|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South African Law Commission |
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
5.1 Adult commercial sex work in South Africa encompasses a broad range of activities and enterprises – including the adult pornographic media industry, massage parlours, live performances such as ‘strip’ shows, brothels, escort agencies and outdoor or street prostitution.
5.2 In legal terms, the adult pornographic media industry can to a large extent be described as legalised: the Films and Publications Act[261] provides for the lawful possession, distribution and exhibition of adult pornographic material, provided that these actions take place within the framework constructed by the Act.[262]
5.3 Although the sector of the adult commercial sex industry generally referred to as ‘prostitution’ is formally criminalised, the system in practice is a hybrid mixture of criminalisation and legalisation.[263] There are also instances where criminal prohibitions, though formally in place, are not enforced by police or the prosecuting authorities.
5.4 It should be noted that although the majority of persons working as prostitutes in South Africa are women, there is also a significant percentage of male and transgendered prostitutes. The number of women making use of the services of prostitutes is negligibly small.
5.5 In this Chapter, present trends in prostitution in South Africa are examined. Due to the current criminalised status of the industry, reliable data on prostitution is difficult to obtain.[264] (It is, for example, difficult if not impossible to estimate the number of persons working in prostitution in South Africa.) This obviously limits the extent of this situational analysis. In addition, the prostitution scenario also continually changes according to such variables as the general economic climate, law enforcement trends, drug trends, patterns of migration, seasonal considerations, and the viability of alternative informal opportunities.[265] An additional feature that makes precise analysis of the prostitution industry difficult, is its transitory nature – persons working in prostitution constantly enter and leave the industry.[266]
5.6 However, certain trends have begun to emerge from recent research and intervention projects. Research projects have focussed inter alia on the following aspects of adult prostitution:[267]
5.7 Due to the specific focus of this Issue Paper, child prostitution is not examined here.[275] The Commission however recognises that children are to be found working in both indoor and outdoor prostitution in South Africa,[276] and also notes with concern the increasing extent to which children form part of the South African prostitution industry.[277] The Commission has taken a strong position against child prostitution, as set out in the Discussion Paper on Sexual Offences.[278]
5.8 Indoor prostitution occurs within brothels, escort agencies, massage parlours, private homes, clubs, hotels and bars and brothels. The range of indoor prostitution enterprises thus covers commercial, residential and industrial zones, as well as known ‘night life’ areas.[279]
5.9 Researchers have distinguished different sectors within the indoor industry. Posel, for example, identifies at least four categories of urban prostitutes working in Durban:[280]
5.10 The author further notes that each sector has unique working conditions and shows its own demographic patterns.[284] While Posel’s study is specific to Durban, her analysis applies mutatis mutandis to prostitution in other major urban centres in South Africa.
5.11 Two forms of prostitution that defy clear categorisation as either ‘indoor’ or ‘outdoor’ prostitution are the informal culture of informal prostitution that has developed around the mines, where women provide a variety of services to the miners for pay (including the brewing of beer and sexual services)[285] and the prostitution sector that has developed to service the trucking industry.[286]
5.12 In addition to the more formal indoor businesses, there are also smaller informal ‘agencies’ that run without clear management or ownership structures.[287] These may, for example, consist of a group of prostitutes who have come together as an informal collective to work from the same premises.[288] They generally share rent and expenses, but do not have to give a cut of their earnings to any management structure.
5.13 Prostitutes working privately are therefore more able to set the conditions under which they work. For example, they place their own advertisements, make their own bookings and choose their own hours. However, these workers do not have the same level of protection as workers who work in agencies with other people always on the premises.[289]
5.14 Some owners interviewed by Zetler indicated that they do not in fact ‘employ’ any of the prostitutes working at their establishments. Rather, they are letting their premises to prostitutes on an hourly basis, which means that these persons are operating as ‘independent contractors’.[290]
5.15 An arrangement of this nature would imply that even if the contractual relationship between management and prostitutes were to be recognised as ‘legal’ in the future, these prostitutes may fall outside the ambit of labour legislation aimed at regulating the employment relationship and providing protection to employees.
5.16 In South Africa, indoor businesses and ‘call girls’ advertise their services freely in daily newspapers and other publications, irrespective of the fact that the industry is strictly speaking criminalised.
5.17 It is even more difficult to establish an accurate profile of the outdoor sector than of the indoor sector. This is due to a number of reasons, including variations between geographic areas and the transitory nature of outdoor prostitution (which is more prone to random entrance into and exit from the industry than indoor prostitution).[291] Due to high levels of distrust of ‘strangers’ prevalent among outdoor prostitutes, researchers often experience difficulties obtaining information.[292]
5.18 However, it should be acknowledged that indoor prostitution usually implies either a concession to some level of control or selection (for example, when working for an escort agency or brothel) or the financial ability to access premises from which to work (in the case of ‘private’ indoor prostitution).
