If there is any underrated provision in South African constitutional law, it is the right to trade, choose your profession, and freely engage in economic activity. This, very libertarian, right appears in both our post-Apartheid constitutions, yet it has, on the face of it, not had any effect on the State’s endless crusade to curtail voluntary economic interactions between free individuals.
Section 26 of South Africa’s former constitution (the 1993 interim Constitution), read as follows:
“(1) Every person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory.
(2) Subsection (1) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labour practices or equal opportunity for all, provided such measures are justifiable in an open and democratic society based on freedom and equality.”
That provision sounds pretty straightforward. It appears even more straightforwardly in section 22 of the current 1996 Constitution:
“Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.”
(my emphasis – note that the ‘open and justice society based on freedom’ provision also applies here, and is found in section 36)
In the Constitutional Court case of S v. Jordan, the appellants, who were prostitutes, argued that the criminalization of prostitution in the Sexual Offenses Act was unconstitutional.
They did so on the basis of various constitutional rights, “[arguing] that the structure of the Constitution makes it necessary to cluster the rights to dignity, privacy, and freedom of the person under the global concept of autonomy … It is a matter of extreme significance for all persons to be able to determine how to live their lives. It is the experience of autonomy that matters, the right to make decisions rather than the content of these decisions … The state should not be empowered to make judgments concerning the good or bad life, provided that the conduct in question does not harm others. Such conduct might be unworthy or risky, but if it is not harmful to others then the state can not interfere.”
Consequently, they based their argument on, among other things, the right to equality, privacy, freedom of association, and the right to economic activity (above). I am not concerned with the other bases, because it is my view that the right to economic activity is the most relevant. Prostitution, as we know, is a commercial occupation, just like being an actor or actress who happens to engage in sexual activity, is a (legal) commercial occupation. I will therefore only address the Court’s judgment on in that regard.
In the Court’s majority judgment, Justice Ngcobo dispensed with the right to economic activity in just four paragraphs, which are insultingly short enough for me to sum up here:
- In paragraph 23, Ngcobo states that both sections 26(1) and (2) should be read together. This means that restraints on economic activity which are not justified in subsection (2) are unconstitutional. Subsection (2), according to the judge, requires “a rational connection between the legislation and the legislative purpose sanctioned” by that section. If the restrained economic activity is allowable in terms of subsection (2), it must be determined whether the purpose of that restraint is justifiable in an open and democratic society based on freedom and equality.
- In paragraph 24, the judge outlines the State’s justification of the criminalization of sex work: “to promote the protection or improvement of the quality of life and human development”, as sanctioned by subsection (2). “Prostitution is associated with violence, drug abuse and child trafficking”.
- In paragraph 25, the judge says that Parliament has a responsibility to “combat social ills”. This must be consistent with the Constitution, and, if it is, the Courts cannot “enter into the debate”, and must apply the wishes of Parliament. The options available to Parliament to combat these “social ills associated with commercialised sex” are criminalization, regulation, and doing nothing.
- In paragraph 26, the judge acknowledges the State criminalizes prostitution. He goes on to say that it appears that subsection (2) allows for this. According to Ngcobo, what Parliament is doing is “clearly designed” to protect and improve the quality of life”. Whether this is effective or not is not up for the Court to decide. Simply because the legislation says it seeks to do something consistent with the Constitution, it is prima facie (on the face of it) consistent with the Constitution.
The judge goes on to say
“The Act pursues an important and legitimate constitutional purpose, namely, to outlaw commercial sex. The state has advanced several explanations for the suppression of commercialised sex. First, the business is said to breed crime which is not confined to the sale of sex but which extends into violent crimes. Second, the business result in the exploitation of women and children. Third, it leads to trafficking in children. Fourth, it leads to the spread of sexually transmitted diseases. The appellants and amici contended that these social ills can be eliminated by decriminalising and regulating commercial sex. In my view these arguments must be addressed to the legislature.”
The fallacies in his judgment are obvious.
Neither the interim nor current Constitutions places a responsibility on Parliament to “combat social ills”, nor is there, anywhere, a “legitimate constitutional purpose” (indeed, no constitutional purpose at all) to outlaw commercial sex work. These Constitutions make absolutely no mention thereof.
The judge believes it is implicit in the fact that Parliament is empowered to make law, and that the Constitution is on the whole dedicated to various causes such as social justice and the betterment of life, that it must combat social “ills”. However, to come to this conclusion, the judge was supposed to enquire into whether the prohibition was compatible with those values underlying our constitutional order, i.e. freedom and equality.
He, however, does not, and takes it for granted that because the Sexual Offenses Act’s text says the legislation is intended for the betterment of life (i.e. thus compatible with the Constitution), then it is so compatible by default. This is a legal fallacy which Ngcobo attempts to remedy by saying it is not for the Courts to decide whether the legislation is effective. But efficacy is irrelevant. The legislation outright prohibits certain economic activity and simply declares that it is for a particular purpose. To illustrate the problem, imagine the following:
“Persecution of Political Dissidents Act of 2016
This Act is dedicated to realizing the aims and values found in the 1996 Constitution of South Africa, among which are social justice, freedom, equality, equal protection of the law, due process, the elimination of poverty, and all-around nice stuff for everyone.
Bearing in mind the purpose of this legislation, it is provided that all those who seek to oppose the governing party whether through speech or conduct, shall be executed without trial, if such execution is justifiable in an open and democratic society based on freedom and equality.”
