S v Jordan and Others

The appellants were charged under the Sexual Offences Act 23 of 1957 after a police officer entered a Pretoria brothel, paid for sexual services, and received a sexual act. The first appellant owned the brothel, the second managed it, and the third provided sex for reward. They admitted contravening the Act but challenged the constitutionality of provisions criminalising prostitution and brothel-keeping. The Magistrates’ Court convicted and sentenced them. On appeal, the Pretoria High Court declared section 20(1)(aA), which criminalised sex for reward, unconstitutional, but upheld the brothel-keeping provisions. The declaration of invalidity was referred to the Constitutional Court for confirmation, and the appellants also appealed against their convictions under the brothel provisions.

The Constitutional Court declined to confirm the High Court’s order declaring section 20(1)(aA) unconstitutional, set aside the High Court’s order, dismissed the appeals, and reinstated the convictions and sentences imposed by the Magistrates’ Court.

This case is a leading Constitutional Court authority on the constitutionality of criminalising prostitution in South Africa. It affirms legislative discretion to prohibit commercial sex, clarifies the application of equality and privacy rights in the context of sex work, and confirms that gender-neutral criminal provisions do not amount to unfair discrimination merely because they disproportionately affect women.