5.19 At the risk of generalisation, it may be said that outdoor prostitutes are typically in a more vulnerable socio-economic position, as evidenced by the fact that ’survival’ or subsistence prostitution is more prevalent outdoors.[293] Outdoor prostitutes tend to be poorer and have lower education levels than prostitutes working indoors.[294] Street prostitutes also do not benefit from HIV education and condom distribution provided by indoor agencies. In addition, they face greater community intolerance than those working indoors.[295]
5.20 Outdoor prostitutes however offer a number of explanations for their decision to work on the street rather than indoors:
‘Street-walkers said that they preferred walking the beat because business was far brisker and the turnover higher. One street-walker explained that in order to make contact with a client in a club or hotel one first had to spend hours talking to a man who in the end might not be interested in doing business’.[296]
5.21 Based on research conducted with 349 street prostitutes in Durban, Cape Town, and inner city Johannesburg, Leggett distinguishes two groups of outdoor prostitutes, which he terms ‘fast living’ and ‘subsistence’ prostitutes respectively.[297] He notes that ‘fast living’ prostitutes are generally located in or near the central business districts of each city (Greenpoint in Cape Town, the Point / Beachfront area in Durban and near certain residential hotels in greater Hillbrow in Johannesburg).
5.22 This group was characterised by high client volumes, higher than average rates for sexual services, higher incomes and high levels of drug abuse. These prostitutes were more likely to be white, and older than the average.[298]
5.23 Virtually all the prostitutes interviewed in inner city Johannesburg were housed in daily accommodation hotels in the greater Hillbrow area.[299] Similarly, 75% of the prostitutes in the Durban Central Business District resided in residential hotels.[300] Cape Town showed a greater range of housing options, with women often living together with a large number of housemates in a free-standing home.[301]
5.24 ‘Subsistence’ prostitutes, on the other hand, were found in more remote and isolated areas such as industrial zones, truck stops and townships. For this group, client volumes and incomes were low. Use of drugs other than alcohol and dagga was rarely reported. These prostitutes were more likely to be black. Many were living in informal settlements and supporting families with their earnings. Nearly 40% of all black prostitutes interviewed had migrated to the major cities from the Eastern Cape.[302]
5.25 The term ‘pimp’ generally refers to the ‘manager’ of a prostitute who works on the streets.[303] The notion of a ‘pimp’ typically evokes heated responses, with prostitutes being portrayed as helpless victims of exploitative practices. While it would not be accurate to deny this picture wholesale, particularly in light of the increase in organised criminal syndication of the industry, it is certainly also important to note that research results, as well as the experience of organistions such as SWEAT, do not bear out the stereotypical image of ‘pimping’.[304]
5.26 The relationships between prostitutes and ‘pimps’ appear to vary. Pauw and Brener report that the majority of prostitutes in their research sample worked independently. (However, a few worked with boyfriends or husbands).[305] The relationships between prostitutes and these ‘pimps’ were seldom abusive and exploitative. The primary function of the pimps was to offer assistance to prostitutes by protecting them while they solicit clients, safeguarding their money and belongings and taking down registration numbers of clients’ vehicles.[306] The authors noted that in certain areas, groups of prostitutes employed men as bodyguards.
5.27 Similarly, Leggett’s earlier Durban study showed that very few of the women interviewed had ‘boyfriends’ or pimps on the street: the most common response was that ‘they are too expensive’.[307]
5.28 Due to the fact that prostitution is illegal, protective measures contained in labour legislation such as the Basic Conditions of Employment Act[308] or the Occupational Health and Safety Act[309] do not apply to prostitutes.[310] This means that even where prostitutes are forced to work in agencies under circumstances approximating slavery, they would not have recourse to the remedies available to other workers.
5.29 One advantage to working in the indoor sector is that these persons can acquire regular flats and bank accounts, as they work for ‘ostensibly legitimate businesses’.[311] They also earn more than street prostitutes, although a substantial percentage of their earnings may have to be given to the management. In most cases, workers have no discretion in selecting clients.[312]
5.30 In the majority of prostitution businesses, prices are set by the management. Prostitutes are not allowed to undercut management prices, but are able to accept tips (over and above the preset fee) from clients.[313]
5.31 Prostitutes usually need to cultivate a good working relationship with management in order to get ‘bookings’, as managers are generally responsible for assigning clients to individual prostitutes. This gives management a degree of power over workers, since they are the ‘gatekeepers’ as far as clients are concerned.[314]
5.32 Due largely to the fact that the ‘employment’ relationship between management and prostitutes is not regulated by law, certain basic conditions of employment are not adhered to by ‘employers’. Zetler notes, for example, that there is generally no payment for overtime structured into wages.[315] Sick leave is rarely granted. Not one agency included in this survey had holiday leave structured into employment practices.
5.33 Management generally does not expect prostitutes to remain at a particular business for a long period of time; there is also a lack of understanding relating to the benefits of taking leave or sufficient time off from work to relax. This appears to result in what has been termed ‘worker burnout’. In addition, management stated that clients like to see new faces: prostitutes are thus not necessarily encouraged or expected to work at a particular establishment for long periods of time.
5.34 Working hours vary considerably amongst businesses. Management sets working hours, and the duration of shifts differs greatly. In some cases, prostitutes are only required to be present once there is a request from a client; in other instances, prostitutes are expected to spend up to twenty hours a shift on the premises. Working hours are frequently mentioned by workers as being too long. Several businesses included in Zetler’s survey did not allow workers to leave the premises when they were on shift duty.[316]
5.35 In the majority of indoor businesses a fining system is in place to act as a ‘punishment’ for overstepping rules.[317] The fining system is a constant source of conflict between management and prostitutes. Fines are set by management and reportedly range from R5.00 - R1000.00.
