S v Jordan and Others (2002)

1. Case Title and Citation 

Full name: S v Jordan and Others(2002) 

Official name: Jordan and Others v S and Others 2002 (11) BCLR 1117 (CC) 

Additional citation: S v Jordan and Others (Sex Workers Education and Advocacy Task Force  and Others as Amici Curiae (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642 (CC); 2002 (11)  BCLR 1117 (CC); 2002 (2) SACR 499 (CC) (9 October 2002) 

2. Court name and Bench 

Name of Court: Constitutional Court of South Africa 

Name of the judge: Justice Ngcobo J Majority judgment and O’ Regan and Sachs JJ  Dissenting judgment, Chief Justice Chaskalson, Justice Kriegler, Justice Madala, Acting  Judges Du Plessis, Acting Judge Skweyiya, Justice Sachs, Dissenting judgement Langa,  Justice Ackermann, Justice Goldstone. 

Bench type: All eleven of judge full bench 

3. Date of judgement

Heard on: 5 and 6 March 2002 

Judgement decided on: 9 October 2002

4. Parties Involved

APELLANTS/ PETITIONERS: 

Ellen Jordan (First Appellant) 

Louisa Johanna Francina Broodryk (Second Appellant) 

Christine Louise Jacobs (Third Appellant) 

RESPONDENTS/DEFENDANTS: 

The State Sex Workers Education and Advocacy Taskforce (First Amicus Curiae) Centre for applied legal studies (Second Amicus Curiae) Reproductive health research unit (Third Amicus Curiae) Commission for gender equality (Fourth Amicus Curiae) Pieter crous and menelaos gemeliaris (Fifth Amicus Curiae) Andrew lionel phillips (Sixth Amicus Curiae) 

5. Facts of the case

On the 20 August 1996, a police officer entered a brothel in Pretoria, owned by the first  appellant. The officer paid R250 to the second appellant, a salaried employee, and received a  pelvic massage from the third appellant, a sex worker. The three appellants admitted to  contravening the Sexual Offences Act 23 of 19571, which criminalises providing sex for reward  and brothel-keeping. However, they contested the constitutionality of the Act’s provisions.  While they did not contest conviction in the Magistrate’s Court, which lacks the authority to  rule on the constitutionality of statutes, they appealed the conviction and sentence to the  Pretoria High Court. In a judgment delivered on August 2, 2001, the High Court declared  section 20(1)(aA) of the Act2, which criminalised sex for reward, unconstitutional. The HighCourt went on to hold that sections 2, 3(b) and 3(c) of the Act (the brothel provisions) which  covered brothel-keeping were not unconstitutional.3 

“Unlawful carnal intercourse” is defined as intercourse outside of marriage. The High Court  viewed Section 24as a measure to curb the commercial exploitation of prostitutes, equating it  to “trading in the body of a human being,” and considered third-party management of  prostitutes, even with consent, as human trafficking5. The High Court concluded that public  disapproval of this exploitation justified limiting the rights of third parties to freedom of trade  and profession.6 The declaration of invalidity regarding sex for reward was referred to the  Constitutional Court of South Africa for confirmation. Subsequently, the first and second  appellants were granted leave to appeal directly to the Constitutional Court of South Africa  Court against the High Court’s refusal to overturn their convictions under the brothel  provisions. 

6. Issues raised

The case raises two main constitutional questions: 

1. Should the Constitutional Court confirm the High Court’s declaration that section 20(1)(aA)  is unconstitutional? 
2. Should the Constitutional Court uphold the appeal regarding sections 2, 3(b), and 3(c) of the  Act, finding them inconsistent with the Constitution? 

Argument of the parties 

APPELLANT CLAIMS 

(b) any person who manages or assists in the management of any brothel;  

(c) any person who knowingly receives the whole or any share of any moneys taken in a brothel”. 

