Reflecting on former Chief Justice Ngcobo’s approach to Gender Equality : revisiting the Jordan and Volks judgments

• Date: 01 August 2017
• DOI: 10.10520/EJC-1033c9c5d7
• Pages: 1-33
• Published date: 01 August 2017
• Record Number: sapr1_v32_n1_2_a13
• Author: Ntombizozuko Dyani-Mhango

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https://doi.org/10.25159/2522-6800/3569

ISSN 2522-6800 (Online) ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 32 | Number 1 and 2 | 2017 | pp.1–33

ARTICLE

Reecting on Former Chief Justice Ngcobo’s Approach

to Gender Equality: Revisiting the Jordan and Volks

Judgments

Ntombizozuko Dyani-Mhango*

Associate Professor, University of the Witwatersrand, Johannesburg

Email: Ntombizozuko.Dyani-Mhango@wits.ac.za

ABSTRACT

More than a decade ago, Ngcobo CJ upset gender scholars and activists in two judgments

for failing to consider the interface between social context and legal rules in relation to

women as sex workers, in one instance, and those who are in unmarried permanent life

partnerships, in another. These two judgments were the topics of much scholarly work.

Further, there have been recent legal developments in relation to these two issues. This

article examines these criticisms with a view to reecting on Ngcobo CJ’s jurisprudence on

gender equality in relation to Jordan and Volks. The aim is not to determine the validity or

invalidity of these claims, but to highlight the issues raised in order to discuss Ngcobo CJ’s

legacy in relation to these two judgments. The latest developments since the two cases will

also be examined. The article emphasises the signicant role of the Legislature and argues

that the Legislature has a constitutional duty to protect the rights enshrined in the Bill of

Rights: the time has arrived for it to legislate on these issues.

Keywords: gender equality; sex worker; permanent life partner; choice argument; Jordan;

Volks

* I would like to thank the blind peer reviewers for their critical comments on the earlier draft of this

article. I would also like to acknowledge Mtende Mhango for his critical eye and support during the

writing stages of the article. All errors are mine.

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Dyani-Mhango Chief Justice Ngcobo’s Approach to Gender Equality

Introduction

Chief Justice Sandile Ngcobo penned more than thirty-four judgments during his tenure

at the Constitutional Court (‘the Court’). Many of these judgments continue to be

cited as leading authority that shape South African jurisprudence today.1 His landmark

judgment in Doctors for Life2 continues to shape the law on the separation of powers

and the framework for direct access to the Court.3 It is fair to say that no separation

of powers case in South Africa post 2006 is decided without reference to Ngcobo J’s

judgment in Doctors for Life. Equally, his minority judgment in Glenister II4 continues

to have a great impact on South African jurisprudence.5

However, two of his judgments, Jordan6 and Volks,7 have been criticised by gender

scholars.8 This article examines these criticisms with a view to reect on Ngcobo CJ’s

1 For example, Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC)

(‘Doctors for Life’); Homann v South African Airways 2001 (1) SA 1 (CC) (‘Homann’); Masetlha v

President of the Republic of South Africa 2008 (1) SA 566 (CC) (‘Masetlha’); Albutt v Centre for the

Study of Violence and Reconciliation 2010 (3) SA 293 (CC) (‘Albutt’); Bato Star Fishing (Pty) Ltd v

Minister of Environmental Aairs and Tourism 2004 (4) SA 490 (CC) (‘Bato Star’).

2 Doctors for Life ibid.

3 See, for example, National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) at

para 63; International Trade Administration Commission v SCAW South Africa (Pty) Ltd (CCT 59/09)

[2010] ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) (9 March 2010); and Economic

Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC) (‘Economic Freedom

Fighters’).

4 Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) (‘Glenister II’).

5 See Economic Freedom Fighters (n 3), where the Court relied on a principle articulated by Justice

Ngcobo’s to determine the question of whether the National Assembly breached its constitutional

obligation to hold the President to account; and Democratic Alliance v Minister of International

Relations and Cooperation [2017] ZAGPPHC 53.

6 S v Jordan (Sex Workers Education and Advocacy Task Force & Others as Amici Curiae) 2002 (6) SA

642 (CC) (‘Jordan’).

