Legal happy ending eludes ‘those people’

High heels click on cold concrete. Lipstick glows red in the faint streetlight of the upmarket Johannesburg suburb of Illovo. A split-second pop … and the white bubble-gum disappears back into her mouth.

A sleek German sedan slows down, its xenon headlights blue and slowly gliding over her sculpted legs – her minute leopard-print skirt more micro than mini.

She is one of “those people”: the kind that most members of polite society only notice when fleetingly confronted by their silhouettes on the side of the road on the way back from a night out – or maybe when watching a heart-warming romantic comedy, when the pretty woman also happens to be one of them.

Sadly, such happy endings are hard to come by for “those people” who wander the streets of South Africa.

“Come back at 11,” Virginia, the woman in the micro-mini, tells me. That’s not her real name – people in this industry are not too forthcoming with biographical details.

Monosyllabic answers
Back from her regular client, who swept her up in his fancy car, Virginia is present but not really there. A conversation isn’t easy because she keeps combing the street behind me for prospects. Her answers are mostly monosyllabic.

Where are you from? “Zim.”

Virginia doesn’t want to do the job, she says. “I just do it.”

Do the cops harass you? “Not really. They know us.” As if to prove this, a police van drives past without even slowing down.

Sex workers – literally and figuratively – operate mostly in a twilight zone between legal and illegal.

Criminal offence
According to the Sexual Offences Act of 1957, it is a crime to have unlawful carnal intercourse with any person for reward. Put aside all the sugar daddy and mommy transactional relationships – sex work in South Africa is still currently a criminal offence, classified as a “B-class” or less serious crime. Solomon Makgale, the South African Police Service’s national spokesperson, says that, after arresting alleged prostitutes, the police will charge them based on “loitering for [the] purpose of prostitution”.

The South African Law Reform Commission has been investigating legal models for sex work since 2000, and has released no concrete recommendations in the 15 years that it has been busy with this process.

In late August, activists, human rights defenders, lawyers, sex workers and academics from 17 organisations formed the Asijiki Coalition for the Decriminalisation of Sex Work in South Africa.

Asijiki is the isiZulu word for “no turning/looking back”. The coalition is made up of participants from a cross-section of society “who work towards safeguarding the human rights of sex workers everywhere”.

The coalition’s steering committee comprises the Sisonke Sex Worker Movement, the Women’s Legal Centre, the Sex Workers Education and Advocacy Taskforce (Sweat) and Sonke Gender Justice.

It is an awkward silence as Pamela (35) – yes, not her real name – and I pull out the chairs to sit down in an empty office at Sweat’s Johannesburg office in Braamfontein. We both know this will be a long and intrusive conversation. On the other side of the door, activists are having their morning meetings.

Single mother
When she was 23, an abusive relationship in Durban accelerated her into the role of a single mother. With no income, she was unable to take care of her six-year-old son. A friend suggested that she became one of “them”. “My friend didn’t tell me what job she was doing – but I saw that she always had money, which interested me,” recalls Pamela.

A quick search in her local newspaper’s classified section led Pamela to a brothel in a residential area where she would operate for the next few years.

“I didn’t know what we were going to do there; I just saw girls in mini-skirts and make-up smiling when clients came into the house,” she says. “My first time was hard because clients always somehow chose me, even without me smiling or with no make-up on.

“I didn’t know what to do with my first client; I had never slept with a white man before and he kept asking if I had toys. I thought he meant children’s toys, not vibrators and other things.”

Three years later, she moved to Johannesburg, because “Durban was getting too small”.

Arrested for ‘loitering’
Pamela has not kept count of how many times she’s been arrested for “loitering” or purely because she is known to be a sex worker, but says that she has never appeared in court for her offences. Mostly, her admission of guilt fines have been paid directly into police officers’ hands in the form of bribes, she maintains.

She says her relationship with police operating in central Johannesburg varies from extremely violent arrests to providing services to married policemen she knows as regular clients, some even proposing that she become their second wife.