The appellants and amici contended that the criminalisation of prostitution infringes upon  multiple constitutional rights, including equality7, human dignity, freedom and security8of the  person, and privacy9. They argued that this infringement constitutes unfair discrimination  against sex workers and violates their fundamental rights. Furthermore, the appellants asserted  that the restriction on engaging in economic activity and pursuing a livelihood, as stipulated in  section 26(1)10, is not justified under section 26(2)11, as it does not serve legitimate goals such  as human development or social justice. 

RESPONDENT CLAIMS 

The State contended that limiting the right to privacy under Section 1312 of the interim  Constitution through section 20(1) (aA)13 is justified to mitigate the harmful effects of  prostitution, including degradation of women, violence, trafficking, child prostitution, disease  spread, drug abuse, crime, and public nuisance. The legislation aims to enhance the quality of  life, as supported by section 2614. The legislature has the authority to address social ills through  criminal sanctions, consistent with the Constitution Courts must respect legislative choices  without evaluating their effectiveness. Options include criminalisation, regulation, or  abstention. Criminalising commercial sex and brothel-keeping seeks to eliminate prostitution’s  harmful effects, which are not protected by section 26, leading to the failure of the challenge  based on it. 

The High Court ruled that Section 20(1)(aA)15 unfairly discriminated by only criminalising sex  workers, not clients, and breached the Constitution by penalising consensual sex involving  payment. The State argued that this interpretation was incorrect. The central issue is whether  the High Court’s interpretation of the section is constitutionally sound. Specifically, the court  must determine whether the provision’s scope is limited to criminalising sex workers while  exempting clients, and whether it impermissibly captures non-commercial, consensual sex  involving reciprocal benefits16. The task is to discern a constitutionally compliant interpretation  that is reasonably sustainable. In practice, the section has been interpreted as targeting sex  workers, not clients, with no recorded prosecutions of clients since 1988. This interpretation  has been widely assumed, and the State’s broad interpretation would expand criminal liability,  which is a matter for the legislature to decide. The court declined to give an expanded  interpretation to section 20(1)(aA), citing constitutional values. Such an approach would  undermine the principle of legality requiring certainty in defining crimes and intrude on the  legislature’s role in a contentious area of public policy. 

8. Judgement/ Final verdict 

The Constitutional Court unanimously upheld the finding that the brothel provisions were valid  but divided six to five in respect of the constitutionality of the prostitution provisions.17 

The majority (per Ngcobo J with Chaskalson CJ, Kriegler, Madala JJ, Du Plessis and Skweyiya  AJ concurring) held that section 20(1)(aA) was constitutional and valid. The minority (per  O’Regan and Sachs JJ with Langa DCJ, Ackermann and Goldstone JJ concurring) found that  section 20(1)(aA)18 brought about indirect discrimination. The court found section 20(1)(aA)  did not unfairly discriminate or limit constitutional rights. The Constitutional Court upheld the  brothel provisions and reversed the lower court’s ruling on the prostitution provisions.  Consequently, the appellants’ convictions and sentences were reinstated. The Constitutional Court declined to confirm the High Court’s invalidation of section 20(1)(aA), set aside the High  Court’s order, and dismissed the appeals. 

The court found that criminalising commercial sex and brothel-keeping is prima facie valid  under section 22(2)19 to protect quality of life.20 The court should not judge the law’s  effectiveness or substitute its own view for the legislature’s. Thus, the challenge based on  section 22 fails. 

The debate centered on whether section 20(1)(aA) unfairly discriminates against women. The State argued it targets both prostitutes and customers, while the appellants claimed it targets only prostitutes. However, even if it only applies to prostitutes, the section is gender-neutral as it penalises “any person” engaging in sex for reward, applying equally to males and females, thus not constituting unfair discrimination 21. 

The Court’s judgment contains support of the assumption that commercial sex breeds and encourages a variety of social ills such as violence, exploitation and trafficking in women and children, drug abuse, and the spread ofsexually transmitted diseases. Importantly, the judgment stated that a change in the legal status quo of sex work in South Africa22 would have to come from Parliament as the elected representatives of the people and not from the Court. 

