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

• Jurisdiction: South Africa
• Citation: 2002 (6) SA 642 (CC)

S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae)
2002 (6) SA 642 (CC)

2002 (6) SA p642

Citation	2002 (6) SA 642 (CC)
Case No	CCT 31/2001
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'regan J, Sachs J, Du Plessis AJ and Skweyiya AJ
Heard	March 5, 2002; March 6, 2002
Judgment	October 9, 2002
Counsel	D N Unterhalter SC (with him C R Jansen and N Janse van Nieuwenhuizen) for the appellants.; W H Trengove SC (with him A PH Cockrell) for the respondent.; G J Marcus SC (with him S J Cowen) for the first, second and third amici curiae.; S Stein for the fourth amicus curiae.; C R Jansen for the fifth and sixth amici curiae.; M Chaskalson for the seventh amicus curiae.

Flynote : Sleutelwoorde B

Criminal law — Sexual offences — Prostitution — Sexual Offences Act 23 of 1957, s 20(1)(aA) — Man paying for sex and C woman who receives payment equally guilty of criminal conduct and liable to same penalties — Both at common law and in terms of Riotous Assemblies Act 17 of 1956 customer commits offence, and in terms of Riotous Assemblies Act customer liable to same punishment to which prostitute liable.

Criminal law — Sexual offences — Prostitution — Sexual Offences Act 23 of 1957, s 20(1)(aA) — Penalising recipient of D reward only not constituting unfair discrimination on grounds of gender — Section penalises 'any person' who engages in sex for reward regardless of gender — Penalising prostitute only not amounting to direct nor indirect discrimination — Purpose of prohibition to outlaw commercial sex — One of ways of curbing commercial sex is to strike at E merchant by means of criminal sanctions — If there is any discrimination, such discrimination can hardly be said to be unfair — Act pursuing important and legitimate constitutional purpose, namely to outlaw commercial sex — Section 20(1)(aA) not inconsistent with equality provisions in s 8(2) of Constitution of the Republic of South Africa Act 200 of 1993 — Prostitution also not protected by right to economic F activity in s 26 of interim Constitution — Rights to privacy, dignity, freedom and personal security also not infringed by s 20(1)(aA) — Section 20(1)(aA) not unconstitutional.

Criminal law — Sexual offences — Keeping a brothel — Sexual Offences Act 23 of 1957, s 2 read with s 3 — Sections 2, 3(b) and G (c) to be read as regulating only commercial sex — Brothel a business or commercial enterprise whose business is concerned with sexual intercourse — Because s 3(b) and (c) point to business aspects of brothel, they are capable of being read restrictively so as to criminalise only those engaged in managing or receiving money from brothels — Section 2 reasonably capable of being H read to mean keeping brothel for purposes of commercial sex and should be construed in that narrow fashion to avoid manifest unconstitutionality which would result should it be construed to prohibit any person who 'keeps' place where 'unlawful carnal intercourse' as defined in Act takes place.

Criminal law — Sexual offences — Keeping a brothel — Sexual Offences Act 23 of 1957, s 2 read with s 3 — South African constitutional framework I not only permitting, but requiring, Legislature to enact laws which foster morality, but that morality has to be one founded on constitutional values — Sexual Offences Act overall continuing to pursue important and legitimate constitutional purpose, namely control of commercial sex — Sections 2, 3(b) and (c) not constituting limitation of right to economic J

2002 (6) SA p643

activity in s 26 of the Constitution of the Republic of South Africa Act 200 of 1993 — If A criminalising prostitution itself accepted in open and democratic societies as promoting quality of life, so too has criminalising brothels — Sections 2, 3(b) and (c) also not limiting rights to privacy, dignity and freedom — Legislature has to have wide discretion — Issues of controlling and regulating sexual activity complex — Issue very much area for legislative B choice — Sections 2, 3(b) and (c) not infringing Constitution.

Constitutional law — Legislation — Interpretation of — South African constitutional framework not only permitting, but requiring, Legislature to enact laws which foster morality, but that morality has to be one founded on constitutional values — Mere fact that original C legislative purpose of statute might have been incompatible with current constitutional standards not depriving it of capacity to continue to serve legitimate governmental purpose, unless its express language and intent manifestly inconsistent with constitutional values.

