Sex work is still illegal in democratic South Africa
In On the City Wall, a short story by Rudyard Kipling, originally published in 1909, sex work is described as “the oldest profession in the world”. Long before Kipling penned this famous description, the existence of sex work was already inked in Sumerian writings — one of the earliest known records.
Sex work seems to be as old as civilisation but it is illegal in South Africa. The cabinet, however, seeks to change that, as it recently approved the publishing for comment of a bill that seeks to decriminalise it. One of the key reasons the country seeks to decriminalise sex work is because the laws that govern it have always been ineffective.
Democratic South Africa
The unbanning of political parties, the release of political prisoners and the enacting of the Constitution in the 1990s changed the South African landscape. The Constitution created an open society based on human rights, the right to privacy and ubuntu, and it was partly because of the Constitution that calls for the decriminalisation of sex work increased.
The South African Law Reform Commission has previously submitted proposals to the public seeking their input on the legal status of prostitution. In 2002, its discussion paper called for revisions of the Sexual Offences Act and included the possibility of the decriminalisation or legalisation of sex work. In 2017, the commission suggested that sex work should be decriminalised but that third-party involvement should remain illegal.
In 2017, the ruling ANC, at its 54th national elective conference, resolved to decriminalise sex work.
The Sexual Offences Act and the Sexual Offences Amendment Act criminalise sex work and its related activities, such as the keeping of brothels, the procurement of people as prostitutes, soliciting of prostitutes and living off the earnings of prostitution.
The colonial and apartheid laws were ineffective in dealing with sex work. The democratic South African courts have also had to adjudicate on issues related to sex work. In the watershed S vs Jordan case (2002), the constitutional court held that criminalising brothels and sex work was in line with the Constitution. In Kylie vs CCMA (2010), the labour appeal court held that the Labour Relations Act applied to sex workers.
Dutch East India Company
In April 1652, under the colonial administration of Jan van Riebeeck, the Dutch East India Company occupied the Cape Colony, ideally situated on its shipping routes. The first mention of a brothel was in 1681. In this era, the authorities allowed sex work to continue unhindered.
In 1795, the British occupied the Cape Colony. The Contagious Diseases Acts were a series of three laws passed in England in 1864, 1866 and 1869. The aim of the laws was to stop the spread of venereal disease among the British armed forces by examining sex workers or suspected sex workers. Sex workers were seen as a source of illness.
Between 1883 and 1886 there were reports of syphilis in almost half of the districts in the Cape. The Contagious Disease Act was promulgated in the Cape Colony in 1885, calling for the registration and regulation of sex workers. In 1886, the Colonial Medical Committee protested that there were “no less than 400 public prostitutes in the Cape”, over which the government had no medical surveillance.
In 1898, more restrictions were put on sex work — the Cape Town municipality introduced a regulation that punished owners of property used as brothels. The Police Offences Amendment Act, which extended the punishment for soliciting and penalised pimping, was also passed.
Colony of Natal
The Colony of Natal administrators tried to implement the Contagious Disease Act in 1886. The act sought to regulate and control sex workers, as they were blamed for the spread of syphilis and gonorrhoea. The introduction of this act failed; it was first thrown out in the legislative council, and later, after another attempt to pass it, the secretary of the colonies refused to give a Royal Assent.
In 1882, the Police Offences Act penalised any “prostitute who loiters or is in any public place for purposes of solicitation or prostitution to the annoyance of the public”. The punishment was either a fine or imprisonment.
In 1890, police estimated that there were almost 200 sex workers in Natal, the majority of whom were in Pietermaritzburg. The authorities there hardly suppressed brothels but their counterparts in Durban did.
The commercialisation of gold in the Transvaal in 1886 led to an increase in companies and population. During the first 10 years of large-scale gold mining, there was very little regulation of sex work in the Witwatersrand. It is estimated that by the end of the 1800s about 10% of women in Johannesburg were sex workers.
In 1902, the Transvaal passed legislation which stated that: “Every male person who knowingly lives wholly or in part on the earnings of prostitution … shall be guilty of an offence.” The legislation also penalised the activities of male prostitutes.
Union of South Africa
In 1910, the colonies were unified to form the Union of South Africa. A year after the formation of the union, Act No 41 of 1911 was passed, which stated that: “Any person who, being the keeper or having the management of any place of public resort, shall knowingly permit pimps or prostitutes to frequent such place … shall be liable for conviction.” The act’s focus was on brothel owners.
Interracial sexual relations were deemed to be immoral. It was to this effect that the Immorality Act No 5 of 1927 was passed, which prohibited interracial sex. The act also prohibited “procuring” women for interracial intercourse and an African woman could be imprisoned for up to six years for provoking a white male to have intercourse with her.
In judgments of this time, the courts often viewed sex workers as unreliable characters. In the Rex vs Christo case, the court held that before a court accepts testimony from a prostitute, it must be amply corroborated.
Apartheid was formally established in South Africa in 1948 when the National Party took over. The apartheid regime passed the Immorality Act No 23 of 1957, which replaced its 1927 namesake. The 1957 Act prohibited the running of a brothel and procuring and living off the proceeds of prostitutes.
Despite these laws, sex work continued. For example, anthropologist Sheila Patterson noted that “visiting ships’ crews were said to frequent night clubs and dives in Cape Town”.
The courts of the time lessened the seriousness of the rape of a sex worker. In the obiter dictum of R vs Sibande, the court stated that: “Rape upon a prostitute, for example, though it is the crime of rape, would not ordinarily call for a penalty of equal severity to that imposed for rape upon a woman of refinement and good character.”
Towards the end of the 1970s there were calls for the decriminalisation of prostitution. In 1977, the Cape Town medical officer of health Reg Coogan asserted that its proper policing lay in its legalisation and parliament held a debate about sex work decriminalisation in 1988.
In 1988, the apartheid regime put any hope of decriminalisation to bed when it passed the Immorality Amendment Act No 2 of 1988. This made it a criminal offence to engage in sexual activities for reward.
Morals have changed
The history of sex work in South Africa clearly shows how various governments have struggled to police it. The colonial period saw sex work as a source of illness; the apartheid system saw it as an enabler of interracial relations. The democratic government seems to have at least created an environment where calls for decriminalisation of sex work are no longer seen as a taboo.
Twenty-nine years after the interim constitution, the country’s morals have changed, constitutionalism has been entrenched, and the legislature has become more robust; this gives the country an opportunity to decriminalise the world’s oldest profession.
Why sex work should be legal
According to Human Rights Watch, decriminalising sex work enhances sex workers’ legal protection and their ability to access key rights, such as justice and healthcare. Legal recognition of sex workers and their occupation maximises their protection, dignity and equality. The organisation has consistently found in research across various countries that criminalisation “makes sex workers more vulnerable to violence, including rape, assault and murder, by attackers who see sex workers as easy targets because they are stigmatised and unlikely to receive help from the police”.
Criminalising adult consensual sex, including the commercial exchange of sexual services, is also incompatible with the human right to personal autonomy and privacy. No government — especially South Africa’s, considering our Constitution — should be telling consenting adults who they can have sexual relations with and on what terms.
Thifhelimbilu Meshack Nembudani holds a BA and an LLB cum laude. He is currently working as a candidate attorney.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.