''S v Jordan and Others'' is a decision of the

Constitutional Court of South Africa The Constitutional Court of South Africa is the supreme constitutional court established by the Constitution of South Africa, and is the apex court in the South African judicial system, with general jurisdiction. The Court was first establ ...

which confirmed the constitutionality of statutory prohibitions on brothel-keeping and

prostitution Prostitution is a type of sex work that involves engaging in sexual activity in exchange for payment. The definition of "sexual activity" varies, and is often defined as an activity requiring physical contact (e.g., sexual intercourse, no ...

. It was handed down on 9 October 2002 with a majority judgment by Justice Sandile Ngcobo. Hearing a challenge to provisions of the

Sexual Offences Act, 1957 The Sexual Offences Act, 1957 (Act No. 23 of 1957, originally the Immorality Act, 1957) is an act of the Parliament of South Africa which, in its current form, prohibits prostitution, brothel-keeping and procuring, and other activities related ...

, the court held unanimously that it is constitutional to criminalise brothel-keeping. However, the bench split six-to-five on the constitutionality of section 20(1)(aA) of the Act, which criminalises prostitution. Writing on behalf of the minority, Justices

Kate O'Regan Catherine "Kate" O'Regan (born 17 September 1957) is a former judge of the Constitutional Court of South Africa. From 2013 to 2014 she was a commissioner of the Khayelitsha Commission and is now the inaugural director of the Bonavero Institute ...

and

Albie Sachs Albert "Albie" Louis Sachs (born 30 January 1935) is a South African lawyer, activist, writer, and former judge appointed to the first Constitutional Court of South Africa by Nelson Mandela. Early life and education Albie Sachs was born in ...

argued that the prostitution prohibition discriminated indirectly but unfairly against women, while the majority dismissed this view on the grounds that both men and women are barred from conducting sex work.

Background

The applicants, three women, were arrested in 1996 at their workplace, a

brothel A brothel, strumpet house, bordello, bawdy house, ranch, house of ill repute, house of ill fame, or whorehouse is a place where people engage in Human sexual activity, sexual activity with prostitutes. For legal or cultural reasons, establis ...

Pretoria Pretoria ( ; ) is the Capital of South Africa, administrative capital of South Africa, serving as the seat of the Executive (government), executive branch of government, and as the host to all foreign embassies to the country. Pretoria strad ...

. Charged in the

Magistrate's Court A magistrates' court is a lower court where, in several jurisdictions, all criminal proceedings start. Also some civil matters may be dealt with here, such as family proceedings. Courts * Magistrates' court (England and Wales) * Magistrates' cour ...

, they were convicted of contraventions of the

– the brothel's owner and receptionist were convicted of keeping a brothel, an offence under section 2, and a sex worker was convicted of conducting indecent sexual acts for reward, an offence under section 20(1)(aA). In particular, the sex worker had been paid R250 to administer a pelvic massage to an undercover policeman. Though the women did not dispute their involvement in sex work, they appealed their convictions to the

High Court of South Africa The High Court of South Africa is a superior court of law in South Africa. It is divided into nine provinces of South Africa, provincial divisions, some of which sit in more than one location. Each High Court division has general jurisdiction ov ...

, contending that the relevant provisions of the Sexual Offences Act are unconstitutional. In August 2001, the High Court's

Transvaal Provincial Division The Gauteng Division of the High Court of South Africa is a superior court of law which has general jurisdiction over the South African province of Gauteng and the eastern part of North West province. The main seat of the division is at Pretoria, ...

found in the appellants' favour on the prostitution provision, finding that it is unconstitutional to criminalise prostitution. However, the challenge to the brothel-keeping provisions was dismissed. The matter went to the

, which was charged with confirming the invalidity of the prostitution provision; in addition, the first and second women appealed the unfavourable finding on the brothel-keeping provisions. The state opposed both applications, represented by Wim Trengove SC; the appellants were represented by David Unterhalter SC, and their applications were supported by several amici curiae. Argument was heard from 5 to 6 March 2002, and judgment was handed down on 9 October 2002.

Judgment

Brothel-keeping

Unlike the High Court, the Constitutional Court decided the constitutionality question with reference to the Interim Constitution, which had prevailed at the time of the offence, rather than with reference to the 1996 Constitution. On this basis, the court agreed unanimously to uphold the High Court's finding that the prohibition on brothel-keeping is constitutionally compliant, thereby dismissing the appeals of the first and second appellants.