5.36 The ramifications of the fact that prostitutes cannot claim recourse to labour legislation and concomitant remedies were recently illustrated when a group of prostitutes working in a brothel in Cape Town obtained an interim interdict against management to refrain from violating their basic rights.
5.37 During June 1999, SWEAT obtained a High Court interdict against the management of an escort agency,[318] preventing them from infringing on the human rights of prostitutes working at the agency.
5.38 The interdict was based on statements indicating that escorts were forced to work excessive hours (in some cases 19 hour shifts per day),[319] could not leave the premises and were not allowed to have personal visitors.[320] In addition, prostitutes were expected to share their beds with other workers and were threatened that the nature of their work would be revealed to their family members if they did not ‘toe the line’.[321] The brothel management confiscated and held their identity documents and other personal documents, and often failed to hand over money earned by and due to the prostitutes.[322] Since the agency was recruiting prostitutes from Gauteng, KwaZulu-Natal and the Eastern Cape, these women had almost no support system in Cape Town, making it very difficult for them to leave the agency.
5.39 During October 2000, SWEAT again received complaints regarding forced labour at the agency. This complaint was forwarded to the Department of Labour. The Department conducted an inspection of the premises and found that prostitutes on the premises were apparently not being treated in accordance with common labour practices, and that conditions at the premises appeared to be in contravention of the earlier interdict.
5.40 On 27 October 2000, an application was made to the Cape Town High Court for the management to be found in contempt of the interdict granted in June 1999. An interim interdict was issued on the same day, with a return date of 23 November 2000. The matter was eventually settled on 29 November 2000, and the agreement of settlement was made an order of court.
5.41 In terms of Par 4 of the agreement of settlement, the respondents (the agency management) must ensure that fair labour practices are adopted and followed in the conduct of their businesses. The inclusion of this paragraph is significant in the light of the reluctance on the part of the presiding officer hearing the application, Desai J, to consider making an order including specific labour conditions. Desai J is reported as noting that since prostitution remains illegal, he could not be asked to regulate an illegal industry.[323] He therefore asked counsel appearing on behalf of the applicants to produce evidence on whether prostitution is allowed in terms of the Constitution. Due to the fact that the parties eventually settled the matter, such evidence was not led.
5.42 The fact that prostitution is currently illegal has not prevented efforts aimed at setting industry standards. In October 1999, a code of conduct was drafted for male escort agencies in Cape Town. This code set out standards agreed to by agency management, prostitutes and SWEAT, and included the following:
5.43 It has been suggested that violations of this code should ideally be dealt with by a regulatory body. However, the establishment of such a body is difficult while the industry remains illegal.[326]
5.44 Leggett’s recent study in Durban, Cape Town and inner city Johannesburg showed that almost half of the group typified as ‘fast living’ prostitutes[327] reported making more than R4 000 per month and 42% reported having more than 20 clients per week. Over 80% of the ‘subsistence’ prostitutes saw fewer than 10 clients and earned less than R200 per week.[328]
5.45 Significantly, race was an important variable in terms of the rates charged by participants in this study. Over 75% of white women reported charging over R90 for vaginal sex, while 83% of black women charged less than that.[329] (As a result, over half the white women surveyed reported making over R1 500 per week, while 80% of black women reported earning less than R500).[330]
5.46 Outdoor prostitution poses many risks, since prostitutes often work alone and usually late at night. Once prostitutes have reached an agreement with the client, they need to enter the client's space (his car and/or home) which puts them in a vulnerable position for abuse by clients.[331]
’If you have a room then you know you are safe, but if you have to park somewhere, okay that man is much stronger than you so it is easy for him to rob you or to take his money back, it has happened to me many times’.[332]
5.47 Various studies conducted in South Africa indicated how vulnerable prostitutes are to client abuse. Prostitutes in Pietermaritzburg have reported that clients beat them, raped them, abandoned them in isolated places, left them naked, and that they were thrown or forced to jump from moving vehicles.[333] They also reported being robbed and raped by passing men.[334] Researchers conducting a study among prostitutes at a truck stop in KwaZulu-Natal noted similar reports,[335] and Pauw and Brener’s Cape Town survey also confirm this trend.[336]
5.48 Focus group participants in the latter study agreed that violence from clients was one of their greatest occupational hazards. Significantly, eighteen (out of twenty five) participants stated that if they experienced problems with a client they would not take these up with the police. These participants felt that the police did not take their complaints seriously, nor did they attend adequately to the problems that prostitutes experience.[337]
‘They say “whore, you are just a whore, you can't be raped”.’[338]
5.49 Apart from the obvious violation of their rights to physical integrity, the vulnerability of prostitutes to constant violence or the threat of violence may also have broader implications, e.g. on the issue of whether or not they are able to practice safer sex. Prostitutes may also face violence and abuse if they try to insist on condom use.[339]
5.50 It should be noted that there does not appear to be a national policing strategy regarding prostitution. Instead, enforcement policies are determined on the level of individual police stations or by the prosecuting authorities in a particular area.
