Sex work is illegal in South Africa. Sex work is criminalised in the Criminal Code, and municipal by-laws also contain provisions that prohibit sex work such as “importuning any person for the purpose of prostitution” and “soliciting”. Sex workers have very little legal protection.
The laws and subsequent marginalisation of sex workers makes them more vulnerable to assault by the police, clients, third parties and brothel owners. Sex workers are often targeted by the police and are more vulnerable to violence because they have to work in dangerous and isolated locations to evade attention. The current South African approach to sex work is that of criminalisation and prohibition.
On 26 May 2017, South African Minister for Justice and Correctional Services Michael Masutha spoke to the press about the launch of the Report on Sexual Offenses: Adult Prostitution conducted by the South African Law Reform Commission (SALRC). The report was written in 2015, but released in May 2017. He stated:
“[The] South African government has a constitutional responsibility to promote values of human dignity, the achievement of equality and advancement of human rights and freedom. It is important to note that, the government is not constitutionally obligated/bound to change the existing law or to follow a particular model – it is a policy choice and there are a range of legal responses possible to address prostitution in open and democratic societies. A change of the law will only be embarked on if a policy decision has been made to do so and after that matter has been properly interrogated in Parliament."
The Report failed sex workers. The Commission views sex work as violence against women, and perpetuates the understanding that sex workers are victimised because of their employment, and not because of the context in which their work occurs. It does not recommend the decriminalisation of sex work. In fact, it advocates for no change in law. It fails to meaningfully address violence against sex workers. It fails to recognise the evidence-based research that demonstrates the benefits of the decriminalisation of sex work on sex workers health, well being, and human rights.
The report recommends sex workers be rehabilitated. They could avoid jail time if they are rehabilitated through a 'diversion programmes' that providr ‘intensive therapy’ and vocational training.
According to Marlise Richter in a blog post on the Sonke Gender Justice website, “the current criminal law – the one the commission says must stay – has contributed directly to a climate in which sex workers are murdered, abused, raped, exposed to HIV and dumped like cheap chips wrappers. How does ‘more of the same’ address the problem of violence and risk and broken female bodies?”
Sex worker-led organisations and sex workers’ right activists have continued to advocate for legislation that recognises sex work as work, and allows the industry to be governed by existing labour and business laws intended to prevent unsafe, exploitative and unfair business practices.
The Commission released a Discussion Paper in 2009 highlighting four options that South African law could follow regarding sex work: full criminalisation, partial criminalisation, legalisation and decriminalisation. NSWP Members SWEAT and SISONKE continue to advocate for the decriminalisation of sex work despite this set back, and outlined in their advocacy video which can be reviewed here.