ON OTHER CHALLENGES  

The arguments put forward by Jordan and Broodryk in respect of the violation of the rights to  human dignity, freedom of the person, privacy, and economic activity all failed. 

The argument that the prohibition on prostitution infringes the right to privacy is doubtful.  Unlike the National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others23, where the challenged offense violated rights against unfair discrimination and  dignity, this case does not involve intrusion into private intimacy and autonomy affecting  sexuality at its core. 

The court ruled that certain sections of the Sexual Offences Act should be interpreted to only  apply to those providing commercial sex, effectively limiting the scope of the law. Although  the court found section 20(1)(aA) to be inconsistent with the Constitution and invalid, it  suspended the declaration of invalidity for 30 months to allow for potential legislative reform.  Ultimately, the court dismissed the appeals and upheld the convictions and sentences  of the appellants. 

9. Legal reasoning/ Ratio decidenti 

Item 17 of Schedule 624 of the Constitution dictates that pending proceedings are governed by  the interim Constitution unless justice requires otherwise. Generally, disputes are decided  based on the law in force at the time of the alleged infringement. Retroactive application of the  Constitution is only permissible if the interests of justice demand it. The appellants’  constitutional challenges in the High Court were based on the interim Constitution, which was  in effect when the events occurred. 

While all parties agreed that the interim Constitution should govern these proceedings, the High  Court incorrectly applied the current Constitution. The High Court should have applied the  interim Constitution, which was in effect when the events occurred. Typically, this procedural  error would lead to a rejection of the High Court’s order. The substantive provisions concerning  discrimination within in section 825 of the interim Constitution and section 926 are substantially  equivalent. Consequently, the High Court’s determination of discriminatory impact remains  valid, irrespective of the constitutional framework applied. Moreover, the parties did not contest the application of the interim Constitution in this context. Therefore, the analysis can  proceed under the auspices of the interim Constitution. 

Consequently, the High Court’s conclusion regarding the discriminatory nature of section  20(1)(aA) remains valid regardless of which constitution was applied. Furthermore, the parties  did not dispute the applicability of the interim Constitution in this context. Therefore, we can  proceed under the framework of the interim Constitution. 

The law distinguishes between prostitutes and customers because they play different roles in  the commercial sex trade. Prostitutes are in the business of commercial sex, while customers  seek services occasionally. The law targets the merchant (prostitute) to curb commercial sex, a  common approach in statutes. Both prostitutes and customers are guilty of criminal conduct  and liable to the same punishment27. The law aims to prohibit commercial sex, not protect  customers. As such, customers can be liable as accessories, similar to the bribery case in S v  Kellner28, and face the same penalties as prostitutes under the Riotous Assemblies Act29. 

The Sexual Offences Act30 uniformly to both sex workers and clients, criminalising all parties  involved in sex-for-sale transactions. This legislation is characterized by it is gender-neutral approach, targeting both buyers and sellers equally, with the overarching goal of addressing  and combating prostitution. The differential treatment within the Act does not constitute unfair  discrimination, as the stigma associated with prostitution arises from societal attitudes rather  than legal frameworks. Consequently, both male and female sex workers experience stigma  based on their conduct rather than their gender. This underscores the Act’s intention to promote  equality in its application while addressing the complexities surrounding prostitution. The fact  that more females engage in prostitution does not make the law discriminatory against women. 

A law that punishes both sex workers and clients equally is not discriminatory just because  more women are prosecuted. Any disparity in enforcement is an issue of law application, not a  constitutional defect in the law itself. 

10. Conclusion

The South African Constitutional Court judgment in S v Jordan (2002) upheld laws  criminalising sex work, ruling they do not violate equality rights as they apply equally to clients  and sex workers. This decision significantly impacted the legal landscape, thwarting  decriminalization efforts and perpetuating challenges for sex workers, while continuing to  influence debates on legal transformation amid societal and political opposition.

