An application for an interdict was brought by the Sex Worker Education and Advocacy Taskforce (SWEAT) against The Minister of Safety and Security and others. It will be heard on the 5th of March 2009 in the Cape High Court.

SWEAT is a non-governmental organization which seeks to promote the health and human rights of sex workers. The main relief sought by SWEAT in this application is a declaration that no member of the South Africa Police Service (SAPS) in Cape Metropolitan and no member of the Cape Town City Police is entitled to arrest sex workers for ulterior purposes. Furthermore, SWEAT seeks to interdict and restrain all members of SAPS in the Cape Metropolitan and City Police from the continued unlawful and wrongful arrests of sex workers.

The sex workers with whom SWEAT works are predominantly outdoor sex workers. These sex workers are frequently arrested by the SAPS and the City Police, some more than once a week. Sex workers who have worked in the industry for a long time have since lost count of the number of times that they have been arrested. Notwithstanding this, the overwhelming majority of the sex workers who are arrested are never prosecuted. The sex workers are simply arrested, held overnight or for the weekend in police cells and then sometimes held for a few hours in the magistrate's holding cells before being released.

The reasons for the arrests of sex workers include a wide range of alleged offences, many of which refer to non-existent legal provisions or inapplicable laws. The SAPS and City Police have acknowledged in their papers that loitering is one of the reasons for which sex workers have been arrested. Part of the justification raised for the arrests is that sex workers must have obstructed or are likely to obstruct or to have caused an inconvenience or danger to persons or other traffic in a street or public place and the peace officers would have directed the sex workers to stop engaging in such conduct without compliance. However, it is alleged in the papers that any such justification for the arrests is absurd, because a peace officer, when arresting sex workers ‘for disrupting the traffic and failing to obey an order to cease from doing so, could not sensibly describe the arrest as being one for loitering.' As a result, SWEAT submits that all the arrests for ‘loitering' are patently unlawful.

Another ground raised for the arrests of sex workers is loitering with the intent to commit prostitution. This ground accounts for the greatest number of the arrests of sex workers by SAPS and City Police. All the admissions-of-guilt-fine notices attached in the application state the applicable law to be ‘Law 230 Sub article 3(17) of Act 209 of 1993.' However, ‘all of the respondents who admit reliance on this provision concede that there is no such provision as Law 209/1993 Art 3(17). Instead, ‘Act 209 of 1993 was the Local Government Transition Act 209 of 1993', which did not contain section 3(17) and did not contain any provisions which could have remotely justified the arrests of sex workers for ‘loitering with intent to commit prosecution' making the arrests of sex workers unlawful. Two other grounds for arrests are discussed in the application.

In addition, the SAPS and City Police are aware of the fact that sex workers are usually not prosecuted. SWEAT alleges that the police do not arrest sex workers with the intention to have them prosecuted or for further investigation for the purpose of having the sex workers prosecuted. They argue that the purpose for the arrests is the harassment and punishment of the sex workers. Additionally, the SAPS and the City Police also seek to clear the streets of any sex workers often in reaction to complaints from the public.

SWEAT relies on two distinct causes of action, namely that the unlawful arrests of sex workers violate the principle of legality and that the SAPS and City Police abuse their powers conferred by the Criminal Act 51 of 1977 when they arrest sex workers for purposes other than to have them prosecuted. As indicated above, ‘sex workers are often unlawfully arrested because the arrests are made on the basis of non-existent statutory provisions or are made in circumstances where the statutory provisions upon which the respondents rely do not authorize such arrests.' As such, the conduct of SAPS and City Police when arresting sex workers violates the principle of legality. The principle of legality is a principle which is implicit in the Constitution of the Republic of South Africa. The principle of legality is expressly recognized in section 1 of theConstitution, which describes the supremacy of the Constitution and the rule of law as part of the foundational values that underpin this new Constitutional dispensation of South Africa.

Moreover, ‘section 12(1) of the Constitution guarantees everyone the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause.' SWEAT submits that the arrests of sex workers are not for the most part justified by any legislation. The absence of any justification for arresting sex workers by SAPS and City Police constitutes a deprivation of the liberty and security of sex workers. Additionally, the Constitution in section 10 guarantees everyone a right to inherent dignity and the right to have their dignity respected and protected. Following the Constitutional Court's decision in S v Jordan and Others (Sex Workers Education and Advocacy of Task Force and others as amici curiae) 2002 (6) SA 642 (CC), SWEAT alleges that all accused and arrested persons should be treated with dignity by the police. Thus sex workers should be treated with dignity when accused of or arrested for a crime. In addition, section 33(1) of the Constitution affords everyone ‘the right to administrative action that is lawful, reasonable and procedurally fair.' SWEAT thus submits that members of SAPS and the City Police as public officials should act lawfully at all times.