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O’REGAN J and SACHS J to the extent of its inconsistency. Further, it may make any order that is just and equitable, including an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. [123] Counsel for the state75 asked us to suspend the order of invalidity for a period of between 24 and 36 months. His reasoning was the following: in determining whether to suspend an order of constitutional invalidity, the purpose which is served by the impugned legislation must be weighed against the constitutional violation which is effected by the legislation. An important consideration is whether an immediate striking-down would cause disorder or dislocation. If an immediate striking-down would be prejudicial to good governance, the order of constitutional invalidity should be suspended and Parliament should be afforded a period of time in which to correct the defects. It would lead to highly undesirable consequences if the impugned provisions of the Sexual Offences Act were to be declared unconstitutional with immediate effect. This would create a vacuum during which there would be no regulation of sex work whatsoever. Such a free-for-all would be the worst of all possible worlds. He argued that it is necessary to regulate sex work in pursuit of several important public interests. All of these considerations of public interest would be undermined if prostitutes were allowed to ply their trade in an unregulated environment whilst Parliament attempted to draft new legislation. It would take at least 24 months to draft appropriate legislation to regulate prostitution and brothel-keeping. 75 Citing Fraser v Children’s Court, Pretoria North and Others 1997 (2) SA 261 (CC); 1997 (2) BCLR 153 (CC) at paras 50-1; First National Bank of South Africa Ltd v Land and Agricultural Bank of South Africa and Others; Sheard v Land and Agricultural Bank of South Africa and Another 2000 (3) SA 626 (CC); 2000 (8) BCLR 876 (CC) at para 13; and S v Steyn 2001 (1) SA 1146 (CC); 2001 (1) BCLR 52 (CC) at paras 45-6. 82

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Ellen Jordan et al v Ellen Jordan ors, 2002

Cases

Country

Latitude: -31.005484474142992

Longitude: 23.460146846172638

Country (linked Cases): South Africa

Court: South Africa: Constitutional Court, South Africa

Date of judgement: Oct 9, 2002

Keywords

Arrest
Right to dignity
Sexual offences

Gender of victim

Female: Woman (18+)

Gender of accused/perpetrator

Gender not specified

Language: English

Summary: This case concerns a brothel-owner, brothel employee and prostitute/sex worker who were all convicted in the Magistrates Court of contravening the Sexual Offences Act of 1957. They appealed to the High Court, arguing that the relevant provisions were unconstitutional. The High Court found that the section of the Act which criminalizes carnal intercourse for reward was unconstitutional bus dismissed the appeal in respect of the sections of the Act which criminalize keeping or managing a brothel (the brothel provisions). The appellants then appealed to this Court, arguing that the brothel provisions should be found to be unconstitutional. They also argued that the High Court order invalidating the prostitution provision should be confirmed. The state opposed the appeal on the brothel provisions and also opposed confirmation of the order invalidating the prostitution provision.

The Court accordingly unanimously upholds the constitutionality of the brothel provisions and by a majority refuse to confirm the High Court order invalidating the prostitution provision. The convictions and sentences imposed upon the three appellants in the Magistrates’ Court are accordingly reinstated.

Primary Documents

S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae.pdf
English
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Ellen Jordan et al v Ellen Jordan ors, 2002

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