Glenda Daniels
An erotic dancer stripped on a table, used a vibrator and simulated orgasm but there was no contact between her and her client. The owner of the club the woman performed in was charged on the basis that the act was indecent. However, a judge decided that there was tolerance in the community, and took both this and the Bill of Rights into account when acquitting the accused.
Advocate Mike Hellens, counsel for Andrew Phillips owner of Sandton brothel The Ranch that police closed last month related these events, which took place in Canada a few years ago, to the Johannesburg High Court this week.
Hellens told the court that the case against The Ranch has raised huge social issues, including decriminalising prostitution and an overly robust use of legislation that has caused the baby to be thrown out with the bath water. He argued that the laws governing the asset forfeiture unit are being discredited by being inappropriately applied.
Phillips is facing charges under the Sexual Offences Act and the Aliens Control Act. Looking more like a banker than an owner of a brothel, Phillips entered the court and waved to a packed public gallery filled with some of the 300 workers who are now unemployed following the closure of The Ranch.
A cleaner-cum-cook said: “He treated us very nicely. They should legalise prostitution; we had very nice jobs.”
Phillips is challenging the asset forfeiture unit on the basis of gender discrimination, violation of his constitutional rights and restriction of freedom of trade. The unit says that he indulged in trafficking women from countries such as Bulgaria, Romania and Thailand, and has contravened the Aliens Control Act; and that he ran a brothel, which contravenes the Sexual Offences Act.
Hellens asked: “What are we doing in our society, where we are branding Phillips in the same way that we would a thief, a drug trafficker, a child molester?
“Our society is going to have to grapple with these issues, that have arisen from places like The Ranch, on the basis of constitutionality. The laws are out of sync with the values of the Constitution.”
About R40-million of Phillips’s assets were seized. He is opposing this on the basis that the prohibition of prostitution is unconstitutional and that the state should not legislate morality. He argues that the Sexual Offences Act suffers from its dependence on a concept of prostitution that is moralistic and not in keeping with fundamental rights protected in the Bill of Rights, such as gender equality.
The Sexual Offences Act says that if a man and a woman who are not married have intercourse and one of them requires a reward for this, the person obtaining the reward commits an offence. The person paying or giving the reward does not.
The defence argues that this is discrimination against women, because the act of the man is not criminalised. In addition the law discriminates against unmarried women. The Constitution provides that the state may not unfairly discriminate, directly or indirectly, against anyone on grounds that include gender, sex, marital status and sexual orientation.
However, National Directorate of Public Prosecutions representative Sipho Ngwema said outside the court this week: “It is outrageous that he [Phillips] is challenging this on the basis of gender equality. He has treated women badly. He has acted in brazen contravention of the law, by keeping a brothel and by trafficking women from overseas.”
Phillips said: “This is a money-grabbing exercise. I am the most successful businessman in the adult entertainment industry in the country. Sex work has been deprioritised as an issue for the past seven years. Why target The Ranch when the police have evidence of places that are engaged in child prostitution?
“They should be going after the thugs and drug lords. I’m not against the legislation, which is good but not the way they are using it against The Ranch, which is above board.”