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2.1 It is a criminal offence to work as a prostitute in South Africa. Prior to 1988, this was not the case. Although various acts associated with prostitution, for example, soliciting, brothel-keeping and procuring were regarded as offences under the Sexual Offences Act,[21] the exchange of sexual acts for reward was not penalised. The amendment of the Sexual Offences Act to include section 20(1)(aA) however changed this position by criminalising the performance of sexual acts for reward.[22]
Government initiatives
2.2 The advent of democracy in 1994 appears to have led to a gradual recognition of a need to review the current approach to prostitution.
2.3 During 1995, the Department of Health requested two researchers at the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand to investigate possible strategies for regulating prostitution.[23] The researchers compiled a draft Bill on Prostitution.[24]
2.4 In 1996, the Gauteng Cabinet Committee on Safety and Security and Quality of Life mandated the Gauteng Ministry of Safety and Security to draft a policy document on prostitution.[25] The mandate also included monitoring the ways in which police utilised their resources in policing prostitution with the view to consider reprioritising of policing activities.
2.5 The Ministry produced a draft policy document, which recommended the decriminalisation of prostitution, and the document was distributed to a wide range of role players for comment. This process resulted in the setting up of a Task Team to report to the provincial Cabinet. The Gauteng Cabinet eventually endorsed and approved the Task Team’s recommendations as set out in its final report.[26] The Task Team unequivocally recommended the decriminalisation of (adult) prostitution.[27]
2.6 The Gauteng proposals for decriminalisation received support from (inter alia) the African National Congress at its national conference in Mafikeng in 1997.[28] Western Cape premier Gerald Morkel also joined in calling for the decriminalisation of prostitution.[29] The initiative however lost momentum in 1998 with the resignation of the MEC for Safety and Security, Ms Jessie Duarte, in March of that year.[30]
2.7 In its first country report to CEDAW,[31] submitted in 1997, the South African government reported on the present status of the law regarding prostitution, and noted that current laws on prostitution may violate some constitutional rights.[32] According to the report, these rights include the right to equal protection and benefit of the law; the right to have one’s dignity respected and protected; rights to freedom and security of the person; the right to privacy; the right to freedom of association; and the right to choose one’s trade, occupation or profession.
2.8 In 1998, the Commission on Gender Equality[33] apparently[34] produced a brief position paper supporting the decriminalisation of sex work and conducted research on options for legal reform.
2.9 Although the draft gender policy of the Department of Justice, as cited in South Africa’s report to CEDAW, envisaged the inclusion of decriminalization of prostitution, such proposal was not included in the (final) Gender Policy Statement published in May 1999.[35] In this Statement, the Department identified trafficking in women and children as one of its strategic areas of intervention.[36] The Department committed itself to the creation of a legal environment to eliminate all forms of trafficking in women and children. This legal framework will:
C Ensure that all women and girl children enjoy the right to freedom and security of the person regardless of economic or occupational status;
C Contribute towards the promotion of national health by minimizing the spread of HIV and other STD’s;
C Help eradicate the exploitation and abuse of, and discrimination against, women involved in prostitution and thus enable South Africa to comply with article 6 of CEDAW; and
C Enable the Department to comply with its obligations in terms of the Beijing Platform of Action.[37]
2.10 The document notes that international obligations in terms of CEDAW and the Beijing Platform For Action require the adoption of measures to protect women involved in prostitution from abuse and exploitation.[38] Violent abuse is the main concern in this regard.[39]
2.11 The document then proposes inter alia the following activities in its Implementation Strategy for this area:
2.12 During September 2000, the Ministry of Health scheduled a visit to a well-known brothel, The Ranch, situated in Sandton.[41] This visit, according to a departmental spokesperson, formed part of ‘the department’s initiative to have the adult commercial sex-work industry decriminisalised and regulated’.[42] A delegation including, amongst others, Director-General Dr Eddie Mhlanga, accordingly visited The Ranch on 22 September 2000.
2.13 Subsequent to the visit, Dr Mhlanga was quoted as saying:
‘We believe that the sex industry in South Africa is alive and thriving, and we need to engage roleplayers in that field so that we can protect the health of the women involved’.[43]
2.14 Since 1994, a number of civil society initiatives developed in response to the needs of adult prostitutes. On political level, the African National Congress has also given specific attention to the legal status of prostitutes. These developments are briefly discussed below.
2.15 In November 1994, the Sex Worker Advocacy and Education Taskforce (SWEAT) was initiated in Cape Town in response to a need to address HIV/AIDS issues and human rights abuses experienced by persons working in prostitution.[44] The presence of a vocal human rights-oriented organisation dealing exclusively with prostitution has done much to focus public attention on this issue, and has also ensured an increasing recognition of the need to re-examine the current legal status of prostitution.
