The Constitutional Court ruled unanimously on Wednesday that legislation criminalising brothels was constitutional, but were divided over a request to confirm a high court order invalidating the criminalisation of prostitution.
The case was brought to the Constitutional Court by three brothel owners. It followed a magistrate’s conviction of a brothel owner and a prostitute for contravening the Sexual Offences Act earlier in the year, and a subsequent high court appeal.
The high court found that the section of the Act criminalising prostitution was unconstitutional, but dismissed the appeal against sections of the Act criminalising the keeping or running of a brothel.
The Constitutional Court judges differed in their findings on whether the prostitution provision constituted unfair gender discrimination and consequently gave two judgments — one with which the majority concurred and a minority judgment. The majority judgment said the provision criminalised both male and female prostitution and was therefore not discriminatory, and was constitutional.
The minority judgment found that because the provision made the prostitute the primary offender and the patron an accomplice, it was discriminatory, reinforced sexual double standards and perpetuated gender stereotypes. On these grounds the minority judgment found it to be unconstitutional.
The court refused to confirm the high court order invalidating the prostitution provision and the sentences handed down to the brothel owner and prostitute in the magistrate’s court were reinstated.
A number of amici curiae (”friends of the court”) argued before the Constitutional Court’s 11 judges, for the invalidation of all provisions of the Act. – Sapa