Prostitution

However, the bench divided six-to-five on the constitutionality of the prohibition on prostitution. The minority judgment was co-written by Justices

and

, with the concurrence of Deputy Chief Justice

Pius Langa Pius Nkonzo Langa SCOB (25 March 1939 – 24 July 2013) was Chief Justice of South Africa from June 2005 to October 2009. Formerly a human rights lawyer, he was appointed as a puisne judge of the Constitutional Court of South Africa upon its in ...

and Justices

Laurie Ackermann Lourens Wepener Hugo "Laurie" Ackermann (14 January 1934 – 25 May 2024) was a South African judge who served on the Constitutional Court of South Africa from 1994 to 2004. Appointed to the inaugural court by Nelson Mandela, he is best known fo ...

and

Richard Goldstone Richard Joseph Goldstone (born 26 October 1938) is a South African retired judge who served in the Constitutional Court of South Africa from July 1994 to October 2003. He joined the bench as a judge of the Supreme Court of South Africa, first i ...

. Although the minority dismissed the appellants' arguments from the rights to human dignity, freedom of person, privacy, and economic activity, respectively, the minority was persuaded by the argument that the prostitution provision indirectly brought about unfair

discrimination Discrimination is the process of making unfair or prejudicial distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong, such as race, gender, age, class, religion, or sex ...

, in violation of the right to equality in Section Nine of the Constitution. O'Regan and Sachs held that insofar as the law makes the prostitute (typically a woman) the primary offender and her patron (typically man) nothing more than an

accomplice Aiding and abetting is a legal doctrine related to the guilt of someone who aids or abets (encourages, incites) another person in the commission of a crime (or in another's suicide). It exists in a number of different countries and generally al ...

, it reinforces sexist double standards and perpetuates

gender stereotypes A gender role, or sex role, is a social norm deemed appropriate or desirable for individuals based on their gender or sex. Gender roles are usually centered on conceptions of masculinity and femininity. The specifics regarding these gendered ...

in a manner inconsistent with the constitutional commitment to

gender equality Gender equality, also known as sexual equality, gender egalitarianism, or equality of the sexes, is the state of equal ease of access to resources and opportunities regardless of gender, including economic participation and decision-making, an ...

. On these grounds, the minority would have confirmed the High Court's order that section 20(1)(aA) of the Sexual Offences Act is unconstitutional and invalid. However, writing for the six-person majority, Justice Sandile Ngcobo argued that the criminalisation of prostitution is not discriminatory because the law criminalises prostitution by men as well as by women. Moreover, the majority agreed with the minority (though for slightly different reasons) that the appellants' other constitutional arguments failed. It therefore held that the prohibition is constitutional; the court therefore declined to confirm the High Court's order and instead set it aside, dismissing the women's applications and reinstating their criminal sentences. Ngcobo's opinion was joined by Chief Justice

Arthur Chaskalson Arthur Chaskalson SCOB, (24 November 1931 – 1 December 2012) was President of the Constitutional Court of South Africa from 1994 to 2001 and Chief Justice of South Africa from 2001 to 2005. Chaskalson was a member of the defence team in the ...

, Justices

Johann Kriegler Johann Christiaan Kriegler (born 29 November 1932) is a retired South African judge who served in the Constitutional Court of South Africa from February 1995 to November 2002. Formerly a practising silk in Johannesburg, he joined the bench as a ...

and Tholie Madala, and Acting Justices Ben du Plessis and

Thembile Skweyiya Thembile Lewis Skweyiya (17 June 1939 – 1 September 2015) was a South African lawyer and judge who served on the Constitutional Court of South Africa between February 2004 and May 2014. He rose to prominence as a civil rights lawyer during ap ...

Reception

The majority judgment was unpopular among many

feminist Feminism is a range of socio-political movements and ideology, ideologies that aim to define and establish the political, economic, personal, and social gender equality, equality of the sexes. Feminism holds the position that modern soci ...

activists and some legal commentators. Ntombizozuko Dyani-Mhango observed that the majority judgment's deference to the political branches was characteristic of Ngcobo's jurisprudence.

References