Sex work and the law in South Africa – hit and miss?. Liesl Gerntholtz Director – Tshwaranang Legal Advocacy Centre . Current legal position. Sex work is a statutory offence.
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The Sexual Offences Act 23 of 1957 criminalises sex work in terms of section 20(1)(aA) – it states that any person who has unlawful carnal intercourse or commits an act of indecency with any other person for reward, is guilty of an offence.
Range of other laws and by-laws that also impact on sex work.
1994 – advent of democracy brought with it a recognition of the need to review the legal approach to sex work / prostitution (debate about terminology – O’Regan J in Jordan judgment declines to choose);
1994 – SWEAT was formed in Cape Town; DECPRO also formed, but later fell away;
1995 – the Department of Health requested CALS to investigate options to regulate sex work – produced a draft bill that decriminalised sex work;
1996 – Gauteng Cabinet Committee on Safety and Security and Quality of Life mandated the Gauteng Ministry of Safety and Security to draft a policy on the regulation of sex work – recommended decriminalisation and document distributed for comment – promising initiative.
In 1997, the South African Law Commission began an investigation into sexual offences against children – this investigation inevitably led to a consideration of broader issues relating to sexual offences and the Minister of Justice instructed the Commission to expand the investigation to include sexual crimes against adults;
The SALC decided to produce four discussion papers – the first dealt with substantive law relating to sexual offences against adults and children; the second dealt with process and procedure, the third concentrated on adult prostitution and the final one on pornography. This discussion paper was released for public comment in 2002
1998 – Commission on Gender Equality produced a position paper recommending decriminalisation and proposed a process of legal reform.
Majority decision – Ngcobo J supported by 5 other judges, including then JP;
Judgment short to the point of saying almost nothing!
Court found that the section did not discriminate as it applied to both male and female prostitutes – “section is gender-neutral”;
Agreed that the section did “make a distinction” between the sex worker and client, but since the purpose of the legislation was to “outlaw commercial sex”, and the sex worker was more likely to be a “repeat offender”, this was a constitutionally permissible distinction.