5.51 In addition to the provisions of the Sexual Offence Act prohibiting sexual acts for reward, brothel-keeping and facilitating prostitution, the indoor industry is as a rule subject to regulation by means of the municipal by-laws pertaining to, for example, the granting of business and liquor licenses.[340]
5.52 It appears that indoor businesses are currently able to operate without accredited business licenses, although they still remain liable for prosecution.[341] Where businesses do operate outside the boundaries of licensing requirements, the management will be liable for prosecution under the relevant by-laws, usually enforced by municipal law enforcement agents (rather than by police).[342] Significantly, these municipal by-laws are not enforceable against prostitution businesses only, but against any business not complying with licensing requirements.
5.53 There appears to be no single consistent national policing strategy regarding the indoor industry, with the general approach being a recognition that the enforcement of the Sexual Offences Act is a personnel-intensive endeavour, requiring methods such as continuous surveillance or entrapment. There also appears to be a recognition that police resources may be better spent elsewhere:
‘Prostitution is no longer regarded by police as a priority crime, says Alfred Hugget, commandant of special investigations. Although it’s still a crime, the community prefers police to concentrate their efforts on more serious misdemeanours. It’s almost impossible to prove a woman is a prostitute unless she’s caught in a trap. A policeman would have to masquerade as a client, she’d have to offer him her services and almost do the deed before an arrest could be made. It’s a time-consuming process that taxes their manpower and places the policemen in compromising situations’.[343]
5.54 In spite of this, the series of applications brought by the Asset Forfeiture Unit of the National Directorate of Public Prosecutions against the owner / management of The Ranch, an indoor establishment operating in Rivonia, Gauteng, indicates that police and prosecuting authorities do on occasion choose to enforce the Sexual Offences Act (as well as the Prevention of Organised Crime Act)[344] against indoor agencies.[345]
5.55 This also appears to be in line with the experience at service providing organisations such as SWEAT, where an increase in arrests of prostitutes (both indoor and outdoor) for contraventions of the provisions of the Sexual Offences Act and municipal by-laws (in the case of outdoor workers) has recently been noted.[346]
5.56 Enforcement of the provisions of the Sexual Offences Act against prostitutes working outdoors are subject to the same resource considerations noted above in relation to the indoor sector.[347] It is therefore hardly surprising that municipal by-laws, rather than the Sexual Offences Act, are primarily employed by police and municipal law enforcement officials against prostitutes.[348] These by-laws typically penalise, for example, ’loitering’ or ’creating a public nuisance’. [349]
5.57 Arrests often occur in response to complaints received from members of residential or business communities where prostitutes work. Experience has shown that evidence against individual prostitutes is frequently slim or non-existent,[350] and it is not unknown for groups of prostitutes to be ‘rounded up’ and arrested simply because they are standing on the street.
5.58 The offences referred to above are relatively minor, and the police would be entitled to either issue a so-called ‘spot fine’[351] without arresting the prostitute, or where arrest does take place, to release her on warning or a minimal amount of bail.[352] However, prostitutes are often arrested and detained in custody for allegedly contravening these municipal by-laws. Upon expiry of the 48-hour period within which an arrested person has to be brought before court,[353] the prostitutes are then released without being charged with any offence.
5.59 Apart from the obvious human rights violation inherent in this practice, concerns are also raised about the implications for children of prostitutes. Prostitutes have explained to researchers that when arrested, they were seldom allowed to make phone calls to arrange for childcare while they were kept in the cells.[354]
5.60 One tactic employed by police officials is to arrest prostitutes on a Friday evening, and release them on the following Sunday (i.e. two days later), thus depriving them of an opportunity to earn any income on the potentially most lucrative evenings of the week, viz Friday and Saturday evenings.[355]
5.61 Where prostitutes are brought before court, the charges are often withdrawn at the first court appearance. Upon their release, prostitutes either return to their previous workplaces or, less frequently, move on to new areas, where resident complaints may eventually lead to a fresh round of arrests. In this way, a cycle of complaint and arrest is created, leading to the violation of rights of prostitutes without addressing the concerns of residents on a long-term basis (see Diagram 1).
5.62 Researchers have found that certain law enforcement practices may undermine public health initiatives.[356] Pauw and Brener report that police confiscated condoms to use as evidence of prostitution.
‘”I keep it [condoms] in my pocket. Because the laws [police], when they get to you, they first look in their (sic) bag, they empty your bag. Without you giving it to them they take it and if they get a condom on you, then they pick you up.”’[357]
5.63 Outdoor prostitutes generally report high levels of harassment by police. A study of prostitutes at a truck stop in KwaZulu Natal found that participants were harassed by police and forced to provide free sexual favours.[358] Pauw and Brener found that violence by police officials towards prostitutes was common. Police abuse of power included rape, violence, unlawful arrest and unlawful detention.[359] The most common violations were that police demanded protection money from prostitutes and committed what prostitutes described as ‘dumping’. This refers to situations where police officials would force a prostitute into a police van and ‘dump’ her in an isolated place with no means of transportation.[360] Dumping usually occurs late at night and hence places prostitutes in dangerous situations where they might be raped or otherwise assaulted.
