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[1988] ZASCA 46
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S v Horn (62/87) [1988] ZASCA 46 (17 May 1988)
62/87 /mb
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
) In tne matter between:
THE STATE
APPELLANT
AND
RENé HORN
RESPONDENT
CORAM
: CORBETT, KUMLEBEN, JJA et BOSHOFF, AJA
HEARD
: 22
MARCH 1988
DELIVERED
: 17 MAY 1988
JUDGMENT
KUMLEBEN, JA
On 16 August 1985/
1.
On 16 August 1985 three members of the South African Police
visited,incognito,a so called
Escourt Agency where they engaged the services of three of its members for a
night's entertainment. They went with their partners
to a dwelling unit of some
sort at a caravan park,called "Hennops Pride", in the Pretoria district. There
other police personnel
awaited them, ostensibly as their hosts. They were in
fact also part of a pre-arranged police trap. In the course of the evening
each
of the women agreed to have sexual intercourse with her partner for reward.
Money changed hands. At a stage when the women had
undressed and each was
fulfilling her side of the bargain, or was about to do so, the trap was
sprung.
In/
2 .
In due course the three women, one of whom
is the present respondent, were charged in the court
of the magistrate at Pretoria with the contravention of
sec 20(1)(a) of the Immorality Act, 23 of 1957 ("the
Act"). It was alleged that at the aforesaid time and
place they had unlawfully and knowingly lived wholly
or partially on the earnings of prostitutïon, to wit,
by receiving money for the purposes of sexual inter-
course. They pleaded not guilty. The facts on which
the State sought to rely were admitted and some
amplificatory evidence, led at the instance of the
magistrate, was not challenged. The defence raised
was one of law. It was argued on behalf of the accused
that the penal provisions of sec 20(1)(a) are directed
at persons who parasitically live on the earnings of
prostitution,/...
3
prostitution, that is, on the earnings of a prostitute,
and not at the
prostitute herself. Thus, so it was
contended, on the assumption that the evidence of
what took place that night proved the women to have
been prostitutes, they had nevertheless not committed
the offence. This argument was rejected by the magistra-
te who found them guilty as charged. However, the
appeal of the appellant (respondent in this Court) to
the Transvaal Provincial Division of the Supreme Court
was upheld and her conviction and sentence were set aside.
The Court (Spoelstra J and Roux J), acting in terms of
sec 304(4)
of the
Criminal Procedure Act 51 of 1977
, re-
viewed the convictions and sentences of the other two
accused and set them aside as well. The State in turn,
with leave, appealed in terms of
sec 311(1)
of the
Criminal/
4. Procedure Act and thus the question of law which now
falls to be decided by this Court is whether the conduct
of a prostitute
in plying her trade constitutes an
offence by
her
in terms of sec
20(1)(a) of the Act. It
reads as follows:
"Any person who -
(a) Knowingly lives wholly or in part on the earnings of prostitution; ... shall
be guilty of an offence."
The words "living on the earnings of
prostitution"
aptly describe someone, other than the prostitute,
who
derives a livelihood from her trade. As
Wessels
J said
in
Seligman v Rex
1908 T.S. 390
at 393 of sec 21(1)(a)
of Ordinance 46 of 1903 (Transvaal), which was identi-
cally worded save that "any person" read "every male person"
"The section refers to anybody who takes
money from a prostitute
for the purpose
of furthering prostitution. That, after
all, is the test of the whole question -
was/...
5.
was the money paid by the prostitute for the purpose of furthering her trade,
and
purpose of aiding and abetting her in her trade and helping her to carry it on?
If he receives money from a prosti-tute for that
purpbse, he must be said to
live on the proceeds of prostitution".
But it can also be said -
though perhaps less readily -
that the prostitute herself in plying her trade
lives
on its earnings. The critical words constituting the
offence are
therefore not in themselves unambiguous.
Their meaning must consequently be
sought in the con-
textual setting in which they appear. And in
this
regard as has been recently affirmed in
Santam Insuran-
ce
Ltd v Taylor
1985(1) SA 514(A) 526 I - 527 C that in
certain instances "the historical perspective can be of
great assistance in resolving problems of interpretation."
(See/
6. (See too
Jaga v Dönges, N.O. and Another; Bhana v
Dönges N.O. and Another
1950(4)SA653(A)at 662 G -H.)
The ancestry of sec 20(1)(a) is both in-
structive
and significant. The Transvaal Ordinance,
to which I have referred, read as follows:
"Every male person who (a) knowingly lives wholly or in part on the earnings of
prostitution; ... shall be guilty of an offence ..."
The
corresponding pre-Union enactments of the Cape,
Orange Free State and Natal
are identically worded, save
that in the last-mentioned the offence was not
restric-
ted to a "male person"; its provisions applied to "every
person."
They are sec 33(1)(a) of Act 36 of 1902 (Cape),
sec 13(1)(a) of Ordinance 11
of 1903 (Orange Free State)
and sec 15(1)(a) of Act 31 of 1903 (Natal).
(These four
enactments of the provinces were repealed by the Act.)
The/
7. The first three manifestly did not have the prostitute
in mind. The reference to a male person puts this beyond
is a "female-given to indis-
criminate lewdness" - The New Webster Encyclopedic Dic-tionary of the English
Language page 669. (The use of the word "prostitute"
in reference to a male
person -usually preceded by the word "male" - is now recognised but was not
current at the time the Act was
promulgated - see Supplement to the Oxford
English Dictionary Vol III s.v. "Prostitute.") The decisions interpreting and
apply-ing
these three subsections consistently ascribed to them the meaning
reflected in the quoted passage from
Selig-man's
case. (See, for
instance,
Lawrence v Rex
1908 T.S. 716
;
Lindenstein v Rex
1908
T.S. 430
;
Rex v Roothman
1921 A.D. 298
;
Rex v Scholtz
1942 CPD
118).
