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

• Jurisdiction: South Africa
• 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
• Judgment Date: 09 October 2002
• Citation: 2002 (2) SACR 499 (CC)
• Docket Number: CCT 31/01
• 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 P H 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.
• Court: Constitutional Court

Ngcobo J:

Introduction

[1] I have had the benefit of reading the joint judgment of O'Regan G J and Sachs J. I agree with the conclusion that the constitutional challenges based on human dignity, freedom of person, privacy and economic activity must fail. But the reasons that persuade me to conclude that the challenge based on the right to economic activity and the right to privacy must fail differ in both their scope and emphasis from those advanced in the joint judgment. I also agree that the H challenge to ss 2, 3(b) and (c) of the Sexual Offences Act 23 of 1957 (the Act) must fail. However, I do not agree with the conclusion that s 20(1)(aA) of the Act discriminates unfairly against women and that it is thus inconsistent with the interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993), as found by my Colleagues. I

Which Constitution is applicable?

[2] The issue of which constitution applies is governed by item 17 of Schedule 6 of the Constitution (the Constitution of the Republic of South Africa Act 108 of 1996), which provides that proceedings that J

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were pending when the Constitution came into force, shall be governed A by the interim Constitution unless the interests of justice require otherwise. [1] The Constitution expresses the principle that a dispute must ordinarily be decided in accordance with the law in force at the time when the alleged infringement of the Constitution occurred. [2] The Constitution will B apply retroactively only if the interests of justice so demand.

[3] In their appeal in the High Court the appellants based their constitutional challenges on the interim Constitution. That is the Constitution that was in force when the events that gave rise to these proceedings occurred. In this Court all the parties accepted that the C interim Constitution governs these proceedings. The High Court, however, approached the matter on the footing that the Constitution applies. It is not clear from the judgment of the High Court whether any argument was addressed to it on this question. The parties did not suggest that it was in the interests of justice to apply the D Constitution.

[4] The High Court should have applied the interim Constitution as that Constitution was in force when the acts that gave rise to these proceedings were committed. Ordinarily we would have to decline to confirm the order of invalidity on this basis alone. There are, E however, considerations that militate against such a course being followed. There is no material difference between the provisions of s 8 of the interim Constitution and s 9 of the Constitution, both of which deal with discrimination. It therefore matters not which Constitution was applied by the High Court in reaching its conclusion that s 20(1)(aA) was discriminatory and therefore inconsistent with the Constitution. We can therefore apply F the interim Constitution. The parties did not contend otherwise.

The proceedings in the High Court

[5] The constitutional challenge to s 20(1)(aA) included challenges based on the G violation of 'the rights of . . . gender equality' and 'to equality before the law . . .'. The High Court found that the distinction made by the provision between the merchant and the customer was 'obviously unjustified discrimination between not only sexes but also persons'. [3] It also found that the impugned provision was discriminatory by distinguishing between 'a prostitute H who received money for her favours and her sister who receives, for rendering similar services, a

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benefit or reward of a different kind such as a paid holiday A weekend . . .'. [4]

[6] It is unfortunate that the High Court did not specify the provision of the Constitution that it found to have been violated by s 20(1)(aA). In particular, it was necessary to indicate whether the finding of discrimination was based on s 9(1) or 9(3) of the Constitution. Nor did the High Court indicate the basis for B its conclusion that s 20(1)(aA) could not be justified.

[7] When a Court concludes that a provision in a statute limits a constitutional right, it is necessary first, to identify the specific provision of the Constitution that is limited by the impugned C provision, and, second, to determine whether the limitation is justifiable in terms of s 36(1) of the Constitution. This Court has on more than one occasion pointed out that the enquiry into the constitutional validity of a provision in a statute requires the Court to engage in a two-stage enquiry: first, it must determine whether the impugned provision limits a constitutional right. If it does, the D second enquiry arises. That enquiry relates to the question whether the limitation of the right is justifiable in terms of s 36(1). [5]

Does s 20(1)(aA) discriminate unfairly against women? E

[8] The central issue that was debated in this Court is whether s 20(1)(aA) discriminates unfairly against women. That debate turned largely upon the proper construction of s 20(1)(aA). On behalf of the State it was contended that upon a proper construction the section strikes at both the prostitute and the customer and hence it is not discriminatory. The appellants and the amici contended that it strikes only at F the prostitute and hence it is discriminatory. In my view, this matter can conveniently be approached on the footing that the section is directed at the prostitute only and not the customer.

