On 30 November 2022 Cabinet approved the publishing of the Criminal Law (Sexual Offences and Related Matters) Amendment Bill of 2022 regarding the decriminalization of sex work for public comments. The Bill repeals the Sexual Offences Act (previously Immorality Act), 1957 (Act No. 23 of 1957). It also repeals Section 11 of the Criminal Law (Sexual Offenses and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007) to decriminalise the sale and purchase of adult sexual services.
Sex work and the question of how the South African legal system should respond to sex work and related activities has been the subject of considerable debate in South Africa.
Sex work is driven by a complex intersection of social and economic factors in which poverty, unemployment and inequality are key drivers. Within the current South African context the debate around sex work has been complicated by high levels of unemployment, crippling poverty, burgeoning numbers of migrant and illegal foreign job seekers, high levels of sexual violence against women, the HIV/AIDS epidemic, drug/substance abuse and targeted exploitation of women engaging in sex work by third parties, authorities and buyers.
The proposals of this Bill respond to the list of interventions proposed in Pillar 3 (Protection, Safety and Justice) of the National Strategic Plan on Gender-Based Violence and Femicide, which enjoins the criminal justice system to provide protection, safety and justice for survivors of GBV, and to effectively hold perpetrators accountable for their actions.
Pillar 3 of the National Strategic Plan on Gender-Based Violence and Femicide contains a list of key interventions, key activities and indicators. One of the key activities under Pillar 3 is “finalisation of legislative process to decriminalize sex work – fast-tracking and promulgation.” This follows the view that the on-going 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.
Currently sex work is criminalised by way of two statutes, namely the Sexual Offences Act, 1957 (Act No. 23 of 1957) (previously called the Immorality Act) and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32, 2007 (Act No. 32 of 2007). The legislative framework that currently regulates sex is also fragmented as the Sexual Offences Act, 1957 has already been partially repealed with the remaining sections on sex work awaiting review.
There are also municipal by-laws which impact on selling sex, with, for example, certain municipalities using the “nuisance” or “loitering” by-laws to remove or prosecute sex workers.
The South African Law Reform Commission’s (SALRC) Report on Adult Prostitution was released for public comment in 2017. The SALRC’s preferred option was to retain a totally criminalised legal framework, while the second option favoured partial criminalisation.
But criminalising sex work has not stopped the selling or buying of sex, nor has it been effective. If anything, it has led to higher levels of violence against sex workers. In addition, criminalisation affects predominantly women, with the female sex worker usually being the one who is confronted by law enforcement, but the male client isn’t. The National Prosecuting Authority has also indicated a very low percentage of cases or prosecutions for such transgressions.
At the time of the release of the SALRC Report in 2017 Cabinet decided not to make a policy choice at that stage and that the issue of sex work should be further debated. The governing party, in its 54th National Conference Resolutions, also stated that “the calls to decriminalise Sex work must be subjected to a high level discussion and engagement with relevant multiple stakeholders, and to continue to engage society on this to determine the societal norm. Sex workers must be protected.”
In line with the NSP on GBV it is hoped that decriminalisation will minimize human rights violations against sex workers. It would also mean better access to health care and reproductive health services for sex workers, as well as compliance with health and safety and labour legislation. It would also afford better protection for sex workers, better working conditions and less discrimination and stigma.
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. Decriminalisation will de-stigmatise sex work and enable access to basic services and protection by law enforcement agencies. Existing laws prohibiting children from selling sex and trafficking for sexual purposes, remain in force.
With regards to regulation, municipal bylaws would still be able to provide where solicitation in public spaces may or may not take place, for example, prohibiting the selling of sex in certain areas. This is similar to the prohibition on the location of taverns and shebeens, where there can be restrictions imposed to prohibit trade in residential neighbourhoods, near schools and/or religious buildings.
The Bill further seeks to ensure that South Africa complies with its obligations conferred in terms of International Instruments. (For example, in the Concluding Observations on the initial report of South Africa on the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) by the UN Committee on Economic, Social and Cultural Rights, the Committee was concerned that sex workers do not enjoy the rights covered by the ICESCR, owing to the criminalisation of the sale of sex. The Committee recommended that South Africa consider decriminalizing the sale of sex.)
With regards to the clauses of the Bill, Clause 1 aims to repeal the Sexual Offences Act, 1957 and section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. Clause 2 deals with expungement of criminal records of persons convicted of, engaged in, rendering or receiving sexual services from persons 18 years or older. Clause 3 of the Bill deals with transitional provisions pertaining to criminal proceedings, relating to sexual services rendered or received by persons 18 years or older, which were instituted prior to the commencement of this Act. Clause 4 of the Bill deals with the short title and commencement.
The Bill has been published today for public comment. Members of the public are encouraged to participate in the legislative development process, by making inputs in order to improve the Bill.
The comments on the Bill must be submitted to the Chief Directorate: Legislative Development on or before 31 January 2023. The contact details are:
The Director-General: Justice and Constitutional Development
Private Bag X 81
marked for the attention of Tsietsi Sebelemetja; or
E-mail address: Bills1@justice.gov.za; or
Fax nr: 012 406 4632.
Further information can be obtained from the Chief Directorate: Legislative Development at 012 406 4769/4753.