## Facts

- Ellen Jordan owned and operated a “massage parlor” in Pretoria that functioned as a brothel; two co-accused were her employees, including a sex worker.
- Police carried out an undercover operation in which an officer entered the premises, paid money, and received a sexual service described in the record as a “pelvic massage.”
- The three women were charged under the **Sexual Offences Act 23 of 1957**, including:
  - **s 20(1)(aA)** (criminalising “unlawful carnal intercourse” or an “act of indecency” **for reward**), and
  - **brothel-related provisions** (including offences commonly described as brothel-keeping and aiding or assisting in the running of a brothel).
- The accused admitted the conduct but challenged the provisions as unconstitutional, relying on rights including **equality**, **dignity**, **privacy**, **freedom and security of the person**, and **freedom of trade/occupation/profession**.
- The **Magistrates’ Court** convicted them, holding it could not invalidate an Act of Parliament.
- On appeal, the **High Court** held **s 20(1)(aA)** unconstitutional, but upheld the brothel-keeping provisions.
- The matter went to the **Constitutional Court** for (i) **confirmation** of the High Court’s invalidity order regarding **s 20(1)(aA)**, and (ii) the appellants’ further challenge to the brothel-keeping provisions.
- A central equality argument was that **s 20(1)(aA)**, in practice, targeted sex workers (predominantly women) while not making customers principal offenders.

## Issues

1. Whether the **interim Constitution** governed the constitutional review, given the timing of the offences and proceedings.
2. Whether **s 20(1)(aA)** of the Sexual Offences Act (sex for reward) violated constitutional rights—especially **equality** (including alleged indirect discrimination against women)—and therefore whether the High Court’s declaration of invalidity should be confirmed.
3. Whether the **brothel-keeping provisions** were unconstitutional under the same rights-based challenges.
4. Whether any proven rights limitations were justified under the applicable constitutional limitations analysis.

## Decision

- The Constitutional Court held that the **interim Constitution** applied to the case.
- The Court **refused to confirm** the High Court order declaring **s 20(1)(aA)** invalid.
- By a **6–5 majority**, the Court held **s 20(1)(aA) constitutional**, rejecting the claim that it amounted to unfair gender discrimination.
- The Court held that **s 20(1)(aA)** was **not direct gender discrimination** because it did not differentiate between men and women on its face; the majority was not persuaded that the disparate impact argument established **unfair** discrimination.
- The Court **unanimously upheld** the constitutionality of the **brothel-keeping provisions**.
- The appeal failed; the invalidity order was not confirmed and the challenged offences remained in force.

## Legal Principles

- A law that is **gender-neutral on its face** is not direct sex discrimination; a claimant relying on **indirect discrimination** must show a disparate impact and that the impact is **unfair** under the equality analysis.
- Differentiation between **sex workers and customers** is not, without more, differentiation on a listed ground such as sex; a gender-disparate enforcement pattern does not automatically make a statute unconstitutional.
- The fact that a statute makes one party a principal offender does not end the constitutional inquiry; criminal law may address other participants through doctrines such as **accomplice liability**, depending on the legislative scheme.
- Rights such as **privacy**, **dignity**, and **freedom and security of the person** do not create a general bar against criminalising consensual adult sexual conduct where the legislature acts on identified public-welfare concerns linked to commercial sex.
- The constitutional right to choose a **trade, occupation, or profession** can be limited by a law of general application; criminal prohibitions may be upheld where the limitation is found justified within the governing limitations framework.
- Where a High Court declares national legislation invalid, the order has no force unless **confirmed by the Constitutional Court**.

## Conclusion

In *Jordan v. South Africa* (reported in BHRC from *S v Jordan and Others*), the Constitutional Court held that South Africa’s offences criminalising sex for reward and brothel-keeping were constitutionally valid: it refused to confirm the High Court’s invalidation of s 20(1)(aA) (by a narrow majority), unanimously sustained the brothel-keeping provisions, and rejected challenges based on equality (including alleged indirect discrimination against women), dignity, privacy, personal freedom, and freedom of economic activity.


Jordan v. South Africa, 13 BHRC 203 (2002)