Lobby groups that support the full decriminalisation of sex trade in South Africa have warned that a temporary halt in pushing through the proposed legislation will have dire consequences for those working in the sector.
Regulation of the sex trade appears to be the government’s final hurdle towards decriminalisation, with the justice department not yet having started a consultation process with relevant stakeholders.
Deputy Minister John Jeffery recently said the proposed Criminal Law (Sexual Offences and Related Matters) Amendment Bill must be revised before final approval by cabinet, which had previously given its nod in November before the bill was opened for public comment in January.
But during his speech last month on the department’s budget vote Jeffery said the state’s law advisers had raised concerns about the bill, which repeals the Sexual Offences Act and section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act to decriminalise the sale and purchase of adult sexual services.
The bill also expunges the criminal records of people convicted of participating in, rendering or receiving adult sexual services.
In December, Justice Minister Ronald Lamola said 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. 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.”
Now, following legal advice, the government must include in the amendment bill its plan to decriminalise as well as regulate the sex trade.
“The bill may not pass constitutional muster if it does not also provide for the regulation of sex work. This view is supported by a legal opinion from a senior counsel,” said Jeffery.
“We will not be able to, at this point, proceed with the bill in its current form.”
The temporary halt has triggered both relief and anger among lobbying groups.
“The urgent need to fast-track this bill that the department of justice recognised, is based on the high levels of abuse and human rights violations many sex workers face. We urgently need to remove the criminal sanction,” said Jayne Arnott, the sex workers’ rights specialist at the nonprofit group Sonke Gender Justice.
“The bill was always going to be followed by a process of regulation. This delay means that the bill will be held over until the new administration after elections next year,” Arnott said.
Because of legislative timeframes that accompany the introduction of bills into parliament, it will not be possible to introduce the updated and revised bill before next year’s election, said the justice department’s Steve Mahlangu.
The department must also consult other government departments and stakeholders including the police, social development, health and labour.
Sonke Gender Justice argues that once the sex work industry is decriminalised, it would be largely regulated by existing laws.
“Specific regulations related to, for example, street-based sex work will have to be addressed as current by-laws at a local municipal level are largely used to police and harass sex workers, as well as homeless persons and others,” Arnott said.
“If sex work is seen as an income-generating activity with consenting adults exchanging money for sexual services, it can be regulated with the core focus being on protecting the health and safety of persons selling these services.”
Some have welcomed the delay in the process to decriminalise sex work, including the African Christian Democratic Party (ACDP), which submitted that the bill “flies in the face” of the findings and recommendations of the extensive process conducted by the South African Law Reform Commission (SALRC).
In a 2017 report, the law reform commission said prostitution was exploitation and not work and recommended that it remain fully criminalised or, alternatively, only be partially decriminalised.
“Instead, the department chose the extreme position of decriminalising prostitution, which was not recommended by the SALRC,” the ACDP said in a statement.
Marcel van der Watt, a former sex trafficking investigator for the Directorate for Priority Crime Investigation and now a director of the Research Institute at the National Centre on Sexual Exploitation in Washington DC, is also opposed to the bill.
“We need off-ramps out of the sex trade, and not pave more on-ramps into it. Sex buyers and paying for sexual access to others’ bodies — women and children — should never be tolerated,” Van der Watt said, arguing that fully decriminalising sex trade would lead the industry “to explode”.
“Trafficking will thrive. It is not possible to distinguish between men’s demand for victims of sex trafficking from men’s demand for commercial sex acts.”
According to a report by the United States Agency for International Development and research partners in February, South Africa is a source, transit and destination country for human trafficking, with the majority of detected, reported and prosecuted cases being related to sex trafficking.
The Global Slavery Index compiled annually by the human rights group, Walk Free, said in a May 2023 report countries were not achieving their goals to combat human trafficking.
“No government is on track to achieve the UN sustainable development goal 8.7 of ending modern slavery, forced labour, and human trafficking by 2030.”
The report does note that over the past four years, Nigeria and South Africa have taken the most action on the continent to improve their response to modern slavery. Addressing the National Council of Provinces in early June, Jeffery said the government’s anti-trafficking initiatives “are indeed bearing fruit”.