Jordan and Others v The State

On 20 August 1996, a police officer entered a brothel owned by the first appellant in Pretoria. He paid R250 to the second appellant (a salaried employee) and received a pelvic massage from the third appellant (a prostitute/sex worker). The three appellants admitted contravening the Sexual Offences Act 23 of 1957, which criminalises providing sex for reward and brothel-keeping. They were convicted and sentenced 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) (criminalising sex for reward) unconstitutional but upheld sections 2, 3(b) and 3(c) (the brothel provisions). The matter came to the Constitutional Court for confirmation of the order of invalidity and on direct appeal regarding the brothel provisions.

• Whether section 20(1)(aA) of the Sexual Offences Act constitutes unfair discrimination on the grounds of gender in violation of section 8(2) of the interim Constitution
• Whether section 20(1)(aA) infringes the right to human dignity (section 10)
• Whether section 20(1)(aA) infringes the right to freedom and security of the person (section 11)
• Whether section 20(1)(aA) infringes the right to privacy (section 13)
• Whether section 20(1)(aA) infringes the right to freely engage in economic activity (section 26)
• Whether sections 2, 3(b) and 3(c) dealing with brothel-keeping are unconstitutional
• Whether the interim Constitution or final Constitution applies to these proceedings
• The proper interpretation of section 20(1)(aA) - whether it criminalises only the prostitute or also the customer
• Whether any limitation of constitutional rights is justifiable under section 33 of the interim Constitution

The appeals by the first and second appellants were dismissed. The Court declined to confirm the order of invalidity made by the High Court regarding section 20(1)(aA). The order made by the High Court was set aside and replaced with an order dismissing the appeals. The convictions and sentences imposed by the Magistrate's Court were reinstated. (Note: Given the split decision, Ngcobo J's judgment refusing to confirm the invalidity prevailed as the majority position.)

The majority (per Ngcobo J) held: (1) Section 20(1)(aA) is gender-neutral and does not directly discriminate as it applies to both male and female prostitutes. (2) The provision does not constitute unfair indirect discrimination merely because more women than men are prostitutes - the differentiation is between merchants and customers, not between genders. (3) Customers commit offences at common law and under the Riotous Assemblies Act, making them liable to the same punishment as prostitutes. (4) Any stigma attaching to prostitutes arises from social attitudes and their own conduct, not from the law. (5) The provision does not violate dignity, as any diminution arises from engaging in prostitution itself, not from the law. (6) The provision does not violate freedom and security as any invasion follows from breach of a constitutional law. (7) The provision is a measure designed to promote quality of life under section 26(2) and is justifiable in an open and democratic society. The minority (per O'Regan and Sachs JJ) held: (1) Section 20(1)(aA) should be interpreted to criminalise only commercial sex/prostitution, not all sexual intercourse for reward. (2) The provision criminalises only the prostitute, not the customer. (3) This constitutes indirect discrimination on grounds of gender because prostitutes are overwhelmingly women and customers overwhelmingly men, and the law reinforces harmful sexual stereotypes and double standards about male and female sexuality. (4) This discrimination is unfair as it perpetuates patterns of gender inequality which the Constitution seeks to eradicate. (5) While the provision limits privacy, this limitation is justified as commercial sex lies at the periphery of privacy rights. (6) However, the gender discrimination cannot be justified as the state advanced no legitimate purpose for criminalising primarily the prostitute rather than equally criminalising the customer.

Several important obiter observations were made: (1) O'Regan and Sachs JJ noted that nothing in their judgment should be understood as expressing an opinion on the desirability (as opposed to constitutionality) of the legislation - these are decisions for the legislature. (2) The minority judgment observed that decriminalisation is a valid option for Parliament but not constitutionally required - Parliament may choose to criminalise, regulate or abstain from regulating prostitution. (3) The Court noted the wide range of approaches to prostitution in open and democratic societies worldwide, from full prohibition to licensed regulation. (4) Both judgments emphasized that all arrested persons, including prostitutes, must be treated with dignity by law enforcement - any invasion of dignity beyond that ordinarily implied by arrest cannot be attributed to the statute but to improper enforcement. (5) O'Regan and Sachs JJ observed that the overall purpose of the Sexual Offences Act (controlling commercial sex) remains legitimate despite its formulation in language reminiscent of pre-constitutional morality. (6) The minority noted the importance of comprehensive legislative review rather than piecemeal reform, and that effective regulation requires both legal controls and social strategies. (7) The Court discussed the 'shifting purpose' doctrine from Canadian and US jurisprudence, noting that in South Africa's transformative context, legislation should be interpreted according to its current purpose if reasonably capable of bearing a constitutional meaning, not forever bound by its original apartheid-era purpose.

This case represents a landmark decision on the constitutionality of South Africa's prostitution laws and their intersection with gender equality. It illustrates the Court's approach to indirect discrimination, particularly where provisions appear gender-neutral but have a disproportionate impact on women. The case demonstrates significant judicial disagreement on how to balance state interests in regulating commercial sex against individual rights to equality, dignity, privacy and economic activity. The split decision reveals different approaches to constitutional interpretation, the role of social context in assessing discrimination, and the appropriate remedies for unconstitutional legislation. The case is also important for its discussion of the 'shifting purpose' doctrine and how legislation enacted under apartheid should be interpreted under the new constitutional order. It addresses the proper interpretation of criminal statutes to avoid constitutional invalidity and the circumstances in which courts should suspend orders of invalidity to allow legislative correction.