Sex work is still illegal in democratic South Africa
Justice Minister Ronald Lamola on Friday reiterated the government’s call for public comment on the recently published bill aimed at decriminalising sex work and ultimately improving access to health care by sex workers while ensuring their protection by law enforcement agencies.
Cabinet approved the publishing of the Criminal Law Sexual Offences and Related Matters, Amendment Bill of 2022, for public comment on 30 November and on Friday Lamola told journalists that decriminalisation of the industry would hopefully minimise human rights violations against sex workers, afford them better working conditions, and remove the discrimination and stigma against them.
“The Bill follows a two-step approach to sex work. It does not decriminalise and regulate the industry all at once. It deals with decriminalisation only, with regulation to follow at a later stage,” he said.
“It was thought to be important to deal with the decriminalisation first, so as to ensure that sex workers are no longer criminally charged. This will mean greater protection for sex workers.”
He added that existing laws prohibiting children from selling sex and trafficking for sexual purposes would remain in force.
The bill expunges the criminal records of people convicted for engaged in, rendering or receiving sexual services from people 18 years or older.
“Criminalising sex work has not stopped the selling or buying of sex, nor has it been effective. If anything, it has led to higher levels of violence against sex workers,” the justice minister said.
He noted that the criminalisation affected mostly women, with a female sex worker usually being the one confronted by law enforcement, while the male client often got off scott free. The National Prosecuting Authority has also indicated a very low percentage of cases or prosecutions of clients.
The department of social development has been advocating the need for the decriminalisation of sex work and deputy minister Hendrietta Bogopane-Zulu facilitated a sex workers dialogue in East London on Thursday.
“The criminalisation of the trade is intricately linked to the ongoing human rights violations and inadequate access to social, justice and health services,” Bogopane-Zulu said. “This can be realised through cooperation from various social partners including sex workers, the government, civil society and religious groups.”
The Commission for Gender Equality has welcomed the introduction of the bill.
Awareness for Child Trafficking Africa co-founder and chairperson Hilary Leong who is fully against decriminalisation but is for the protection of prostituted persons/sex workers also applauded the intended protection of sex workers, noting: “No person chooses to go into prostitution/sex work willingly. That is no person’s dream or aspiration growing up or even in adulthood. It is desperation and or force that gets them there.”
But Leong is against the full decriminalisation of sex work.
“I am for partial decriminalisation which means protect and do not criminalise the prostituted person but criminalise and prosecute the buyer, pimp and brothel,” she said, adding that full decriminalisation would make sexual and gender-based violence and human trafficking more difficult to detect while it would be harder to apprehend perpetrators and syndicates.
“Traffickers will hide behind the legalities of the law and still prostitutes/sex workers will continue to endure a life of hell and abuse as they have succumbed to and this evil becomes more hidden,” she said.
Lamola said decriminalisation would minimise human rights violations against sex workers, in line with the national strategic plan on gender-based violence.
A study by the Institute for Security Studies found sex work to be a decision driven primarily by financial insecurity rather than coercion and exploitation.
The programme manager for the Sex Worker Education and Advocacy Task Force, Phindile Ngwazi, said the organisation would not stop its efforts even after the full decriminalisation of sex work.
Public comment and input on the bill must be submitted to the chief directorate for legislative development at the department of justice and constitutional development, on or before 31 January 2023.