Jordan and Others v The State

On 20 August 1996, a police officer entered a brothel owned by the first appellant in Pretoria. The second appellant, a salaried employee, received R250 from the officer, and the third appellant, a sex worker, provided a pelvic massage. All three appellants admitted contravening the Sexual Offences Act 23 of 1957, which criminalises providing sex for reward (section 20(1)(aA)) and brothel-keeping (sections 2, 3(b) and (c)). They did not resist conviction in the Magistrate's Court but claimed the relevant provisions were unconstitutional. They appealed to the Pretoria High Court, which declared section 20(1)(aA) unconstitutional but upheld the brothel provisions. The matter came to the Constitutional Court for confirmation of invalidity and appeal.

• Whether the interim Constitution or the final Constitution applies to the proceedings
• Whether section 20(1)(aA) of the Sexual Offences Act violates the right to freely engage in economic activity (section 26 of the interim Constitution)
• Whether section 20(1)(aA) constitutes unfair discrimination on the grounds of gender (section 8(2) of the interim Constitution)
• Whether section 20(1)(aA) violates the right to human dignity (section 10)
• Whether section 20(1)(aA) violates the right to freedom and security of the person (section 11)
• Whether section 20(1)(aA) violates the right to privacy (section 13)
• Whether the limitation of any rights is justifiable under section 33 of the interim Constitution
• Whether sections 2, 3(b) and (c) (brothel provisions) are unconstitutional
• What remedy is appropriate if section 20(1)(aA) is found unconstitutional

The Court declined to confirm the order of invalidity made by the High Court (per minority judgment). The majority would have confirmed invalidity based on gender discrimination but suspended the declaration of invalidity for 30 months to allow Parliament to correct the defect. The appeals by all three appellants were dismissed and their convictions and sentences in the Magistrate's Court were confirmed. Section 20(1)(aA) was found to apply only to commercial sex (purposive interpretation). Sections 2, 3(b) and (c) were found constitutional.

Per majority (O'Regan and Sachs JJ): Section 20(1)(aA) of the Sexual Offences Act constitutes unfair indirect discrimination on the grounds of gender in violation of section 8(2) of the interim Constitution. Although the provision is gender-neutral on its face, it has disparate impact on women (who constitute the overwhelming majority of prostitutes) and reinforces harmful sexual stereotypes and double standards by criminalising the prostitute as primary offender but not the customer. The differentiation tracks and reinforces patterns of gender inequality which the Constitution is committed to eradicating. This unfair discrimination cannot be justified under section 33 because the state advanced no legitimate purpose for criminalising primarily the prostitute rather than equally criminalising the customer. However, the limitation of the right to privacy (section 13) occasioned by criminalising commercial sex is justifiable, as privacy expectations are attenuated where sex is commercialised and indiscriminate, and the state may legitimately seek to regulate prostitution to protect quality of life. Per minority (Ngcobo J): Section 20(1)(aA) does not constitute unfair discrimination because: (1) it is gender-neutral, applying to both male and female prostitutes; (2) the differentiation between prostitute (merchant) and customer is rational and commonly found in legislation; (3) customers remain criminally liable as accomplices under common law and the Riotous Assemblies Act, with equal punishment; and (4) any stigma arises from social attitudes toward the conduct, not from the law itself. The provision does not violate privacy, dignity, freedom or economic activity rights.

Per majority: (1) The purpose of legislation is not fixed immutably at the time of enactment - pre-constitutional legislation can be interpreted as serving new constitutional purposes if reasonably capable of such interpretation, even if original purpose was constitutionally problematic. (2) The Constitution does not prohibit the state from enforcing morality - it embodies an objective normative value system - but the morality enforced must be grounded in constitutional values, not sectarian moral views. (3) Open and democratic societies adopt widely varying approaches to prostitution (prohibition, regulation, tolerance), indicating this is appropriately a matter for legislative choice rather than constitutional mandate. (4) While criminalisation may not be the most effective way to address social problems associated with prostitution, courts should not second-guess legislative policy choices where they fall within constitutional bounds. (5) The Law Commission could usefully provide comprehensive recommendations on regulation of commercial sex. (6) Decriminalisation is a valid legislative option but not constitutionally required. (7) Whatever approach is taken, sex workers retain constitutional rights to dignity and must be treated with respect by law enforcement. Per minority (Ngcobo J): (1) Social attitudes toward prostitutes arise from the nature of the conduct, not from the law - the law cannot be blamed for social stigma. (2) The assertion that prostitution criminalisation discriminates against women because more prostitutes are women is as unpersuasive as arguing robbery laws discriminate against men because more robbers are men. (3) Arguments about whether criminalisation or regulation better serves social policy must be addressed to the legislature, not courts - courts are concerned with constitutionality, not desirability of legislation.

This case is significant in South African constitutional jurisprudence for several reasons: (1) It demonstrates a deeply divided Constitutional Court on issues of gender equality, privacy, and morality in the criminal law context. (2) It established important principles regarding indirect discrimination - even gender-neutral provisions can discriminate indirectly on grounds of sex where they have disparate impact along gender lines that reinforces existing patterns of inequality. (3) It illustrates the Court's approach to interpreting pre-constitutional legislation through the lens of constitutional values, applying the 'shifting purpose' doctrine to allow old laws to serve new constitutional purposes. (4) It demonstrates judicial restraint in areas of complex social policy, acknowledging that regulation of prostitution is primarily a matter for legislative choice in open and democratic societies. (5) It addresses the scope of the right to privacy under the interim Constitution, distinguishing between the 'inner sanctum' and the 'penumbra' of privacy rights. (6) It shows the Court's approach to remedies, using suspension of invalidity to encourage comprehensive parliamentary reform rather than immediate striking down. The case remains controversial and highlights the tension between competing approaches to prostitution - as exploitation of women versus as legitimate work; as moral transgression versus as private conduct; and between criminalisation, regulation and decriminalisation.