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240 Chapter 14
interpretation of the provision. Their starting point was to ‘consider
whether there is a constitutionally compatible interpretation of the
section’ that the provision is ‘reasonably capable of bearing’. 44
The majority took a more staid approach. It looked at what had
been generally accepted in our law; the natural reading of the
section; and the context of the enactment of the provision. 45 In
finding that the provision did differentiate between sex worker and
client, the Court also sought to avoid a broadening of the definition
of the crime (so as to include the client in its ambit), a task that
ordinarily fell to the legislature and not the Court. The Court
concluded that it would be contrary to constitutional values, including
the principle of legality, to accept the extended definition. 46
In National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs, 47 the state contended that the exclusion of gay and
lesbian partners from benefits was not discrimination based on sexual
orientation but on the fact that these partners were ‘non-spouses’. In
response to this line of argument, the Court said that the question of
whether there has been differentiation on a specified or unspecified
ground has to be determined objectively 48 and contextually, and with
the experience of those affected by it in mind. 49 In this case the
enquiry was a substantive one that went beyond the form of the
disputed law to determine its impact on the complainants. This closer
inspection involves an interrogation of the assumptions and stereotypes
about ‘spouse’ and ‘family’ that underpinned the respondent’s
challenge, as well as how these affected gay and lesbian people.
Before this case, the stage of proving discrimination was a relatively
mechanical one in the Court. This case suggests that the stage of
proving discrimination could yet become a far more substantive
enquiry than has, thus far, been the case.
In contrast, Jordan v The State demonstrates the difference
between a mechanical and more substantial approach to
understanding the relationship between differentiation/discrimination
and the stated ground. Unlike the enquiry in National Coalition
for Gay and Lesbian Equality v Minister of Home Affairs, the Jordan
majority fails to interrogate the relationship between the
differentiation in section 20(1)(aA) and ‘gender’ and finds no
discrimination on the basis of gender. 50 The more substantial and
detailed enquiry of the minority, which is more faithful to the
44 Jordan (n 12 above) para 40.
45 Jordan (n 12 above) paras 41–44.
46
Jordan (n 12 above) para 45–46.
47 NCGLE v Minister of Home Affairs (n 18 above).
48 Harksen (n 9 above) para 48.
49
See NCGLE v Minister of Home Affairs (n 18 above) para 35.
50 Jordan (n 12 above) paras 8-14.