LIST OF REFERENCES  

CASE LAW 

Jordan and Others v S and Others 2002 (11) BCLR 1117 (CC) 

S v Kellner 1963 (2) SA 435 (A) 

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and  Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October  1998) 

STATUTES 

Act 17 of 1956 Riotous Assemblies Act 

Act 71 of 1968 Dangerous Weapons Act 

Date of commencement 07/03/1968 – Assented to Date 20/06/1968 

s 3(3)Sub-s. (3) amended by s. 3 of Act No. 29 of 1990 and substituted by s. 3 of Act No. 156  of 1993. 

Amended by General Law Amendment Act, No. 102 of 1972 with effect from 1 August,  1972 

Amended by Dangerous Weapons Amendment Act, No. 29 of 1990 

Amended by Dangerous Weapons Amendment Act, No. 156 of 1993 

Amended by Abolition of Corporal Punishment Act, No. 33 of 1997 with effect from 5  September, 1997 

Act 23 of 1957 Sexual Offences Act (formerly the Immorality Act) 

Section 1 of the Act 

The definition of “‘brothel’ includes any house or place kept or used for purposes of  prostitution or for persons to visit for the purpose of having unlawful carnal intercourse or for  any other lewd or indecent purpose.” 

Section 2 of the Act 

Keeping a brothel “Any person who keeps a brothel shall be guilty of an offence.” Section 3 of the Act 

Certain persons deemed to keep a brothel. – The following persons shall for the purposes of  section two be deemed to keep a brothel: 

(b) any person who manages or assists in the management of any brothel;  

(c) any person who knowingly receives the whole or any share of any moneys taken in a  brothel”.  

Section 20(1) (aA) of the Act  

“Persons living on earnings of prostitution or committing or assisting in commission of  indecent acts. – (1) Any person who – . . . (aA) has unlawful carnal intercourse, or commits an  act of indecency, with any other person for reward; . . . shall be guilty of an offence.” 

s 20(1)(aA)Para. (aA) inserted by s. 7 (a) of Act No. 2 of 1988. 

Amended by Immorality Amendment Act, No. 68 of 1967 

Amended by Immorality Amendment Act, No. 57 of 1969 

Amended by Immorality and Prohibition of Mixed Marriages Amendment Act, No. 72 of  1985 

Amended by Immorality Amendment Act, No. 2 of 1988 

Amended by Criminal Law Amendment Act, No. 4 of 1992 

Amended by General Law Amendment Act, No. 139 of 1992 with effect from 7 August,  1992 

Amended by General Law Fourth Amendment Act, No. 132 of 1993 with effect from 1  December, 1993 

Act 200 of 1993 Constitution of the Republic of South Africa 

Section 2 “establishes the supremacy of the Constitution, declaring it the supreme law of the  land” 

Section 8 Application “Bill of Rights applies to all law, and binds the legislature, the  

executive, the judiciary and all organs of state/ natural person and juristic person if  applicable” 

Section 9 “guarantees the right to equality, ensuring that everyone is equal before the law and  has the right to equal protection and benefit of the law. “ 

Section 9(1) “Everyone is equal before the law and has the right to equal protection and  benefit of the law. “ 

Section 9(3) “ The state may not unfairly discriminate directly or indirectly against anyone on  one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social  origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,  language and birth.” 

Freedom and security of the person 

Section 12(1)(a) “1. Everyone has the right to freedom and security of the person, which  includes the right a. not to be deprived of freedom arbitrarily or without just cause” 

Section 12(2) “not to be detained without trial.“ 

Section 13 “the right to privacy” 

Section 22: 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.

Contains a broad, but by no means transparent, formulation of the right to economic activity.  It reads:  

(1) every person shall have the right of freely to engage in economic activity and to  pursue a livelihood anywhere in the national territory. 

(2) sub-section (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 and equal opportunities  for all, provided such measures are justifiable in an open and democratic society  based on freedom and equality. 

