Hilary Gush

S. Africa's highest court says prostitution a crime

JOHANNESBURG — A South African brothel owner, her driver and a sex worker lost their bid to the country's highest court to legalise prostitution on Wednesday.

By six judges to five, South Africa's Constitutional Court dismissed their application that a law banning selling sex discriminated against women and was therefore unconstitutional.

By doing this, it overturned an earlier ruling that effectively said prostitution was legal because the Sexual Offences Act discriminated against women and was therefore at odds with the country's basic law.

But last year's Pretoria High Court ruling also said keeping a brothel was a crime, a ruling upheld by the Constitutional Court on Wednesday.

"Both judgments make it clear that the decision as to how to regulate prostitution is a matter primarily for the legislature," the Constitutional Court said.

Julian Knight, the lawyer representing the sex workers, said prostitutes would still ply their trade despite the ruling.

"The irony is that irrespective of the present legislation making prostitution illegal, it is an industry that has been given less of a priority by the state because there are far more serious crimes. The only people benefiting from the regime of illegality are crooked cops and brothel owners."

Prostitutes say women who sell sex are criminalised, but men who pay for it are rarely charged.

But the court found the Sexual Offences Act applied to male as well as female prostitutes and called it gender neutral.

South Africa's constitution is considered one of the world's most progressive and liberal.

But two of the Constitutional Court's 11 judges held a contrary view on Wednesday, saying the law constituted unfair discrimination "by making the prostitute the primary offender and regarding the patron at most as an accomplice."

Helen Alexander of the Sex Worker Education and Advocacy Taskforce (SWEAT) said the group was disappointed with the ruling. "But we're pleased that the judges consider that it's up to the legislature to review the laws regarding sex workers."

SWEAT works to get adult sex work legitimised and to promote a safer industry in a country where 4.7 million people are living with HIV/AIDS, more than in any other country.

Doctors For Life, a group representing medical specialists, welcomed the ruling. It said prostitution was degrading to women, conducive to violent abuse, encouraged international trafficking of women and raised the risk of disease spreading.

It said to legalise prostitution — which it called "modern day slavery" — would not change this.

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