To judge from the two reported decisions on the Natal provision, it,
despite its wider wording, was similarly construed. This one
infers from the
fact that in neither of those two cases was the prostitute charged. (See
Epselman
v Chief
/
8.
v Chief Constable, Pietermaritzburq
1918 NPD 294
and
It is against this background that sec 20(1)(a)
is
to be viewed and interpreted. Had the legislature,
with the promulgation of
the Act and the repeal of its
predecessors, intended to change the essential
character
of the offence, in my view, it would not have done so by
merely
extending the range of persons to which the offence
applied. The conduct of a
woman living parasitically on
the earnings of a prostitute is no less reprehensible than
that of a man
doing so: it was no doubt for this reason tha
it was decided that any discrimination between the sexes in
this regard was unjustified.
Mr Jordaan
, who appeared
for the appellant, in argument laid particular stress on
the word "any" in the subsection and submitted that
the/
9.
the reference to "any person" was an effective and unam-
biguous method of extending the scope of the offence to
include the prostitute herself. But this reasoning large-
ly begs the question, which, as I have said, is whether
it was intended to
alter the nature of the offence or simp-
ly to extend the range of persons to which it would apply.
Counsel also
drew attention to the fact that the Act, accor-
ding to its long title, was
promulgated "(t)o consolidate
and amend
the laws relating to brothels
and unlawful carnal
intercourse and other acts in relation thereto" (counsel's
emphasis). But
the interpretation of the subsection, for
which respondent contends, conforms
to this purpose. The
corresponding sections of earlier enactments were consoli-
dated and, in the case of three of them, amended.
Two/
10. Two otner subsections of the Act lend strong
support to the construction of sec 20(1) (a) relied upon
by respondent:
They are subsecs 20(2) and 21(3) which read as follows.
Sec 20(2)
:
"If it is made to appear to a magistrate by in-formation on oath that there is
reason to sus-pect that any house is used by a female
for purposes of
prostitution and that any person residing in or frequenting the house is living
wholly or in part on the earnings
of the pros-titute, the magistrate may issue a
warrant authorizing any police officer not below the rank of sergeant to enter
and
search the house and to arrest that person."
Sec 21(3)
:
"Whenever in any prosecution under this Act a person is proved to reside in a
brothel or to live with or to be habitually in the
com-pany of a prostitute and
has no visible means of subsistence, such person shall, unless he or she
satisfies the court to the
contrary, be deemed to be knowingly living wholly or
in
part/......
11.
part on the earnings of prostitution."
Sec 20(2)follows upon subsec (1), in which
the offence is created, and is clearly intended to
authorise and facilitate the arrest of a suspected
offender. But the person in respect of whom the warrant
may be issued ("that person" ) is the person ("any person")
suspected of residing or frequenting a house "used by
a female for purposes of prostitution," not the "female"
(the prostitute) involved. Had the legislature intended
her to fall within the ambit of subsec (1), the language
of subsec (2) would have, I am sure, made provision for
her arrest as well. Similarly sec 20(3), which places
an onus in the stated circumstances upon an accused,
("a person"), in a prosecution for a contravention of
sec 20(l)(a), of proving that he or she ("such person")
did/....
12. did not commit the offence, plainly has reference to
a person other than "the prostitute" who lives on her
earnings.
In
argument Mr Engelbrecht, who with Miss Kilian appeared on behalf of the
respondent, attached importance to the use of the word
"knowingly" in sec 20(1)
(a) which, as he correctly submitted, would be superfluous and in-appropriate in
reference to a prostitute
plying her trade. However, the answer to this
contention, which appears to me to be cogent, is that, on the supposition that
appel-lant's
interpretation is correct, "knowingly" would be pertinent to others
living on the earnings of prostitution who in certain circumstances
may do so
unwittingly.
It was also contended on behalf of
respondent
that/
13. that, if it were the intention to bring the prostitute
within the net
of criminal liability, the requirement
that
she
should live on her earnings from prostitution
would be a redundant and irrelevant requirement. If
she was proved to be a prostitute, that fact should be
enough - so the argument ran - whether or not she lived
on her earnings from that source. But in point of fact
proof that she was paid for her services would inevi-
tably prove that she lived on such earnings. That this
is so appears from what was said in
Seligman v Rex
(supra)
in rejecting a similar argument advanced on behalf of a
pimp. At page 393
Wessels
J observed:
"It would be ridiculous to say that if a prostitute paid money to a pimp, and
the pimp spent it at a baker's or at a butcher's, then
he would fall under sec.
21, sub-sec. l(a), but that if he happened to put it on
a/
14.
a totalisator, or devoted it to any other
purpose but that of living, then he would
not be guilty. Such a contention is
wholly ridiculous."
By the same token the prostitute on receipt of the
money must be taken to be living on such earnings,
no matter how the money is spent or used. There is,
however, merit in the submission that, if it were in-
tended to make prostitution
per se
an offence, this
would have been done explicitly.
In the result, for the reasons stated, I
consider that on a proper interpretation of sec 20(1)(a)
it was not intended that criminal liability should
attach to the prostitute involved and that the decision
of the Transvaal Provincial Division on appeal was correct.
Mr Jordaan conceded, that, should the appeal be dismissed,
respondent/
15.
respondent is entitled to an order of costs. Sec 311
such an order in an appropriate case (see
Attorney-
General,
Natal v Ndlovu
1988(1) S.A. 905(A) at 9181).
The appeal is accordingly
dismissed and the
appellant is ordered to pay the respondent's costs
of
appeal.
M E KUMLEBEN JUDGE OF APPEAL
CORBETT, JA )
concur
BOSHOFF, AJA)