Section 36(1) Limitation of rights “The rights in the Bill of Rights may be limited only in  terms of law of general application to the extent that the limitation is reasonable and  justifiable in an open and democratic society based on human dignity, equality and freedom,  taking into account all relevant factors,” 

Section 172(2)(a) “Supreme Court of Appeal or High Court can declare an Act of Parliament,  a provincial Act, or the President’s conduct to be constitutionally invalid, but this declaration  only has force if confirmed by the Constitutional Court. “ 

Schedule 6 item 17 “guarantees that everyone has the right to assemble, demonstrate, picket,  and present petitions peacefully and without weapons” 

Schedule 6 item 2 “A constitutional institution established in terms of the previous  Constitution continues to function in terms of the legislation applicable to it, and anyone  holding office as a commission member, a member of the board of the Reserve Bank or the  Pan South African Language Board, the Public Protector or the Auditor”

Reference(S):

1 Act 23 of 1957 Sexual Offences Act (formerly the Immorality Act) 

2 Section 20(1) (aA) of the Act “Persons living on earnings of prostitution or committing or assisting in  commission of indecent acts. – (1) Any person who – . . . (aA) has unlawful carnal intercourse, or commits an act  of indecency, with any other person for reward; . . . shall be guilty of an offence.

3 Section 3 of the Act Certain persons deemed to keep a brothel. – The following persons shall for the purposes  of section two be deemed to keep a brothel:  

4 Section 2 of the Act Keeping a brothel “Any person who keeps a brothel shall be guilty of an offence.”

5 Act 23 of 1957 Sexual Offences Act Section 3 

6 Section 22: 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.

7 Section 9 of the Constitution of South Africa reads as follows : “guarantees the right to equality, ensuring that  everyone is equal before the law and has the right to equal protection and benefit of the law. “

8 Section 12 of the constitution of South Africa Freedom and security of the person 

12(1)(a) “ Everyone has the right to freedom and security of the person, which includes the right a. not to be  deprived of freedom arbitrarily or without just cause” 

9 Section 13 of the Constitution of South Africa “the right to privacy” 

10 Section 22: Contains a broad, but by no means transparent, formulation of the right to economic activity. It  reads:  

(1) every person shall have the right of freely to engage in economic activity and to pursue a livelihood  anywhere in the national territory. 

11 (2) sub-section (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 and equal opportunities for all, provided such measures are justifiable in an open and  democratic society based on freedom and equality. 

12 n9 

13n 2 

14 n10

15 n2 

16 Ibid 

17 Jordan and Others v S and Others 2002 (11) BCLR 1117 (CC) 

18 Section 20(1) (aA) of the Act “Persons living on earnings of prostitution or committing or assisting in  commission of indecent acts. – (1) Any person who – . . . (aA) has unlawful carnal intercourse, or commits an act  of indecency, with any other person for reward; . . . shall be guilty of an offence.

19 Section 22 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. 

20 Section 22 (2) sub-section (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 and equal opportunities for all, provided such measures are justifiable in an  open and democratic society based on freedom and equality. 

21 Section 9(3) “ The state may not unfairly discriminate directly or indirectly against anyone on one or more  grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual  orientation, age, disability, religion, conscience, belief, culture, language and birth.” 

22 Section 1 Definition Act 23 of 1957 Sexual Offences 

23 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98)  [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998) 

24 Schedule 6 item 17 “guarantees that everyone has the right to assemble, demonstrate, picket, and present  petitions peacefully and without weapons” 

25Section 8 Application “Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary  and all organs of state/ natural person and juristic person if applicable” 

26 Section 9 “guarantees the right to equality, ensuring that everyone is equal before the law and has the right to  equal protection and benefit of the law. “

27 Act 23 of 1957 Sexual Offences Act Section 1 of the Act  

28 S v Kellner 1963 (2) SA 435 (A) 

29 Act 17 of 1956 Riotous Assemblies Act 

30 Act 23 of 1957 Sexual Offences Act (formerly the Immorality Act)