2.16 A national network of organisations working towards a change in the legal dispensation was founded in January 1996. DECPRO (‘Decriminalisation of Prostitution Network’) included members of organisations such as SWEAT and Lawyers for Human Rights as well as academics from the Law Faculties of the University of Natal (Pietermaritzburg) and the University of the Western Cape. DECPRO produced two documents, viz. a draft document on decriminalisation of commercial sex work,[45] as well as a ‘code of conduct’ for policing of prostitution-related matters. A lack of funding resulted in the subsequent demise of the Network.[46]
2.17 At its 50th National Conference in Mafikeng in 1997, the African National Congress firstly resolved that the Democratic Government should take the appropriate measures to remove all legislation that makes ‘commercial sex work’ a criminal offence. Secondly, it resolved that the Department of Health should take the appropriate measures to ensure that persons engaged in ‘this occupation’ have regular and confidential access to the public health system as a means of curbing the spread of all sexually transmitted diseases.[47]
2.18 During 4-5 May 2000, SWEAT and the Women’s Legal Centre jointly hosted a conference on prostitution in Cape Town. The Deputy Minister of Justice, Ms Cheryll Gilwald, was the keynote speaker, and noted in her address that the issues to be addressed in the Commission’s investigation on adult prostitution included protecting prostitutes from violence, exploitation and coercion and affording them the rights enshrined in the Bill of Rights.[48]
2.19 Conference presentations focused on the current legal status of prostitution and strong calls for reform were heard. Speakers were in agreement that the prostitution industry should be decriminalised.[49]
2.20 A second national conference focusing on the health aspects of prostitution was held in Gauteng during 17-18 February 2001. Hosted by the Reproductive Health Research Unit (University of the Witwatersrand), the Conference focused on predominantly on issues relating to HIV/AIDS. During the two-day conference, a group of prostitutes attending the proceedings issued a statement highlighting some of their concerns and needs.[50] These concerns included the following:
‘We need more specific information about legalisation and decriminalisation of prostitution, and options for law reform...’
‘Legalize for us. We need a safe environment free of police.’
‘Legalize. We need an end to police harassment.’
2.21 At the time of going to press, two challenges to the constitutionality of the Sexual Offences Act are making their way through the South African courts.
2.22 The first matter, Jordan and Others v The State,[51] was argued in the Constitutional Court on 5 March 2002.[52] Judgment was reserved. The second challenge, National Director of Public Prosecutions v Phillips and Others,[53] apparently awaits the outcome of the Jordan matter in the Constitutional Court before being taken further.[54]
[21] Sections 19(a), 2 and 10 respectively.
[22] See Chapter 6 below for a discussion of the legislative history of this provision.
[23] R Rossouw ‘Streetwalkers come in from the cold’ Mail & Guardian (1-7 September 1995).
[24] It could not be established what happened to this Bill.
[25] S Rakgoadi ‘Sex work: decriminalisation’ Unpublished paper presented at SADC Conference on Prevention and Eradication of Violence Against Women (Durban, March 1998).
[26] Task Team, Gauteng Province Decriminalisation of Sexwork (Final Report) 1997.
[27] Ibid at 7-8.
[28] Rakgoadi (op cit). See also discussion below.
[29] T Leggett ‘The least formal sector: women in sex work’ Crime and Conflict No 13 (1998) at p 21.
[30] Ms Duarte’s office was central to the development of the initial policy document. Leggett also explains the loss of impetus as follows: ‘... but the two provinces were shortly rebuked with a reminder that, as the matter is governed by national legislation, there is nothing the provincial authorities can do but re-prioritise enforcement as a matter of local policy.’ – see Leggett (loc cit).
[31] The UN Committee on the Elimination of Discrimination Against Women is tasked with overseeing the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women [hereinafter referred to as ‘CEDAW’]. States parties who ratify this CEDAW are required to submit its first report to the Committee one year after ratification.
[32] South Africa’s Initial Country Report at Article 6.
[33] The Commission on Gender Equality is established in terms of section 187 of the Constitution.
[34] Attempts to obtain a copy of this document failed.
[35] Department of Justice Gender Policy Statement: Balancing the Scales of Justice through Gender Equality (May 1999) 2nd ed.
[36] Idem at 10.
[37] Idem at 15.
[38] Idem at 16: ‘Our own departmental commitments as presented to the National Conference on the Implementation of the Beijing Platform for Action include the commitment to: “... review sexual offences legislation to decriminalise where necessary and to ensure greater protection of women”.’
[39] Ibid.
[40] Ibid.
[41] Health Reporter ‘Brothel-probing minister wants sex work legal’ The Star (21 September 2000).
[42] Ibid.
[43] L Altenroxel ‘Back at the Ranch, health officials talk sex’ The Star (23 September 2000).
[44] Petzer and Isaacs ‘SWEAT: The development and implementation of a sex worker advocacy and intervention program in post-apartheid South Africa (with specific reference to the western city of Cape Town)’ in Kempadoo and Doezema (eds) Global Sex Workers: Rights, Resistance and Redefinition (1998) at 193.
[45] DECPRO Decriminalisation of Commercial Sex Work in South Africa – An Exploratory Survey (1997) [copy on file with S A Law Commission].
[46] Ms Helene Combrinck was a member of DECPRO.
[47] Draft Conference Resolutions [on file with S A Law Commission]. Leggett op cit points out that this decision appears to be absent from the final Congress resolutions – at 21.
[48] Women’s Legal Centre Conference Report: Adult Commercial Sex Work - Decriminalisation or Regulation [Internet].
[49] See the following conference papers: J Sloan ‘Overview of issues affecting the adult commercial sex work industry’; S Delany ‘The legal status of adult sex work – why health services should work with the sex industry’; L Malepe ‘Adult commercial sex workers – decriminalisation or regulation?’; H Combrinck ‘”Control and contain”; J Gardner ‘Legalisation/regulation of adult commercial sex workers – indoor sex workers’.
[50] Sex workers from Mothusimpilo Project, HTA (Port Elizabeth), SWEAT, Danzine, COYOTE, AIM Sex Workers Speak Out Unpublished statement: South African Conference on Sex Work: The Health Issues, Johannesburg, 19-20 February 2001.
[51] 2001 (10) BCLR 1055 (T), 2002 (1) SACR 17 (T).
[52] The case is discussed in more detail in Par 6.136 et seq below.
[53] 2001 (2) SACR 542 (W).
[54] This application is discussed below in Par 6.146 et seq below.
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