and they would not be prosecuted'. They apparently referred to this process as the 'revolving door' scenario where H there are no consequences for the unlawful conduct of sex workers after an arrest.

[9] The SAPS station commissioners, ie fourth to seventh respondents, also claim that they have no knowledge as to whether sex workers are I seldom brought to court following arrest. However, since police officers under their command effected the arrests of the sex workers described in the founding papers, it is inconceivable that they would not know in general terms what happens to the sex workers so arrested. If the station commissioners believed the true position to be other than as stated in the founding papers, they would no doubt have denied the allegations in this J regard and produced evidence to the contrary.

Fourie J

[10] In his affidavit Mr Kiewitt, the former station commissioner of A Claremont, annexes a copy of the record of arrests of sex workers for the period January to December 2006 in Claremont. This records 106 arrests, of which not one resulted in a prosecution. In each instance the record reflects a withdrawal at court of the charge against the arrested person. B

[11] It is significant to note that the documents forming part of the answering papers of first to seventh respondents, disclose that police dockets, which are normally prepared by the SAPS following an arrest, for submission to the public prosecutor who has to take the decision whether to prosecute or not, are generally not opened in respect of C arrests of sex workers. These annexures also show that during the period 29 September 2005 to 22 February 2007, no police dockets were opened in respect of the arrests of sex workers for 'loitering', a charge often preferred by the arrestors.

[12] Mr Jonas, the Chief of the City Police, has deposed to an affidavit D on behalf of eighth respondent. He, too, does not directly refute the allegation that it emerges clearly from the statements made by arresting officers to sex workers, that members of the SAPS and the City Police are aware that sex workers are virtually as a matter of course not prosecuted. In effect, he falls back on the defence that it is not the fault of the City E Police that there is no prosecution.

[13] The confirmatory affidavits of the sex workers confirm the absence of any prosecutions. A few examples will suffice. One sex worker describes having been arrested approximately 200 times during the last F six years, but never prosecuted. Another claims that she has been arrested over 100 times...