5.64 It is in this respect significant that during February 2000, ten prostitutes working in Claremont, Cape Town, obtained an interim interdict in the Cape High Court against three police officials to stop police harassment. The harassment complained of included physical assault and unlawful arrest and detention.[361]
5.65 This matter was subsequently investigated by the Independent Complaints Directorate [ICD], and in May 2000 the ICD recommended that the three officials concerned face internal disciplinary charges as well as criminal charges.[362]
5.66 The return date for the interdict was in June 2000. However, the matter was settled out of court prior to this date on the basis that the Minister of Safety and Security gave an undertaking that the three officials would be redeployed and not perform any duties relating to prostitutes until the findings of the internal disciplinary inquiries and the pending criminal charges had been finalised.[363]
5.67 Studies conducted among prostitutes in South Africa report a relatively high degree of condom use with clients. Pauw and Brener describe that twenty four of the twenty five participants in their study stated that they always used condoms with casual clients, while twenty three participants reported always using condoms with regular clients.[364] However, all participants noted that negotiation of condom use was often more difficult with regular clients.[365] The finding in several other studies that prostitutes do not usually use condoms with personal partners was also confirmed in this research study.[366]
5.68 Out of the 349 prostitutes included in Leggett’s research study, 28 women (about 8%) admitted to occasional condom free sex with clients, at least for oral sex.[367] Over 70% of the prostitutes with boyfriends said that they did not use condoms with them.[368]
5.69 It is extremely troubling to note that there is a great demand for condom-free sex in South Africa.[369] Respondents in research conducted at a KwaZulu-Natal truck stop reported that condom use was responsible for client loss and more frequent non-payment. They also stated that condom use led to physical abuse by clients, and clients insisted on paying less for sex when a condom was used.[370]
5.70 Research has shown that prostitutes do not always feel comfortable visiting state funded clinics providing primary health and STD care.[372] Reasons given for this included the negative attitudes of clinic staff and perceptions that other clinic attendees judged them negatively. Participants in the Cape Town study conducted by Pauw and Brener stated that clinic staff were rude to them, more impatient with them and that prostitutes were not afforded equal treatment. Participants also indicated that they were reluctant to tell staff that they were prostitutes, fearing discrimination and that clinic staff would not respect their confidentiality.[373] Other difficulties included that clinic staff members were reluctant to give prostitutes a sufficient supply of condoms, and that not all prostitutes were aware of the existence of clinics.[374]
5.71 Marcus et al further note that the main public health care services have little capacity to engage in a meaningful way in an intervention with prostitutes working in the context of the trucking industry.[375]
5.72 Leggett reports that South Africa’s unique history and distinctive cultures have resulted in a local drug ‘scene’ unlike any other in the world.[376] Isolation during the years of sanctions insulated the country, with the result that cocaine and heroin, although present in small amounts before the first democratic elections in 1994, only took off once South Africa fully engaged in international commerce again. In their place, substances such as Mandrax and Wellconal enjoyed a popularity seen nowhere else. One of the results is that drugs in South Africa are mainly smoked or snorted, with only a small percentage of intravenous injection.[377]
5.73 Crack cocaine became popular in South Africa only after the opening of the border in 1994. It has however since exploded into a major social problem, particularly among prostitutes.[378]
5.74 Recent research shows varying levels of drug use and substance dependence among South African prostitutes. Twenty four of the twenty five prostitutes participating in Pauw and Brener’s Cape Town study had used a substance in the past six months, and fourteen were regular substance users.[379] Only 2 participants reported using heroin, and this was a once off experience. The most common substances used alone and with other drugs were alcohol and ‘white pipes’ (a cannabis and methaqualone combination). The researchers also noted the growing frequency of crack cocaine.[380]
5.75 The two groups of street prostitutes distinguished by Leggett in his recent study conducted in Cape Town, Durban and inner city Johannesburg also showed marked differences in terms of drug use.[381] While almost 70% of the ‘fast living’ prostitutes who were prepared to discuss drugs indicated regular use of crack or Mandrax, none of the ‘subsistence’ workers did.[382] Again, race appeared to be a significant variable.[383]
5.76 One variable that has not been addressed sufficiently in South African studies is the question of causality: did drug use precede or follow the inception of prostitution? Qualitative comments from the women interviewed in Leggett’s study indicated that their reasons for entering prostitution rarely included the need to pay for drugs.[384]
5.77 Research indicates that drug dealers have systematically targeted the prostitute community to spread crack cocaine to the larger society.[385] Prostitutes have listed a number of reasons for getting into the drug, most of which had to do with dealing with the pressures of prostitution or the life that led them into prostitution.[386]
5.78 Many prostitutes who have been in the industry for some period of time complained that crack had increased the number of women on the street, and driven down the median age.[387] Increased competition has driven down the prices, forcing prostitutes to handle greater volumes of clients in order to maintain income levels. It has also led to an increased demand for unsafe sex (such as condom-free or anal sex), due to the willingness of addicts to do anything for drug money. Some women have also blamed crack for an increase in client violence, including rape.[388]
5.79 The South African adult prostitution industry is extremely diverse, and due to its criminalised status, reliable information about the industry is difficult to obtain. However, recent research projects have made it possible to identify certain general trends. For ease of analysis, prostitution can be divided into two categories, viz indoor and outdoor (street) prostitution. (There are also forms of prostitution, for example, informal prostitution around the mines and the trucking industry, that do not necessarily easily resort under either indoor or outdoor prostitution.)
5.80 Indoor prostitution businesses consist of brothels, escort agencies and massage parlours as well as clubs and bars. In addition, there are also private workers working from home or private premises. Indoor businesses as well as prostitutes working from private premises advertise their services freely, especially in the print media.
