S v Jordan

The Constitutional Court upheld the criminalisation of sex work under the Sexual Offences Act, rejecting a constitutional challenge based on equality and dignity. The Court held that while sex workers face discrimination, the legislation did not unfairly discriminate because it applied equally to sex workers and their clients, and the legislative choice to criminalise prostitution was rationally connected to legitimate government purposes.

The applicants were sex workers convicted under provisions of the Sexual Offences Act that criminalised prostitution. They challenged the constitutional validity of these provisions, arguing that the law unfairly discriminated against them on the basis of sex and gender, as they were predominantly women while their male clients faced similar but differently enforced criminal sanctions.

Whether the criminalisation of sex work constitutes unfair discrimination on grounds of sex or gender contrary to section 9 of the Constitution.

The Constitutional Court dismissed the application, holding that the impugned provisions did not unfairly discriminate against sex workers. The Court found that the law criminalised both the sale and purchase of sexual services, and any differential impact was not attributable to unfair discrimination in the legislation itself but rather to broader societal factors and enforcement practices.

Legislation that criminalises conduct equally, even where it has a disproportionate impact on a particular group due to social circumstances, does not constitute unfair discrimination if the legislative purpose is legitimate and rationally connected to that purpose.

The Court applied the equality analysis under section 9 of the Constitution, finding that while sex workers are a vulnerable group, the differentiation in the law was not based on a listed ground in a manner that constituted unfair discrimination. The legislation pursued the legitimate aim of addressing the social harms associated with prostitution, and the criminalisation of both supply and demand sides of the transaction meant there was no discrimination on the face of the statute. Concerns about differential enforcement were matters of application rather than constitutional validity of the law itself.

The Court acknowledged the vulnerability and marginalisation of sex workers and noted that decriminalisation was a policy option available to the legislature, but emphasised that courts should be cautious about invalidating legislation on the basis that alternative, potentially better policies exist.

This case is a key authority on the limits of equality rights under the Constitution, particularly regarding legislative choices in the sphere of moral regulation and criminal law. It illustrates the Court's deference to legislative policy choices where rational justification exists, and highlights the distinction between facial discrimination and discriminatory impact arising from social context or enforcement.

S v Jordan 2002 (6) SA 642 (CC) [2002] ZACC 22