New laws decriminalising sex work in South Africa hit a major roadblock

 ·5 Jun 2023

New laws aimed at decriminalising sex work in South Africa have run into a major legal hurdle.

In November 2022, Cabinet gazetted the Criminal Law (Sexual Offences and Related Matters) Amendment Bill for public comment.

The sole aim of the Bill is to decriminalise the sale and purchase of sex work in South Africa, with a particular focus on limiting Gender-Based Violence and Femicide (GBVF).

On a technical level, this means that the Bill will repeal the Sexual Offences Act (previously the Immorality Act) of 1957 and Section 11 of the Criminal Law (Sexual Offenses and Related Matters) Amendment Act of 2007.

“This follows the view that the ongoing criminalisation of sex work contributes to GBVF, as it leaves sex workers unprotected by the law, unable to exercise their rights as citizens and open to abuse generally, not least when they approach State facilities for assistance,” Justice and Constitutional Development Minister Ronald Lamola said.

In addition, despite current legislation and municipal by-laws criminalising sex work, it has not stopped the selling or buying of sex services, according to the minister.

“If anything, (criminalisation) has led to higher levels of violence against sex workers. In addition, criminalisation affects women predominantly, with the female sex worker usually being the one who is confronted by law enforcement, but the male client isn’t.”

The new laws intend to minimise human rights offences against sex workers, allow them better access to health care and reproductive health services, and ensure compliance with health, safety, and labour legislation.

In November, Lamola said that Bill would follow a “two-step approach”, where decriminalisation via legislation would proceed with regulation of the industry.

“It [is] important to deal with decriminalisation first to ensure that sex workers are no longer criminally charged,” the minister said.

However, this “two-step approach” has now given the department a major headache it must remedy.

Speaking before National Assembly, Deputy Minister of Justice and Constitutional Development John Jeffrey said that several issues had been raised by the State Law Advisors in preparation for the Bill to receive final approval from Cabinet.

According to Jeffrey, the State Law Advisors argued that the Bill may not pass constitutional muster if it does not provide for the regulation of sex work.

He added that a legal opinion from Senior Counsel agrees with this viewpoint.

“This means that we will not be able to, at this point, proceed with the Bill in its current form,” Jeffrey said.

Next steps 

Jeffrey said that the department would start negotiating with role-players to draft regulations for sex work in South Africa.

He said this would ensure that a revised Bill is ready for introduction when the next Administration takes over – with the current Administration in its final year.

“The decriminalisation of sex work and the human rights of sex workers remain high on the government’s human rights agenda,” Jeffrey concluded.

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