5.81 It is more difficult to establish an accurate profile of the outdoor sector than of the indoor sector. It may however be said that outdoor prostitutes are generally in a more vulnerable socio-economic position than those working indoors.
5.82 Researchers have distinguished two groups of outdoor prostitutes, viz ‘fast living’ and ‘subsistence’ prostitutes. The former group was characterised by high client volumes, higher than average rates for provision of sexual services, higher incomes and high levels of drug abuse. This group was generally located in the central business districts of Cape Town, Durban and inner city Johannesburg.
5.83 Subsistence prostitutes, who were more likely to be black, were found in more remote areas. Client volumes and incomes were low, and the use of drugs other than dagga and alcohol was rare.
5.84 The relationships between prostitutes and ‘pimps’ seem to vary. The majority of participants in one Cape Town study preferred to work independently, and where pimps did feature, the relationship was seldom reported to be abusive or exploitative.
5.85 Working conditions in the indoor sector are greatly influenced by the fact that prostitution is illegal and that protective labour measures therefore do not apply to the ‘employment’ relationship between management and prostitutes. This implies that basic conditions of employment are not adhered to, for example, in relation to payment for overtime, sick leave, paid holiday leave or duration of working hours. Efforts to improve working conditions in the indoor sector in the form of taking legal action against exploitative management or drawing up codes of conduct for indoor businesses have been hampered by the illegal nature of the industry.
5.86 The outdoor sector is characterised by significant variations in income and client volume. The working conditions in this sector present many risks, including violence by clients.
5.87 In addition to the provisions of the Sexual Offences Act, indoor prostitution establishments are also liable for prosecution under municipal by-laws relating to businesses. There appears to be no consistent national policing strategy regarding the indoor industry, although an increase in arrests and prosecutions under the Sexual Offences Act as well as the Prevention of Organised Crime has recently been noted.
5.88 Municipal by-laws, rather than the Sexual Offences Act, are employed against outdoor prostitutes. Arrests frequently occur because of complainants from residents or businesses, and often result in severe violations of the rights of prostitutes in the form of unlawful arrest and detention, bribery, and assault (including sexual assault). This practice of mass arrests is seldom successful in addressing the concerns of residents, and presents severe dangers and difficulties for prostitutes. Other law enforcement practices, such as the confiscation of condoms, undermine public health initiatives. Police harassment of prostitutes occurs frequently.
5.89 Studies conducted among South African prostitutes show a relatively high degree of condom use with clients. However, it was also found that prostitutes do not usually use condoms with personal partners. The Commission notes with concern the research finding that there is a great demand for prostitutes to provide sexual services without condoms.
5.90 Prostitutes do not always feel comfortable visiting state funded clinics, and have ascribed this inter alia to negative staff attitudes and fear of discrimination.
5.91 Research indicates varying levels of drug use and substance dependence. The most commonly used substances were alcohol, dagga and Mandrax, with an alarming increase in the use of crack cocaine. Crack appears to have had an adverse impact on the prostitution industry, especially in the outdoor sector. Race appeared to be a significant variable in terms of drug use. It is not sufficiently clear in the South African context whether drug use precedes or follows the entry into prostitution.
[261] Act 65 of 1996.
[262] See sections 25-29 of this Act.
[263] See Chapter 6 below.
[264] Leggett ODCCP at Par 2.5.
[265] Leggett ODCCP at Par 3.2.
[266] Pauw and Brener MRC Study at 33. See also Leggett ODCCP at Par 3.2. This is not unique to the South African scenario.
[267] This is not an exhaustive list.
[268] W Schurink, I Liebenberg and E Schurink Memorandum to the Department of National Health and Population Development on ‘Commercial Sex Work: A study of knowledge, attitudes and general behavioural patterns / practices among prostitutes and other persons with regard to sexuality and AIDS-related matters’ (1993).
[269] Posel (1993); T Leggett ‘Poverty and sex work in Durban, South Africa’ Society in Transition (1999) at 157-167.
[270] See T Marcus et al ‘Aids and the highways: sex workers and truck drivers in KwaZulu-Natal’ Indicator SA Vol 13 No 1 (1995) at 80-84; QA Karrim et al ‘Reducing the risk of HIV infection among South African sex workers: socio-economic and gender barriers’ American Journal of Public Health Vol 85, No 11 (1995) 1521-1525; G Kraak ‘The road less travelled: government and civil society join against HIV/AIDS in the trucking industry’ Development Update (date) 125-138; G Ramjee et al ‘Sexually transmitted infections among sex workers in KwaZulu-Natal, South Africa’ Sexually Transmitted Diseases Vol 25 No 7 (1998) 346-349.
[271] See Varga study.
[272] See Pauw and Brener MRC Study; I Pauw and L Brener ‘Naming the dangers of working on the street’ Agenda No 36 (1997) 80-84.
[273] Sinead Delany’s study.
[274] Leggett ODCCP. See also T Leggett ‘The Sleazy Hotel Syndrome: housing vice in Durban and Johannesburg’ Crime and Conflict No 18 (1999) 14-20.
[275] See Discussion Paper 85 at Par 9.7.3 – 9.7.10.
[276] See in this regard generally R Barnes-September et al Child Victims of Prostitution in the Western Cape (2000) 71 et seq; Molo Songololo The Trafficking of Children for Purposes of Sexual Exploitation – South Africa (2000) 29-43.