[9] Penalising the recipient of the reward only does not constitute unfair discrimination on the grounds of gender. The section penalises 'any person' who engages in sex for reward. The section G clearly applies to male prostitutes as well as female prostitutes. The section is therefore gender-neutral. Penalising the prostitute only does not therefore amount to direct discrimination. H

[10] Nor does it amount to indirect discrimination. The section makes a distinction between the prostitute and the customer. There is a qualitative difference between the prostitute who conducts the business of prostitution and is therefore likely to be a repeat offender, on the one hand, and the customer who seeks the service of a prostitute only on I

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occasion and thus may or may not be a repeat offender. As the joint A judgment holds, the purpose of the prohibition is to outlaw commercial sex. The prostitute is engaged in the business of commercial sex. One of the ways of curbing commercial sex is to strike at the merchant by means of criminal sanctions. The differentiation between the dealer and customer is a common distinction that is made in a number of statutes. [6] B

[11] The differentiation made by the section must be viewed against the fact that a man or woman who pays for sex is guilty of criminal conduct and liable to the same punishment as the prostitute. At common law the customer is a socius criminis [7] and also commits an offence under s 18 of the Riotous Assemblies Act. [8] In terms of the Riotous Assemblies Act, the customer is liable to the same C punishment to which the prostitute is liable.

[12] It needs to be stressed here that the purpose of s 20(1)(aA) is to prohibit commercial sex, not to protect the person who pays for sexual favours. The comments made by D Steyn CJ in S v Kellner [9] with regard to a statute that prohibited the receipt of a bribe, seem to me to be apposite here. The purpose of that prohibition was not to protect persons offering a bribe

'against their own weaknesses or against any temptation into which the urgency of their own affairs may lead them; and if they should become the victims of circumstance and inclination, that does not place E them in the category of complainants who have suffered injury and who should not be be (sic) deterred from disclosure by any apprehension of being implicated in an offence'.

In the circumstances a provision that made it an offence to receive a bribe, did

'not exclude the person performing the supplementary act to the F prohibited acceptance of a reward from criminal liability as an accessory'. [10]

[13] The Sexual Offences Act was therefore enacted in the context of a system of law in which all who participate in a prohibited act are guilty of having participated in that act and liable to the same punishment as the principal offender. The Sexual Offences Act forms part of that system of law. So does s 20(1)(aA). G

[14] Thus, a man who pays for sex and the woman who receives the

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payment are equally guilty of criminal conduct and liable to the same A penalties. Both at common law and in terms of the Riotous Assemblies Act the customer commits an offence, and in terms of the Riotous Assemblies Act the customer is liable to the same punishment to which the prostitute is liable.

[15] And if there is any discrimination, such discrimination can B hardly be said to be unfair. The Act pursues an important and legitimate constitutional purpose, namely to outlaw commercial sex. [11] The only significant difference in the proscribed behaviour is that the prostitute sells sex and the patron buys it. Gender is not a differentiating factor. Indeed one of the effective ways of curbing prostitution is to strike at the supply. Two C points to note here are the ones already stressed: first, the prohibition is gender neutral, it punishes both female and male prostitutes; and, second, guilt and punishment are equal for both the prostitute and the customer. In the circumstances any 'discrimination' resulting from the prostitute and the customer being dealt with under different provisions of the law cannot be said to be unfair. D

[16] If the public sees the recipient of reward as being 'more to blame' than the 'client', and a conviction carries a greater stigma on the 'prostitute' for that reason, that is a social attitude and...