“I have policemen as clients. One of them calls me, and he sometimes will tell me to book a hotel room for us and tell me to wait for him there. He doesn’t like us meeting on the street, so he gives me money to book the hotel room. He has a wife and kids in Soweto who don’t know about me. But he pays me well.”

Pamela is one of the estimated 153 000 sex workers active in the country, according to the South African National Aids Council. Like many others, she has had to learn on the job – often exposed to ill treatment from health practitioners, brothel owners, building managers and the police.

Pamela, who is pregnant with a child by her long-term partner, now works with Sweat. She helps other sex workers to get access to condoms and provides them with information about their rights.

Condom usage
When she was still on the streets, Pamela tussled with clients about condom usage, something she has always considered non-negotiable since she found out she was HIV-positive at the age of 23. A pack of free clinic condoms offers a thin line of protection between her and potential clients – something police are said to search for in sex workers’ handbags as evidence before they make an arrest.

“Sometimes clients don’t want to use condoms, then I ask myself: if he doesn’t want to use a condom with me, it means there are many other sex workers he refuses to use condoms with.

“I remember disclosing my status to one client who did not believe I was HIV-positive. He said I’m too fresh to be HIV-positive and wanted to do it anyway without protection, which is dangerous for me too – so I said no.

“I know some girls who need the money would do it, but for me his R150 won’t pay to save my life.”

Legal services
Stacey-Leigh Manoek from Cape Town’s Women’s Legal Centre, which provides legal services to sex workers, says because it is a morally stigmatised industry sex workers regularly have their human rights infringed on.

Sex workers are often reluctant to report rape or violent abuse to the police, because “in most cases the police themselves are perpetrators of these violent crimes”.

The Sexual Offences Act as it stands is very difficult to prosecute under and requires intensive and intrusive policing methods to secure a conviction, Manoek says. “The reality is that sex workers are seldom prosecuted under criminal law and are more likely to be arrested, harassed and then released,” with no records documenting their arrests.

Manoek says that police do not often enforce the provisions of the 1957 Act and believes that the legal framework encourages police corruption in the form of bribes and demands for sex. 

There is also apparent buck-passing between the police and the justice system. Neither has proper records of arrests, fines or prosecutions, it appears.

Access to information
In May this year Sweat made a Promotion of Access to Information Act application to the National Prosecuting Authority (NPA). The organisation requested lists and the number of prosecutions and convictions, both in terms of legislation and bylaws under which suspected sex workers and clients are convicted.

In an email the NPA’s deputy information officer, Theodore Leeuwschut, told Sweat that the NPA “does not collate offence-specific statistics and neither can we assist with cases where sex workers were involved. We do not keep such records.

“These are cases that are not in line with the deliverables and activities of the NPA annual performance plans and business units, which basically deal with prosecutions and convictions of cases in court,” he wrote. 

Sex workers are rarely found in court. The NPA suggested that the Mail & Guardian ask the police, who confirmed that they keep no records of B-class crimes either.

“This will take long, simply because sex workers are not our only category of B-class crime,” spokesperson Makgale said. “If we were to spend our time collating them, we may find ourselves not paying adequate attention to serious crimes.”

Yet last year Sweat recorded at least 60 arrests of sex workers in Johannesburg alone. Neither the police nor the NPA has any record of arrests being made, whether sex workers appear in court or not.

Skimpy lace
Back on the Illovo drag, the late-night sky opens, and Virginia’s skimpy lace top provides no protection against the pouring rain.

“There’s a car,” says one of the other women, nodding towards a black car, its driver hidden behind tinted windows. It is one of Virginia’s clients. She’s already on her way, high heels clicking fast.

I try to get one last question in about her work. Virginia shouts over her shoulder: “Go try the others up the road. Maybe they’ll talk for free!”

Mosibudi Ratlebjane is the Rosa Luxemburg Foundation Social Justice Fellow

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