For years outdoor sex workers in Cape Town have been arrested frequently for ‘loitering’ and ‘loitering with the intent to commit prostitution’ but seldom prosecuted. In the period from January to December 2006 the Claremont Police Station in Cape Town recorded 106 arrests of sex workers, of which not one resulted in a prosecution. The sex workers were detained overnight in police cells, taken to the magistrate court cells the next morning and then released after a few hours. To some sex workers this has happened more than 100 times.

The groundbreaking judgment handed down by the Western Cape High Court on 20 April 2009 in Sex Worker Education and Advocacy Task Force v Minister of Safety and Security and others has changed this state of affairs. It is victory not only for sex workers but for other vulnerable groups such as informal traders, streets kids and homeless people who often report similar abusive actions by the police.

The Court interdicted the South African Police Service (SAPS) and the City Police in Cape Town from arresting sex workers for a purpose other than to bring them before a court of law to face due prosecution, which is the object of an arrest. The Court also interdicted the SAPS and the City Police in Cape Town from arresting sex workers while knowing with a high degree of probability that no prosecutions would follow from the arrests.

The applicants, who were represented by the Legal Resources Centre (LRC) in Cape Town, had placed two arguments before the Court. They had argued that the SAPS and the City Police routinely use the powers of arrest conferred on them by the Criminal Justice Act of 1977 to arrest sex workers for the ulterior purpose of harassment rather than for the lawful purpose of prosecution. This, the applicant had argued, violated the sex workers’ rights to dignity and freedom as enshrined in sections 10 and 12 of the Constitution. They had also argued that the sex workers are arrested in violation of the principle of legality.

Unfortunately, only weeks after the judgment, it has come to the attention of the LRC that the SAPS and the City Police in Cape Town are acting in contravention with the court order. This lack of transformation is perpetuated by existing stigma of sex workers and the belief that legalising prostitution will create greater societal problems. The SAPS has now applied for leave to appeal against the judgment, which means that a long legal battle may still lie ahead for sex workers.