7 Volks NO v Robinson 2005 (5) BCLR 446 (CC).

8 See, for example, Elsje Bonthuys, ‘Institutional Openness and Resistance to Feminist Arguments:

The Example of the South African Constitutional Court’ (2008) 20 Canadian Journal of Women and

the Law 1; Elsje Bonthuys, ‘Women’s Sexuality in the South African Constitutional Court: Jordan

v S’ (2006) 14 Feminist Legal Studies 391; Anita Cooke, ‘Choice, Heterosexual Life Partners,

Death and Poverty’ (2005) 122 SALJ 542; Denise Meyerson, ‘Does the Constitutional Court of

South African Take Rights Seriously: The case of S v Jordan’ 2004 Acta Juridica – The Practice of

Integrity: Reections on Ronald Dworkin and South African Law 138; B Coetzee Bester and A Louw,

‘Domestic Partners and “the Choice Argument”: Quo vadis?’ (2014) 17 (6) PER/PELJ 295; Henk

Botha, ‘Equality, Dignity, and the Politics of Interpretation’ (2004) 19 SAPL 724; Rosaan Kruger,

‘Sex Work from a Feminist Perspective: A Visit to the Jordan Case’ (2004) 20 SAJHR 138; Gretchen

Carpenter, ‘Of Prostitutes, Pimps and Patrons – Some Still More Equal Than Others?’ (2004) 19

SAPL 231(focusing on the dissent); Mtendeweka Mhango, ‘Transformation and the Judiciary’ in Cora

Hoexter and Morné Olivier (eds), The Judiciary in South Africa (Juta 2014) 68; Nicole Fritz, ‘Crossing

Jordan: Constitutional Space for (UN)Civil Sex?’ 2004 (20) SAJHR 230, generally supports the

decriminalisation of sex work from a feminist point of view; Usha Jivan and Devina Perumal, ‘“Let’s

Talk about Sex, Baby” – But Not in the Constitutional Court: Some Comments on the Gendered

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Dyani-Mhango Chief Justice Ngcobo’s Approach to Gender Equality

jurisprudence on gender equality specically relating to these two cases.9 The aim is not

to determine the validity or invalidity of these claims, but to highlight the issues raised

in order to discuss Ngcobo CJ’s legacy in relation to these two judgments. However, I

argue that Ngcobo CJ was correct to defer to the Legislature for nality, since these are

controversial issues.

The article begins by way of introduction in this section. Then it discusses Ngcobo CJ’s

opinions and the criticisms by gender scholars in Jordan and Volks. Next, the article will

examine new developments in the aftermath of Jordan and Volks. Finally, I express my

views with regard to Ngcobo CJ judgments on the two cases, particularly in relation to

the latest developments on the issues.

The Jordan Case

In 1996, three defendants conceded that they had breached certain provisions of the

Sexual Oences Act 23 of 1957, which criminalised sex work or commercial sex and

brothel-keeping. However, they challenged the provisions in question on the basis

that they were unconstitutional and invalid, and should be declared as such.10 Given

that magistrates’ courts have no power to declare legislation invalid,11 the defendants

appealed to the High Court to have the provisions of the Sexual Oences Act declared

invalid. The High Court held that section 20(1A)(a) of the Sexual Oences Act, which

outlawed sex work, was unconstitutional.12 The High Court also held that sections 2,

3(b) and 3(c) of the Sexual Oences Act (the brothel-keeping provisions) were not

Nature of Legal Reasoning in the Jordan Case’ (2004) 17 SA Criminal Justice 368; Chesa Boudin and

Marlise Richter, ‘Adult, Consensual Sex Work in South Africa – The Cautionary Message of Criminal

Law and Sexual Morality’ (2009) 25 SAJHR 179; and B Smith, ‘Rethinking Volks v Robinson: The

Implications of Applying a “Contextualised Choice Model” to Prospective South African Domestic

Partnerships Legislation’ 2010(13)3 PER/PELJ 238.

9 Ngcobo CJ has penned an important dissenting opinion in Bhe & Others v Khayelitsha Magistrate

& Others 2005 (1) SA 580 (CC), advancing the right of women to inherit their husbands’ or fathers’

intestate estates. He held at para 190 that ‘[t]he role that women play in modern society and the

transformation of the traditional African communities into urban industrialised communities with

all their trappings, make it quite clear that whatever role the rule of male primogeniture may have

played in traditional society, it can no longer be justied in the present day and age. Indeed, there

are instances where in practice women have assumed the role of the head of the family.’ See also C

Himonga, ‘Reection on Bhe v Magistrate Khayelitsha: In Honour of Emeritus Justice Ngcobo of the

Constitutional Court of South Africa’ in this volume.

10 Jordan para 34.

11 Section 170 of the Constitution of the Republic of South Africa, 1996 stipulates that ‘Magistrates’

Courts and all other courts may decide any matter determined by an Act of Parliament, but a court of a

status lower than a High Court may not enquire into or rule on the constitutionality of any legislation

or any conduct of the President.’

12 Section 20 provides: ‘Persons living on earnings of prostitution or committing or assisting in

commission of indecent acts. – (1) Any person who –. . . (aA) has unlawful carnal intercourse, or

commits an act of indecency, with any other person for reward; . . . shall be guilty of an oence.’