## Facts

- Police raided a brothel in Pretoria in 1996 and arrested three women connected to the operation: the brothel owner/manager, a receptionist/assistant, and a sex worker.
- The owner and receptionist were convicted under statutory provisions criminalizing keeping, managing, or assisting in the management of a brothel.
- The sex worker was convicted under a statutory provision criminalizing sexual acts for reward after she accepted payment to perform a sexual act for an undercover officer.
- The defendants did not contest that the conduct fell within the statutory prohibitions; they challenged the constitutionality of the provisions.
- A trial court convicted all three; an intermediate appellate court invalidated the prostitution provision as unconstitutional but upheld the brothel-keeping provisions.
- The high court’s invalidation of the prostitution provision required review, and the defendants also sought invalidation of the brothel-keeping provisions.

## Issues

1. Whether the prostitution provision, which criminalized the person who sells sex for reward, violated constitutional equality guarantees by discriminating on the basis of sex or gender, including by disparate practical impact.
2. Whether criminalizing prostitution violated constitutional rights to dignity, privacy, freedom and security of the person, or economic activity.
3. Whether provisions criminalizing keeping and managing a brothel violated the same constitutional rights.
4. Which constitutional text governed the dispute (interim versus later constitution).

## Decision

- The court applied the interim constitution because the underlying events occurred during its operation and no sufficient reason required applying the later constitution.
- The court unanimously upheld the constitutionality of the brothel-keeping and brothel-management provisions.
- By a 6–5 vote, the court declined to invalidate the prostitution provision and held it constitutional.
- The majority held the prostitution provision was facially gender-neutral, did not amount to unfair discrimination, and did not unconstitutionally infringe dignity, privacy, or economic-activity rights.
- The majority reasoned that the legislative purpose—suppressing commercial sex as a matter of public order and morality—was legitimate, and criminal sanctions were a permissible means to pursue it.
- The majority rejected the claim that clients were “immune,” noting potential criminal liability through general participation/incitement principles.
- The dissent would have held that, in practice, penalizing sellers but not buyers imposed indirect unfair gender discrimination and unjustifiably limited equality and freedom-and-security rights, though it agreed the dignity and privacy challenges did not warrant invalidation.

## Legal Principles

- Constitutional review may apply the constitution in force when the alleged violation occurred, absent a sufficient justice-based reason to apply later constitutional provisions.
- A statute that is facially neutral does not necessarily violate equality guarantees; disparate impact must be assessed, and a disproportionate effect does not automatically establish unfair discrimination.
- Criminalization of commercial sexual conduct may be treated as regulation of commercial activity rather than intimate private conduct, narrowing the scope of privacy protection.
- Limits on asserted rights may be justified when legislation pursues an important public purpose and the means chosen are rationally connected to that purpose.
- Differential practical impact on a gender group can support an indirect discrimination claim where enforcement patterns and social context show the law reinforces gender inequality (dissenting approach).

## Conclusion

The court upheld statutory prohibitions on brothel-keeping and, by a narrow majority, upheld criminalization of prostitution by the seller, concluding the provisions served a legitimate purpose and did not amount to unfair gender discrimination or unconstitutional infringements of dignity, privacy, or related rights, despite a dissent finding indirect unfair discrimination in practical effect.


Jordan v. State, 2002 (6) S. Afr. L.R. 642 (S. Afr. Const. Ct. 2002)