[277] Leggett recently found that in a sample of 349 prostitutes from Cape Town, Durban and Johannesburg, half the population was under 24, and over 10% were underage (younger than 18 years). T Legget ODCCP Study on the Relationship between Drug Use and HIV in South Africa (2000) at Par 3.2.
[278] Discussion Paper 85 at Par 3.7.3.1. See also Discussion Paper 103 at Par. 13.7.5.3.
[279] S Zetler ‘Needs assessment of the indoor sex working industry in the Cape Town area’ (SWEAT, February 1999) at p 2.
[280] Posel (op cit) at 12. Leggett’s more recent study confirms these categories – ODCCP at Par 2.5.
[281] Street prostitution is discussed below.
[282] The terminology here is that used by Leggett rather than Posel.
[283] The term ‘call girls; may have become misleading, since male prostitutes also advertise and provide their services in this way.
[284] See Posel (op cit) at 12-16 for a brief description of each category.
[285] See Leggett ODCCP at Par 2.5.
[286] See in this regard generally Abdool Karrim et al (op cit) at 1521-1522; Kraak (op cit) at 127-129; Ramjee et al (op cit) at 348-349.
[287] See in this regard generally Zetler (op cit) at 5.
[288] See Leggett Crime & Conflict No 13 (1998) at 23.
[289] Zetler loc cit.
[290] The same argument is employed in response to attempts to discuss basic conditions of employment with owners / managers, as well as issues related to the Receiver of Revenue.
[291] See Leggett ODCCP at Par 3.2.
[292] See Pauw & Brener MRC Study at 6.
[293] Mrs Joan van Niekerk of Childline, KZN, however, points out that some child prostitutes are kept enslaved indoors in conditions of extreme vulnerability. She cites examples of child prostitutes literally being locked up in flats and kept in bondage there where they then have to see so many clients in order to pay board and lodging or face physical violence.
[294] Pauw and Brener MRC Study at 4.
[295] Ibid.
[296] Schurink and Levinthal (op cit) at 159.
[297] Leggett ‘Sex workers in South Africa: worlds apart’ ISS Crime Index No 6 (2000) at 26-27.
[298] Idem at 26.
[299] Leggett ODCCP at Par 4.2.
[300] Leggett describes these hotels as ‘squalid in the extreme’ (Society in Transition at 161). ‘Most of the hotels have shared bathroom facilities and minimal space. They are decrepit, noisy, smelly buildings, infested with vermin’.
[301] Ibid.
[302] Idem at 27.
[303] See Sloan (op cit).
[304] Ibid.
[305] Pauw and Brener MRC Study at 6.
[306] Pauw and Brener MRC Study at 31.
[307] T Leggett ‘Poverty and sex work in Durban, South Africa’ Society in Transition (1999) at 164.
[308] Act 75 of 1997.
[309] Act 85 of 1993.
[310] The ‘employment’ contract between the operator and the prostitute relates to illegal activities, and therefore does not fall within the ambit of ‘lawful’ employment. An analogy would be, for example, a person working as a ‘runner’ for a drug dealer. Due to the fact that drug dealing is a criminal activity, the runner would not be in a position to claim recourse in terms of labour legislation if the drug dealer forced him to work for inordinately long hours.
[311] Leggett Crime and Conflict No 13 (1998) at 23.
[312] Ibid.
[313] In some cases, tips are paid via management, thus giving management access to information on the value of tips that prostitutes are earning. Other prostitutes do not disclose their tips to management – Zetler (op cit) at 3.
[314] Prostitutes report that this power is at times abused. It appears that management often develops closer relationships with certain workers, who are then in turn more successfully promoted to clients – Zetler loc cit.
[315] Idem at 4.
[316] Ibid.
[317] See Leggett Crime & Conflict No 13 (1998) at 23.
[318] Although the agency is referred to throughout as an ‘escort agency’, it appears to be common cause that sexual acts were performed for reward on the premises, which implies that the business complied with the definition of a ‘brothel’ rather than an escort agency.
[319] See SWEAT Press Release dated 29 November 2000.
[320] See I Fredericks ‘Madam from Hell in a sweat over “sex slaves”’ Sunday Times, 5 November 2000.
[321] SWEAT Press Release dated 29 November 2000.
[322] Ibid.
[323] H Geldenhuys ‘Judge refuses order against escort agency’ Cape Times, 8 November 2000.
[324] According to the current provisions of section 14(1)(b) of the Sexual Offences Act, the age limit for consensual sexual acts between two men is currently 19 years.
[325] J Soal ’Setting sex work standards’ Cape Times, 12 October 1999.
[326] Ibid.
[327] See Par 5.21 above.
[328] Leggett ISS Crime Index at 27.
[329] Leggett ODCCP at Par 4.3.
[330] Ibid.
[331] Pauw and Brener MRC Study at 16.
[332] Ibid.
[333] T Marcus ‘Aids and the highways: sex workers and truck driver in KwaZulu-Natal’ Indicator SA (1995) at 82.
[334] Ibid.
[335] Q Abdool Karrim et al ‘Reducing the risk of HIV infection among South African sex workers: socio-economic and gender barriers’ American Journal of Public Health (1995) at 1523.
[336] Pauw and Brener MRC Study at 16-17.
[337] Idem at 18.
