S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642 (CC); 2002 (11) BCLR 1117 (CC); 2002 (2) SACR 499 (CC) (9 October 2002)

S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642 (CC); 2002 (11) BCLR 1117 (CC); 2002 (2) SACR 499 (CC) (9 October 2002)

The Constitutional Court held that section 20(1)(aA) of the Sexual Offences Act, which criminalises sex for reward, constitutes indirect and unfair discrimination against women, as it penalises prostitutes (predominantly female) but not clients (predominantly male), thereby reinforcing harmful gender stereotypes and social stigma. The majority found that this discrimination is not justified under the Constitution. However, the Court concluded that criminalisation of prostitution does not violate the rights to dignity, privacy, freedom, or economic activity in a manner that is unjustifiable, as the limitation is reasonable and Parliament has wide discretion to regulate commercial sex. The...

Citation
[2002] ZACC 22
Parties
Appellant: Ellen Jordan; Appellant: Louisa Johanna Francina Broodryk; Appellant: Christine Louise Jacobs; Respondent: The State; Applicant: Sex Workers Education and Advocacy Task Force; Applicant: Centre for Applied Legal Studies; Applicant: Reproductive Health Research Unit; Applicant: Commission for Gender Equality; Applicant: Pieter Crous and Menelaos Gemeliaris; Applicant: Andrew Lionel Phillips
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
9 October 2002
Case Number
CCT31/01
Procedural Posture
Constitutional Review / Judgment on Confirmation of Invalidity and Direct Appeal
Outcome
Section 20(1)(aA) of the Sexual Offences Act is declared inconsistent with the Constitution and invalid, but the declaration is suspended for 30 months. The appeals of the first and second appellants are dismissed, and the convictions and sentences are confirmed.
Judges
Ngcobo, O'Regan, Sachs, Chaskalson, Kriegler, Madala, Du Plessis, Skweyiya, Langa, Ackermann, Goldstone
Legal Topics
Gender Equality, Unfair Discrimination, Sexual Offences Act, Right to Privacy, Right to Economic Activity, Limitation of Rights
Constitutional Law Criminal Law Gender Equality Unfair Discrimination Sexual Offences Act Right to Privacy Right to Economic Activity Limitation of Rights

Case Brief

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Parties

Ellen Jordan

Appellant

Louisa Johanna Francina Broodryk

Appellant

Christine Louise Jacobs

Appellant

The State

Respondent

Sex Workers Education and Advocacy Task Force

Applicant

Centre for Applied Legal Studies

Applicant

Reproductive Health Research Unit

Applicant

Commission for Gender Equality

Applicant

Pieter Crous and Menelaos Gemeliaris

Applicant

Andrew Lionel Phillips

Applicant

Procedural Posture

Constitutional Review / Judgment on Confirmation of Invalidity and Direct Appeal

Legal Issues

  1. 1 Does section 20(1)(aA) of the Sexual Offences Act unfairly discriminate against women?
  2. 2 Does the criminalisation of prostitution violate the rights to dignity, privacy, freedom, and economic activity under the interim Constitution?
  3. 3 Are the brothel provisions (sections 2, 3(b), and 3(c)) of the Sexual Offences Act unconstitutional?

Ratio Decidendi

The Constitutional Court held that section 20(1)(aA) of the Sexual Offences Act, which criminalises sex for reward, constitutes indirect and unfair discrimination against women, as it penalises prostitutes (predominantly female) but not clients (predominantly male), thereby reinforcing harmful gender stereotypes and social stigma. The majority found that this discrimination is not justified under the Constitution. However, the Court concluded that criminalisation of prostitution does not violate the rights to dignity, privacy, freedom, or economic activity in a manner that is unjustifiable, as the limitation is reasonable and Parliament has wide discretion to regulate commercial sex. The...

Court Disposition

Section 20(1)(aA) of the Sexual Offences Act is declared inconsistent with the Constitution and invalid, but the declaration is suspended for 30 months. The appeals of the first and second appellants are dismissed, and the convictions and sentences are confirmed.

Orders

  • Section 20(1)(aA) of the Sexual Offences Act, 23 of 1957 is declared inconsistent with the Constitution and invalid.
  • The order of invalidity is suspended for 30 months from the date of judgment.