On Monday and Tuesday the High Court in Cape Town heard arguments from legal teams of five prospective opponents to the court bid to decriminalise prostitution, as well as 16 prospective friends of the court (amici curiae), on becoming parties/participants in the case. Of the 16 amici, 14 are in favour of decriminalisation and two are opposed to full decriminalisation.
On Monday, after hearing the two counsel for the five intervening respondents, Cause for Justice and a coalition of four organisations (one local and three foreign), the court (Judge Le Grange presiding) ruled that it was satisfied that the intervenor applicants made out a case for intervention and they are allowed to intervene as respondents in the case. [See video from Monday below in which Ryan Smit of Cause for Justice thanks God for their successful intervention application].
The court’s decision regarding the admission of the 16 amici stood over to Tuesday, with the judge, on Monday, indicating his inclination to whittle down the number of amici. However, in delivering its judgement on Tuesday, the judge admitted all 16 amici to the case, quoting the Constitutional Court’s judgment in Koyabe v Minister of Home Affairs [2009] ZACC 23, paragraph [80]: “Amici curiae have made and continue to make and continue to make an invaluable contribution to this Court’s jurisprudence. Most, if not all constitutional matters present issues, the resolution of which will invariably have an impact beyond the parties directly litigating before the Court. Constitutional litigation by its very nature requires the determination of issues squarely in the public interest, and in so far as amici introduce additional, new and relevant perspectives, leading to more nuanced judicial decisions, their participation in litigation is to be welcomed and encouraged.”
As regards timelines, the court ruled that:
Two of the amici curiae (Women’s Legal Centre and Triangle Project), who wish to adduce evidence/reports, were to do so by no later than September 19;
The intervening respondents, including Cause for Justice, have to file their answering affidavits (the factual basis of their opposition on the merits) by October 13; and
The applicants have to file their replying affidavits (response to the intervenors’ opposition) by December 3.
The court also noted that the hearing of the main application would be scheduled for the second term of 2026. It has since been confirmed that the case will be heard from May 18 to 20, 2026.
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What comes next for Cause for Justice?
In consequence of the court’s rulings on September 1 and 2, Cause for Justice will now begin with the mammoth task of representing the public interest in the retention of the criminal ban on prostitution, by preparing its opposing papers to the applicants’ case, in order to meet the filing deadline of October 13.
To find out more, go to https://causeforjustice.org/the-case-against-the-legalisation-of-prostitution/
Background
In May 2024, a pro-prostitution organisation, the Sex Workers Education and Advocacy Trust (SWEAT), and associated parties brought a court application challenging the constitutional validity of legal provisions that criminalise prostitution. The applicants are asking the court to decriminalise adults’ engaging in sexual acts for reward (“prostitution”), both prostituted persons and so-called “sex buyers”. In addition, they want the court to direct various state organs to withdraw all criminal proceedings, expunge all criminal records, and release any persons serving a sentence for engaging in prostitution.
The cause of CFJ’s intervention
The state of current South African law is that to receive payment for a sexual encounter with another who is not one’s spouse, is a crime.1 So too, is paying someone (a prostituted person or a third party) in order to engage in a sexual encounter with a prostituted person.2
In a matter as this it is reasonable to expect that the state would defend a law made by Parliament as direct representative of the South African electorate. The Constitutional Court previously upheld the legislation in S v Jordan (2002) and the South African Law Reform Commission (SALRC), after a wide-ranging and intensive seven-year project, recommended in 2015/2017 that the current total criminal ban on prostitution should be retained and further steps be taken to assist prostituted persons to divert out of the “commercial sex trade”.3
Despite initially noting their opposition, CFJ learned at the end of 2024 that the South African government had withdrawn its defence, leaving the case completely unopposed. CFJ seeks to uphold the legislation and accordingly applied to join the case to represent the public interest in retaining the criminal ban on prostitution.
CFJ’s stance is based on the fundamental dignity of each human person, endowed with inherent worth and incalculable value. Prostitution involves the commodification of the human body, reducing human beings to commercial sex objects/commodities for the sexual gratification of predatory individuals, i.e. it violates their personhood and equal dignity as members of the human family.
Research and first-hand accounts of the practice and system of prostitution from around the globe, show that prostitution is inherently exploitative, violent and abusive, and is associated with an array of destructive and harmful consequences for the individuals involved in it, their families, surrounding communities and the rest of society. 4 Prostitution is an irredeemable vice.
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Footnotes:
1 In terms of section 20(1A)(a) of the Sexual Offences Act, 23 of 1957.
2 Section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007.
3 See Report on Project 107 Sexual Offences – Adult Prostitution, first published in 2017. Available online at https://www.justice.gov.za/salrc/reports/r-pr107-SXO-AdultProstitution-2017.pdf.
4 See the SALRC Report and paragraph [86] of S v Jordan (2002).
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