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NGCOBO J [11] The differentiation made by the section must be viewed against the fact that a man or woman who pays for sex is guilty of criminal conduct and liable to the same punishment as the prostitute. At common law the customer is a socius criminis7 and also commits an offence under section 18 of the Riotous Assemblies Act.8 In terms of the Riotous Assemblies Act, the customer is liable to the same punishment to which the prostitute is liable. [12] It needs to be stressed here that the purpose of section 20(1)(aA) is to prohibit commercial sex, not to protect the person who pays for sexual favours. The comments made by Steyn CJ in S v Kellner9 with regard to a statute that prohibited the receipt of a bribe, seem to me to be apposite here. The purpose of that prohibition was not to protect persons offering a bribe 7 R v Jackelson 1920 AD 486 at 490; S v Kellner 1963 (2) SA 435 at 446G-447G. 8 Act 17 of 1956. Section 18(2) provides that: “Any person who (a) conspires with any other person to aid or procure the commission of or to commit; or (b) incites, instigates, commands, or procures any other person to commit, any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing the offence would be liable.” 9 S v Kellner above n 7 at 447E - F. 7

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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

Primary Documents

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