/ 11 March 2003

Court says striptease ban is unconstitutional

A section of the Liquor Act prohibiting striptease dancing on licensed premises was struck down by the Constitutional Court on Tuesday.

Andrew Phillips, the owner of the upmarket Sandton brothel The Ranch, was prosecuted under the Liquor Act for allowing nudity on the premises. He appealed to the Johannesburg High Court in 2002, which set aside his conviction on the grounds that the relevant section of the Liquor Act infringed the right of freedom of

expression guaranteed in the Constitution.

As the high court does not have the power to make definitive rulings in constitutional matters, the Constitutional Court was called on to confirm the ruling.

Justice Zakeria Yacoob, writing for the majority of the 11 judges, said that while the State has an interest in minimising the harm that liquor can do in society, the prohibition in the act was too broad to be reasonable. It could have restricted the activities of theatres — which also have liquor licences — whose ”core business… is to realise protected freedom of expression by presenting artistic creations”.

The majority of the court held that a more narrowly phrased prohibition could have been constitutional.

In a dissenting judgment, Justice Tole Madala held that the prohibition did not limit freedom of expression, but merely required that alcohol not be served on a day when performers were ”not clothed” or ”not properly clothed”. Madala said given the potential dangers when nudity and drunkenness were combined, the prohibition was reasonable.

Tuesday’s Constitutional Court judgment does not affect Phillips’ trial — due in the Johannesburg Regional Court in August — on charges of running a brothel and employing illegal immigrants. The elite investigating unit the Scorpions forced The Ranch to close in December 2000.

Many of the 41 women alleged to be working as prostitutes were in South Africa illegally. – Sapa