Comment: 'Let's talk about sex, baby' — but not in the Constitutional Court: Some comments on the gendered nature of legal reasoning in the Jordan case

• Jurisdiction: South Africa
• Pages: 368-378
• Author: Usha Jivan
• Date: 24 May 2019
• Citation: (2004) 17 SACJ 368
• Published date: 24 May 2019

COMMENTS

`Let's talk about sex, baby' — but not in

the Constitutional Court: Some

comments on the gendered nature of

legal reasoning in the

Jordan

case

USHA JIVAN*

and

DEVINA PERUMAL**

Introduction

Sex work poses difficult questions. On its own it is hardly the most pressing

form of crime confronting the country. Crime statistics point to clear reasons

for the need for vigilant control. But is the criminal law the best available

means to deal with the world's oldest profession?

This problem vexed the Constitutional Court in

S v Jordan

2002 (6) SA 642

(CC), in which the constitutionality of ss 2, 3(b), 3(c) and 20(1)(aA) of the

Sexual Offences Act 23 of 1957 (hereinafter referred to as the Act) which

criminalizes the provision of sex for reward and brothel-keeping, were

considered.

Three appellants had been convicted in a lower court of statutory offences

in terms of the Act. They were arrested subsequent to a police trap and raid at

a brothel. The first appellant, who was the owner of the brothel, was charged

with a contravention of s 2 of the Act. The second appellant, who was a

salaried employee of the first appellant, was charged with a contravention of

s 2, read with ss 3

(b)

and 3(c) of the Act. The third appellant, being a sex

worker who worked at the brothel and who committed an act of indecency

with the police agent, was charged with a contravention of s 20(1) (aA) of

the Act.

The appeal on the validity of the relevant sections was determined in

accordance with the provisions of the Constitution of the Republic of South

Africa Act 200 of 1993 (the Interim Constitution). The appellants argued that

*



LLM (UNISA),

Attorney of the High Court of South Africa.

** BA (Hons) MA LLB (UND),

Advocate of the High Court of South Africa.

368

(2004) 17 SACJ 368

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