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

• Jurisdiction: South Africa

Sex Worker Education and Advocacy Task Force v Minister of Safety and Security and Others
2009 (2) SACR 417 (WCC)

2009 (2) SACR p417

Citation	2009 (2) SACR 417 (WCC)
Case No	3378/07
Court	Western Cape High Court, Cape Town
Judge	Fourie J
Heard	March 5, 2009
Judgment	April 20, 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.

Flynote : Sleutelwoorde

Arrest — Law relating to arrest — Purpose of arrest must be to bring suspect before court to face prosecution — Peace officers arresting sex workers while knowing with high degree of probability that no prosecution likely to C follow — Irrelevant whether such peace officers wishing to see arrestees prosecuted — Arrests carried out in knowledge that prosecutions highly unlikely, unlawful.

Fundamental rights — Right to dignity and right to freedom — Constitution of the Republic of South Africa, 1996, ss 10 & 12 — Peace officers arresting D 'outdoor' sex workers while knowing with high degree of certainty that no prosecutions likely to follow — Such arrests unlawful since purpose of arrest must be to bring arrestee before court to face prosecution — Police using such arrests as form of social control against public manifestations of sex work — Rights of such sex workers to dignity and freedom infringed — Interdictory relief granted. E

Headnote : Kopnota

The applicant, a non-profit organisation, approached the Court for relief aimed at preventing the allegedly unlawful and wrongful arrest of sex workers by members of the South African Police Service and the Cape Town City Police. It contended that sex workers were often arrested in violation of the principle of legality, and that the police routinely arrested them for the F ulterior purpose of harassing them, rather than for the lawful purpose of having them prosecuted. The Court first dealt with the factual basis for the applicant's allegations, before considering the causes of action based on ulterior purpose and the violation of the principle of legality.

Held, that a reading of the affidavits filed by the respondents justified the conclusion that they did not seriously dispute that sex workers were arrested G in circumstances where the arrestors knew with a high degree of probability that the arrestees would not be prosecuted. It appeared that certain police officers referred in this regard to a 'revolving door' scenario, in terms of which there were no consequences for the unlawful conduct of sex workers after an arrest. According to affidavits deposed to by certain sex workers, they were invariably detained overnight in police cells after arrest, before H being transferred to magistrates' court cells where they were held for a few hours and then released. Accordingly, no real dispute existed as to the fact that the arrests of sex workers during the period relevant to the application had taken place in circumstances where the arresting officers knew with a high degree of probability that no prosecutions would result. (Paragraphs [7]–[15] at 422e, 422h, 423g and 423i–j.) I

Held, further, that the purpose or object of an arrest must be to bring the suspect before a court of law, there to face due prosecution. While it was so that police officers were constitutionally obliged to carry out arrests as part of their crime prevention duties, and that the discretion whether or not to prosecute vested with the National Prosecuting Authority, the officer making the arrest was still required to do so with the object of bringing the J

2009 (2) SACR p418

A arrestee under the physical control of the State, so as to enable the prosecuting authority to institute criminal proceedings if appropriate. In casu, even if the arresting officers had wished to have the sex workers prosecuted, they had known with a high degree of probability that this would not happen. A peace officer who arrested a person while knowing B with a high degree of probability that no prosecution would follow, acted unlawfully, even if he or she would have preferred a prosecution. Accordingly, such arrests were unlawful. In view of this conclusion, and given that the applicant had, in its replying papers, restricted itself to the 'ulterior purpose' cause of action, it was not necessary to consider further the cause of action stemming from a possible violation of the principle of legality. C (Paragraphs [20]–[33] at 427a, 427c–f and 428e–g.)

Held, further, regarding the declaratory relief sought by the applicant, that a court could decline to grant a declaratory order if there were no actual dispute; if the question before it were hypothetical, abstract or academic; where the issue had already been decided by a court of competent jurisdiction; or where the legal position had been clearly defined by statute. The court D retained its discretion to grant or refuse a declaratory order whether or not constitutional issues were involved. In casu, what was sought by the applicant was not so much a declaration that the arrests were invalid in terms of s 172(1)(a) of the Constitution of the Republic of South Africa, 1996, but rather a declaration of rights as envisaged in s 38 of the Constitution. However, the issue on which the applicant sought the E declaration - that peace officers were not allowed to carry out arrests for an ulterior purpose - had already been decided by courts of competent jurisdiction. It followed that granting the declarator sought by the applicant would infringe upon the well-established policy that directed a court not to exercise its discretion in favour of deciding issues that were merely abstract, hypothetical or academic. Accordingly, the applicant was not entitled to the F declaration of rights it sought in the first paragraph of its notice of motion. (Paragraphs [37]–[45] at 429b–c, 429h, 430f–h and 430j–431a.)

Held, further, regarding interdictory relief, that the applicant had to show that a clear right existed; that a continuing injury to that right had actually been committed or was reasonably apprehended; and that no other satisfactory G remedy was available. An unlawful arrest was an infringement of a person's rights under ss 10 and 12 of the Constitution. As to the continuing nature of the injury, had there been a change in policy on the part of the authorities regarding the arrest of sex workers, such information would have been placed before the Court; the respondents' failure to do so justified the inference that the policy had not been changed. Accordingly, it was H reasonable to infer that arrests of sex workers, without the required lawful object of ensuring their prosecution, would probably continue in the future. Concerning alternative remedies, the submission had been made that sex workers could make use of internal police complaint procedures. However, these procedures were cumbersome, had given unsatisfactory results, and did not address the real issue, which was the arrest of sex workers when the I arrestors knew with a high degree of probability that no prosecutions would follow. (Paragraphs [46]–[54] at 431b, 431e, 432e–f, 432i–j and 433a–c.)

Held, further, regarding the argument that the granting of an interdict would be pointless, as it would simply restate the law concerning warrantless arrests, that the police were not targeting sex work per se, but the public manifestations of it. The arrest of outdoor sex workers therefore amounted J to a form of social control, and this clearly infringed on their rights to

2009 (2) SACR p419

dignity and freedom. This could not be countenanced, and a failure to grant A interdictory relief would amount to the Court shirking its duty as an enforcer of the law. (Paragraph [57] at 433h–434b.)

Application for interdict granted.

Annotations:

Cases cited

Reported cases

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) (2006 (11) BCLR 1255): referred to B

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449): referred to

Brown and Another v Director of Public Prosecutions and Others C 2009 (1) SACR 218 (C): referred to

Compagnie Interafricaine De Travaux v South African Transport Services and Others 1991 (4) SA 217 (A): referred to

Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) ([2006] 1 All SA 103): followed

Director of Hospital Services v Mistry 1979 (1) SA 626 (A): dictum at 635H - 636A applied D

Duncan v Minister of Law and Order 1986 (2) SA 805 (A): dictum at 820C - E applied

Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (2) SACR 105 (CC) (2002 (4) SA 613; 2002 (7) BCLR 663): dictum at 132c - f applied E

Ex parte Speaker of the National Assembly: In re Dispute Concerning the Constitutionality of Certain Provisions of the National Education Policy Bill 83 of 1995 1996 (3) SA 289 (CC) (1996 (4) BCLR 518): referred to

Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others 1980 (4) SA 156 (W): referred to F

Garment Workers' Union, Western Province, and Another v Industrial Registrar and Another 1967 (4) SA 316 (T): referred to

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): referred to

JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and G Others 1997 (3) SA 514 (CC) (1996 (12) BCLR 1599): dictum at 525A - C applied

Louw and Another v Minister of Safety and Security and Others 2006 (2) SACR 178 (T): referred to

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