Quite ridiculous, huh? One might be tempted to think that this Act violates the right to due process, freedom of expression, and political rights. But it doesn’t! The Act is clearly “designed to promote” the values underlying the Constitution, and it is not for the Courts to decide whether or not it is effective in that regard.
You are quite right: this is legally incorrect.
Bearing this in mind, we can move to the last fallacy found in Ngcobo’s judgment. The State’s argument that prostitution is associated with violence, drug abuse and trafficking (thus constituting a “social ill”) is accepted by the judge without any further ado, saying it should be left to the legislature (the fallacy addressed above). The criminalization of prostitution itself is what has led to these phenomena; i.e. the legislation causes the problem it seeks to address, by driving this otherwise peaceful economic activity into the criminal underground. Therefore, according to the judge’s own logic – that there needs to be a rational connection between the legislation, and the purpose which the legislation seeks to achieve – the Act must unconstitutional.
Justices Sachs and O’Regan, who dissented from the majority, offered a no better analysis of section 26. Indeed, they base their rejection of the argument that criminalizing prostitution violates freedom and personal autonomy on the fact that other countries, which they declare without further inquiry to be “open and democratic”, prohibit prostitution as well. In effect, they are saying that because others do it, it is also consistent with our constitutional provision saying the law must be justifiable in an open and democratic society based on freedom and equality. This is an even worse fallacy than that of Ngcobo.
The Court is supposed to apply its own mind, and not take its cue on a whim from foreign experiences. Otherwise the Constitutional Court could, theoretically, with reference to Cuba and North Korea, say that the South African government is entitled to execute political dissidents, because other “open and democratic societies” also do it, and thus our rights must be seen in that light.
The Jordan judgment is, unfortunately, the precedent set by our highest court. Unless Parliament legalizes sex work itself – which will, logically, negate the arguments it made in front of the Court, and thereby humiliate the Court – the Constitutional Court must reverse its own judgment, if we wish to see this perfectly consensual economic conduct allowed.
One would think that the social justice left – of whom all of the aforementioned are, Justice Albie Sachs especially – would be at the forefront of vocally advocating the legalization of sex work. But especially within leftist legal theory, this is hardly always the case. Associate Professor Michelle Dempsey – a feminist legal scholar – from the University of Pennsylvania openly advocates the criminalization of prostitution, more or less in the same vein as the criminalization of child pornography: if we allow persons to buy sex, then we create a market for it, and thus we create a legally-sanctioned market for the exploitation of women. Other leftist scholars such as Cheryl Butler, Assistant Professor at Dedman School of Law, and the infamous Catherine MacKinnon herself, posit that prostitution is not a choice, but a form of structural oppression – the oldest in the world – of women by men. Women, thus, don’t really partake in these activities voluntarily. This strongly implies a support for criminalization.
But the left has consistently been intellectually dishonest not just with the rest of us, but with themselves as well. These feminist academics and the judges on our Constitutional Court bench are more than happy to see the women they so passionately ‘care’ about, thrown in jail. On the one hand, they declare that women own their bodies and should have the final say! Well, they can have the final say unless the academics don’t agree with that choice. Of course, when the intelligentsia disagrees with their choice, then it isn’t really voluntary. Remember, women and black people, according to leftist academia, are perpetual minors who cannot make decisions for themselves in less than optimal circumstances. They require the paternal State to always ‘help’.
Like the use of drugs, prostitution has been criminalized on a global scale, relegating ordinary human beings who have hurt nobody (except themselves, perhaps) to common criminals. But, as the oldest profession in the world, it has withstood the test of time while other, legal, professions came and went. No leftist feminist or judge, or rightist moral crusader, is going to stop it now. Furthermore, not only has it withstood the oppressive heavy hand of the State for centuries, but also the social stigma which has accompanied it for a millennia. The State has assumed for itself a duty to decide for everyone what is proper and what is not, and thus also influenced generations of individuals into despising prostitution. This, it does arbitrarily, outlawing drugs but not booze, and allowing pornography but not prostitution. The judiciary has been an enabler in this unfortunate travesty of justice.
South Africa has suffered under this kind of paternal statism for centuries. Prostitution was formally outlawed during Apartheid and our new government has happily taken over the role of Oppressor-in-Chief. Of course, all under the guise of ‘helping’ us.
The end result of asking for ‘help’ from the government, whether that be minimal welfare or administration of mineral affairs, is a slippery slope to the State assuming the role of parent over the citizens, who are relegated to perpetual minors who can be chastised when they do something ‘improper’. This is a fundamental, but admittedly difficult, conclusion that everyone, especially South Africans, needs to reach.
While many are now advocating for the decriminalization of sex work, they are the same ones who are, on the other side, advocating the expansion of government power in terms of ‘prohibiting discrimination’ or granting special privileges to women. They do not yet recognize that this is simply a different slope, but one that is no less slippery.
Governments were instituted to protect person and property from aggression. They are institutions of force and are thus, by their nature, forceful. In effect, we are begging for trouble when we ask it to involve itself in non-force-related matters, such as drug use and (any) commercial activity. Only when the government concerns itself with its legitimate roles which were granted to it through the social contract (which exists over and above any statutory or constitutional law) will freedom be maximized, and the appropriate balance between liberty and morality be struck.
At the end of the day we should ask ourselves, if the State enforces (and defines) morality, are its subjects then truly acting morally, or does morality require voluntarism and agency? Forced ‘morality’ – like forced ‘compassion’, i.e. being compelled to foot the bill for welfare – is, in my view, illogical, and does more harm than good.