Sex Work and the Bill of Rights
S v Jordan and Others (2002)
Should sex work be legal in a constitutional democracy?
Background
Ellen Jordan, Louisa Johanna Francina Broodryk, and Christine Louise Jacobs, were brothel owners and sex workers respectively. They were arrested as a result of a police raid at their brothel, and convicted in terms of section 20 of the Sexual Offences Act which stated that sex work is a crime. The women appealed this conviction in the High Court.
Since the enactment of immorality legislation and up until today, the state has made a conscious decision to police sex from a conservative moral perspective.
Charlene May
Lawyer, 2002
Path to the Constitutional Court
The High Court heard their appeal and found that the provisions of the Criminal Procedure Act that criminalised sex work and related activities were unconstitutional as they discriminated unfairly on the basis of gender. The matter was sent to the Constitutional Court for confirmation.
Some of the Arguments
Ellen Jordan, Louisa Johanna Francina Broodryk, and Christine Louise Jacobs
Jordan, Broodryk and Jacobs argued that the provisions of the Sexual Offences Act violated their rights to equality, privacy, human dignity, economic activity to pursue a livelihood, as well as freedom and security of a person.
The State
The government contended that the Sexual Offences Act was ‘designed’ to promote the protection or improvement of the quality of life and human development. The state argued that sex work is associated with violence, drug abuse, and child trafficking, and the legislature has the responsibility to combat social ills and, where appropriate, to use criminal sanctions.
What did the Constitutional Court decide?
The Court rejected the High Court’s decision which found that the laws that criminalised prostitution were unconstitutional and emphasised the immorality of sex work. The Constitutional Court did not find the provisions of the Sexual Offences Act unconstitutional, and denied the confirmation of the High Court judgment.
The Court was in agreement that the legislation in question pursued an important and legitimate constitutional purpose in that it sought to outlaw commercial sex and also sought to criminalise brothel keeping. The arguments put forward by Jordan and Broodryk in respect of the violation of the rights to human dignity, freedom of the person, privacy, and economic activity all failed.
The Court’s judgment contains support of the assumption that commercial sex breeds and encourages a variety of social ills such as violence, exploitation and trafficking in women and children, drug abuse, and the spread of sexually transmitted diseases.
Importantly, the judgment stated that a change in the legal status quo of sex work in South Africa would have to come from Parliament as the elected representatives of the people and not from the Court.
It is women and, in particular, prostitutes who suffer the discrimination in this case. There can be no doubt that they are a marginalised group to whom significant social stigma is attached. Their status as social outcasts cannot be blamed on the law or society entirely. By engaging in commercial sex work, prostitutes knowingly accept the risk of lowering their standing in the eyes of the community. In using their bodies as commodities in the marketplace, they undermine their status and become vulnerable. On the other hand, we cannot ignore the fact that many female prostitutes become involved in prostitution because they have few or no alternatives.
Justice Sandile Ngcobo
the Jordan Judgment, 9 October 2002
Impact and Significance
The parties remained convicted of their crimes, and sex work in South Africa as of 2020 is still a crime. NGOs and other invested parties have continued to do meaningful work in improving the lives of sex workers since the S v Jordan case, while actively engaging the state to have their voices heard. This persistent activism culminated in an announcement on 21 December 2017 by Parliament that there would be a hearing to discuss the potential for the decriminalisation of sex work in South Africa.
This hearing was held on 5 March 2018 and included members of civil society. These parties debated the decriminalisation of sex work and the protection of sex workers’ rights. Other parties at the hearing included human trafficking survivors’ groups.
There was a clear divide between parties who supported decriminalisation and viewed sex work as legitimate work and parties who saw it as a dangerous practice and a means to crimes such as human trafficking. The hearing closed with the promise that deliberations will continue, and that legislative reform would be initiated. A draft report found that of the submissions made to the parliamentary hearing, only 22% were in favour of continued criminalisation.
The movement towards the decriminalisation of sex work is not without its political motivations. Previously the debate around decriminalisation of sex work has picked up momentum around election time. While this prominence in the public debate is beneficial to the movement, real change is only possible when the debate moves from political fodder to a genuine commitment to the recognition of the human rights of sex workers.
Zinhl’Mbali Mdluli
lawyer, 2018
Sex work is seen as a major issue for feminist activism. Some feminists believe that sex work harms women and reinforces stereotypical views about women as sex objects. Other feminists believe that criminalising sex work oppresses women even further, and that sex work should be seen as a valid choice for women who wish to engage in it.