Headnote : Kopnota

The appellants had been convicted of contravening ss 2 and 20(1)(aA) of the Sexual Offences Act 23 of 1957. D They appealed to a High Court, which found s 20(1)(aA), which made it an offence to have unlawful carnal intercourse or commit an act of indecency for reward, to be unconstitutional and thus invalid. It found that the provisions of ss 2 and 3(b) and (c), outlawing the keeping of a brothel, were not unconstitutional. The appellants appealed against the latter finding and applied for the confirmation of the E order of invalidity. The appellants relied, inter alia, on the constitutional provisions dealing with equality, human dignity, freedom and security of the person, privacy and economic activity. The appellants also contended that s 20(1)(aA) criminalised only the activities of the prostitute and not those of the client. It was on that basis that the High Court had found the provisions of the section to amount to unfair discrimination. The interim Constitution, the Constitution of the Republic of South Africa F Act 200 of 1993, was applicable to the case.

Held (per Ngcobo J; Chaskalson CJ, Kriegler J, Madala J, Du Plessis AJ and Skweyiya AJ concurring; Langa DCJ, Ackermann J, Goldstone J, O'Regan J and Sachs J dissenting), that a man who paid for sex and the woman who received the payment were equally guilty of criminal conduct and liable to the same penalties. G Both at common law and in terms of the Riotous Assemblies Act 17 of 1956 the customer committed an offence, and in terms of the Riotous Assemblies Act the customer was liable to the same punishment to which the prostitute was liable. (Paragraph [14] at 651F/G - G/H.)

Held, further, that penalising only the recipient of the reward did not constitute unfair discrimination on the grounds of H gender. The section penalised 'any person' who engaged in sex for reward. The section clearly applied to male prostitutes as well as female prostitutes. The section was therefore gender-neutral. Penalising the prostitute only did not therefore amount to direct discrimination. Nor did it amount to indirect discrimination. The section made a distinction between the prostitute and the customer. There was a qualitative difference between the prostitute who conducted I the business of prostitution and was therefore likely to be a repeat offender, on the one hand, and the customer who sought the service of a prostitute only on occasion and thus could or could not be a repeat offender. The purpose of the prohibition was to outlaw commercial sex. The prostitute was engaged in the business of commercial sex. One of the ways of curbing commercial J

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sex was to strike at the merchant by means of criminal sanctions. The differentiation between the dealer and A customer was a common distinction that was made in a number of statutes. (Paragraphs [9] and [10] at 650E - H/I.)

Held, further, that if there was any discrimination, such discrimination could hardly be said to be unfair. The Act pursued an important and legitimate constitutional purpose, namely to outlaw B commercial sex. The only significant difference in the proscribed behaviour was that the prostitute sold sex and the patron bought it. Any 'discrimination' resulting from the prostitute and the customer being dealt with under different provisions of the law could not be said to be unfair. (Paragraphs [15] and [18] at 651G/H - 652C and 652G - H/I.)

Held, accordingly, that s 20(1)(aA) was not inconsistent with the equality provisions in s 8(2) of the C Constitution of the Republic of South Africa Act 200 of 1993. (Paragraph [20] at 653C/D.)

Held, further (per Ngcobo J; Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, O'Regan J, Sachs J, Du Plessis AJ and Skweyiya AJ concurring), that the Legislature had the responsibility to combat social ills and, where appropriate, to use D criminal sanctions. In doing so, it had to act consistently with the Constitution. Once the Legislature had done so, courts had to give effect to that legislative choice and could not enter into the debate as to whether the choice made was better or worse than others not chosen. The options available to the Legislature in combating the social ills associated with commercialised sex included criminalisation, regulation and abstention. The means employed by the E State to address these problems were to criminalise commercial sex and brothel-keeping. This was prima facie sanctioned by s 26(2) of the interim Constitution. Measures intended to eliminate the harmful effects of prostitution and brothel-keeping were clearly measures designed to protect and improve the quality of life. It followed therefore that prostitution and brothel-keeping were not protected by F the right to economic activity in s 26 of the interim Constitution. (Paragraphs [25], [26] and [56] at 654B - E/F and 664G/H - 665A/B.)

Held, further, that, even insofar as the right to privacy was implicated, it lay at the periphery and not at its inner core. What lay at the heart of the prostitutes' complaint was that they were prohibited from selling their...