South Africa (SA) is moving in the right direction in becoming the first nation in Africa to decriminalise sex work. This change in the legal landscape, which occurs decades after the enactment of the Sexual Offences Act 23 of 1957, which replaced the Immorality Act 5 of 1927, is highly respected. The former Act completely declared sex work unlawful, as well as the construction and operation of brothels (see ss 10 and 20), while the latter prohibited ‘illicit carnal intercourse’ between races (see ss 1 through 6). Even so, it was striking to observe that sex workers continued to be denied access to their constitutional rights in a democracy devoted to gender equality and women’s rights. This legislative jurisprudence informed the decision in the case of S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (2) SACR 499 (CC) in which the Constitutional Court supported the criminalisation of sex work based on its illegality. Sex work ‘invites the public generally to come in and engage in unlawful conduct in private’ (para 28), as the majority judgment succinctly stated.

Since S v Jordan, a novel trajectory has emerged that has garnered attention from the public and legal scholarship. A unique perspective on decriminalising sex work is furnished by the much-welcomed Criminal Law (Sexual Offences and Related Matters) Amendment Bill of 2022 (the Bill). According to the Minister of Justice and Correctional Services, Ronald Lamola, the Bill ‘follows the view that the ongoing criminalisation of sex work contributes to [gender-based violence and femicide], 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’ (see BusinessTech ‘New laws to decriminalise sex work in South Africa’ (https://businesstech.co.za, accessed 29-4-2023))

Thus, the Bill proposes to repeal the Sexual Offences Act with its primary purpose to uphold the dignity of sex workers rather than to deter morally reprehensible criminal conduct. This novelty has been applauded because it heightens the minimisation of sex workers becoming victims of human rights violations, increases their access to healthcare and reproductive health services, and ensures that health and safety regulations and labour laws are being followed (see BusinessTech (op cit)). Further, working conditions, more protection for sex workers, and less stigma and discrimination would be ensured. Section 2 of the Constitution, which articulates on the respect and protection of all people, regardless of their sexual orientation, gender, race, etcetera, gives credence to this legal novelty, which supports the above decriminalisation.

Debates on decriminalisation of sex workers in SA

The call for decriminalisation of sex work in SA, however, is not void of legal debates. These debates show two distinct sides of the same coin. On the one hand, it has been argued that decriminalisation may result in an increase of HIV in SA, amidst the reality that it has the world’s largest HIV epidemic, with 19% of all HIV-positive people worldwide, 15% of all new infections, and 11% of AIDS-related deaths (see Human Rights Watch ‘Why sex work should be decriminalised in South Africa’ (www.hrw.org, accessed 29-4-2023)). According to other estimates, female sex workers have HIV prevalence rates that are three to four times greater than those of women in the general population (see Professor Cathi Albertyn ‘Debate around sex work in South Africa tilts towards decriminalisation’ (https://theconversation.com, accessed 29-4-2023)). On the other hand, it has been argued that having sex work unlawful only results in sex workers having less access to healthcare, becoming economically disadvantaged, and being abused by the police and other people who take advantage of their vulnerabilities (see Human Rights Watch (op cit)). Although both arguments have merit, sex workers would be able to access health care, education, and other essential services without fear of being detained or subjected to persecution if sex work were legalised. As a result, this will safeguard their rights to freedom of association, privacy, and human dignity, all of which are protected by the Constitution.

Nonetheless, if this Bill is to become law and implemented as intended, weighing the benefits and drawbacks eminent in its implementation remains crucial. Hence, while acknowledging the novelty that the Bill offers, it is also the intent of this article to highlight the potential challenges that may arise should this Bill become an Act in motion as subsequently mentioned.

Potential challenges

There are several potential challenges that could arise from the decriminalisation of sex work in SA, including:

• Societal stigma: Although the decriminalisation of sex work may be legal, it may still face societal stigma and discrimination. This could lead to sex workers being marginalised and excluded from society, limiting their access to education, healthcare, and other basic services.
• Regulation and enforcement: There may be challenges in regulating and enforcing laws related to sex work, which could lead to exploitation, trafficking, and other forms of abuse. It may also be difficult to ensure that sex workers are protected from violence and exploitation without adequate regulations in place.
• Public health: The decriminalisation of sex work may raise public health concerns, as it could lead to the spread of sexually transmitted infections and other diseases. Ensuring that sex workers have access to healthcare and education on safe sex practices could mitigate these risks.
• Increased demand: Decriminalisation could lead to an increase in demand for sex work, which could further exacerbate the issues of exploitation and trafficking. This could also put a strain on law enforcement and social services.
• Resistance from religious and conservative groups: There may be resistance from religious and conservative groups who view sex work as immoral or unethical, which could lead to social unrest and political pressure against the decriminalisation of sex work.
• Lack of political will: There may be a lack of political will to fully implement the decriminalisation of sex work, which could limit the effectiveness of any legislation and regulations that are put in place.
• Applicability and implementation of labour legislations: It is important to note that the applicability and enforcement of labour laws would have a significant impact if sex work became lawful. This relates to standard wage rates for working hours, sick leave, and other benefits.

Overall, while decriminalisation of sex work may provide greater autonomy and protection for sex workers, it will also require careful consideration of potential challenges and implementation strategies to ensure that it is effective in protecting the rights and well-being of all involved.

Is there a way forward?

While the specifics may vary depending on the country and region, there are some common principles that can guide efforts towards decriminalisation in SA:

• Acceptance of sex work as work: Sex workers should be given the same rights and protections as other workers and should be accepted as an authentic form of employment. This includes the opportunity to create and join labour unions, access to healthcare, and legal protections against exploitation and abuse. The adherence of these of labour practices should further be implemented through policies, health, and safety laws (Michele R Decker, Anna-Louise Crago, Sandra KH Chu, Susan G Sherman, Meena S Seshu, Kholi Buthelezi, Mandeep Dhaliwal and Chris Beyrer ‘Human rights violations against sex workers: Burden and effect on HIV’ (2015) 385 The Lancet 186 at 191-192).
• Focus on harm reduction: Decriminalisation efforts should prioritise harm reduction, which involves reducing the negative consequences of sex work rather than criminalising sex workers themselves. This includes measures such as providing access to healthcare and education on safe sex practices, as well as efforts to address poverty and other structural factors that can contribute to exploitation. In this way, the police need to be actively involved and increased by police liaisons assigned to work with sex workers on abuse issues (see the New Zealand Report of the Prostitution Law Review Committee on the Operation of the Prostitution Reform Act 2003, 2008 cited in Decker, Crago and Chu et al (op cit) at 193).
• Involvement of sex workers: Sex workers should be involved in the development and implementation of policies related to sex work. This can include providing funding and support for sex worker-led organisations and ensuring that sex workers are included in policy discussions and decision-making processes. In this light, advocating to follow legal routes adopted by New Zealand and Australia in this regard should be fostered. For instance, most sex workers in New Zealand attribute decriminalisation to enhanced protection from violence as well as the capacity for negotiating safer sex (see Decker, Crago and Chu et al (op cit) at 192).

While there may be challenges in implementing decriminalisation, including stigma and opposition from conservative groups, there is growing recognition of the need to protect the human rights of sex workers and reduce the harms associated with criminalisation. By prioritising harm reduction, involving sex workers in policy development, and collaborating with other stakeholders, it is possible to move towards a more just and equitable approach to sex work.

Wezi Masuku LLB LLM (NWU) is a lecturer in the College of Law at Unisa and Seraphine Kwanje LLB LLM (NWU) is a  Doctoral Candidate  at  North West University.

This article was first published in De Rebus in 2023 (June) DR 8.