Cape Town sex workers on Monday won a court order to stop police arresting them when they know prosecution is unlikely to follow.
The order, by Cape High Court judge Burton Fourie, followed claims by sex workers that police were carrying out arrests merely to harass and intimidate them.
One sex worker told the court in an affidavit she had been taken into custody about 200 times over a period of six years, but never prosecuted.
Fourie interdicted the South Africa police and the city’s metro cops from arresting sex workers for any purpose other than to bring them to court to face prosecution.
In particular, he ordered them not to make arrests ”while knowing with a high degree of probability that no prosecution will follow”.
He ordered the minister of safety and security, the national and Western Cape provincial commissioners of police, four Cape Town station commissioners, and the City of Cape Town to pay the costs of the application.
The application was brought by NGO the Sex Workers Education and Advocacy Task Force, Sweat, which welcomed the ruling.
Spokesperson Vivienne Lalu said it was a major victory in the fight for human rights for sex workers.
”Sex workers will now have better access to the criminal justice system,” she said.
”It is important that law enforcement officers understand that they cannot operate above the law,” she said.
The application included affidavits from 13 current or former sex workers, detailing what Fourie described as ”alleged ill-treatment or other inappropriate behaviour” by the South African Police Service and city police.
Fourie said though the police denied those claims, they did not deny that sex workers were arrested ”in circumstances where the arrestors know with a high degree of probability that the arrestees will not be prosecuted”.
One of the police affidavits was from the former station commissioner of Claremont, which showed that of the 106 sex worker arrests in his precinct in 2006, not one resulted in prosecution.
”The theme which clearly emerges from the affidavits of the sex workers, is that after their arrests, they are invariably detained overnight in the police cells after which they are usually taken to the Magistrate Court cells the next morning, where they are released after being detained for a few hours,” the judge said.
”It has often been stressed by our courts that the purpose or object of an arrest must be to bring the suspect before a court of law, there to face due prosecution.”
Fourie noted the police argument that it was prosecutors, not police, who were to blame for the lack of prosecutions.
However, he said, a peace officer who arrested a person, knowing with a high degree of probability that there would not be prosecution, ”acts unlawfully even if he or she would have preferred a prosecution to have followed the arrest”.
Fourie said he agreed with Sweat that what the police were targeting through the arrests was not the illegality of sex work per se, but rather ”the public manifestations of it”.
”The arrests of the sex workers therefore amount to a form of social control,” he said.
”This clearly infringes on the sex workers’ rights to dignity and freedom.” — Sapa