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.
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.
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.