[338] Pauw and Brener MRC Study. This is echoed by Rachel Khatlane, who makes the following statement: ‘There is a lot of rape but the way the police treat you doesn’t make you want to report. They say you are a sex worker, may be you wanted to go with the guy. They say prostitutes can’t get raped, they are used to being f....’ in G le Roux Agenda. See also in this regard S Delaney (op cit).
[339] Pauw and Brener MRC Study at 16.
[340] See Par 6.131 below.
[341] Zetler attributes the status quo to ‘the uncertain legislative climate’, as well as the lack of personnel capacity to enforce licensing – op cit at p 4.
[342] See, for example, R Morris ‘Bid to shut “brothel” refused’ Cape Times 21 December 2000.
[343] I Kuhne ‘Luxury life of the high-class hookers’ YOU Magazine, 2 March 2000. The concern about the potentially compromising effect of law enforcement is borne out by the facts of the Jordan case: the third appellant in casu admitted that she had performed an indecent act, viz a ‘pelvic massage’, on a person who later proved to be a police agent. (S v Jordan and Others 2002 (1) SACR 17 (T).)
[344] 121 of 1998.
[345] See e.g Phillips and others v National Director of Public Prosecutions 2001 (2) SACR 542 (W).
[346] See H Geldenhuys ‘Call in court to decriminalise prostitution’ Cape Times, 26 October 2000.
[347] During the early 1990’s, members of the South African Narcotics Bureau, traditionally tasked with enforcement of various provisions of the Sexual offences Act, development an entrapment method entailing that a witness to the transaction would hide in the boot of the motor vehicle being used by the alleged ‘client’, who would also be either a police official or agent. Prostitutes soon started to demand the opening of the car boots of prospective clients before commencing with any negotiations.
[348] See e.g. Gauteng Task Team Final Report at 8.
[349] See Chapter 6 below for a more detailed discussion of the offences created under these municipal by-laws.
[350] Arrests have occurred for non-existent offences. See also Palmer v Minister of Safety and Security (WLD Case No 00/13008).
[351] This refers to a written notice issued in terms of sections 56 and 57(1)(b) of the Criminal Procedure Act 51 of 1977.
[352] In terms of section 59 of the Criminal Procedure Act 51 of 1977.
[353] See section 35(1)(d)(i) of the Constitution, as well as section 50 of the Criminal Procedure Act.
[354] This is in violation of section 35(2)(f)(ii),of the Constitution, which states that every detained person has the right to communicate with ‘next of kin’. Section 35(2)(e) of the Constitution states that detained persons have the right to conditions of detention that are consistent with human dignity.
[355] Information conveyed to consultant researcher by prostitutes working in Woodstock, Cape Town in 1995.
[356] Pauw and Brener MRC Study 19.
[357] Ibid (citing Participant 15).
[358] Abdool Karrim et al (op cit) at 1523.
[359] Pauw and Brener MRC Study at 19. See also Leggett Society in Transition at 165.
[360] Pauw & Brener Agenda 82.
[361] See J Bezuidenhout ‘Hands off the hookers’ Sunday Times, 27 February 2000; M Merten ‘”Finally, peace” for sex workers’ Mail and Guardian, 3-9 March 2000.
[362] The ICD recommended that two of the officials face charges of assault, that one official face an additional charge of crimen iniuria, and the other a charge of corruption. In addition the ICD recommended that one of the officials be prosecuted for rape. See Women’s Legal Centre News [WLCN] January – June 2000 at p 3.
[363] WLCN at p 3.
[364] Pauw and Brener MCR Study at 11-12.
[365] Pauw and Brener MRC Study at 12 note that these findings should be viewed with some caution, since the boundaries between regular clients and personal partners sometimes appeared blurred.
[366] Idem at 13. The use of a condom connotes a distinction between professional sex and sex for pleasure – see Leggett Crime and Conflict No 13 (1998) at 24.
[367] Leggett ODCCP at Par 4.3. Eighty two percent of this group were black women, and 78% of this group were HIV positive.
[368] Ibid.
[369] Leggett ODCCP at Par 2.5, citing Varga study.
[370] Abdool Karrim et al (op cit) at 1523.
[371] While the question of HIV/AIDS and prostitution arises under health concerns, this topic is dealt with in detail in Chapter 8 below.
[372] Pauw and Brener MRC Study at 26.
[373] Idem at 26-27. Marcus et al also note that the relationship of prostitutes to the health system is problematic, ‘since it is often tied to their contact with the legal system’ ( (loc cit at 82).
[374] Idem at 27.
[375] At 84.
[376] ODCCP at Par 2.4.
[377] The incidence of intravenous drug use is significant in the sense that this is one of the factors that may make prostitutes more vulnerable to HIV infection – see Chapter 8 below.
[378] The connection between crack use and high levels of sexual activity, including the exchange of sex for money or drugs, is so great that crack has been as closely linked with HIV as intravenous drugs – Leggett ODCCP at Par 2.2.
[379] Pauw and Brener MRC Study 21.
[380] Ibid.
[381] See Leggett ISS Crime Index at 27.
[382] Ibid.
[383] Leggett ODCCP at Par 4.4.
[384] Ibid.
[385] Leggett ODCCP at Par 2.5. Leggett found that the use of crack cocaine in the South African context started among prostitutes in Hillbrow. Anecdotal evidence indicates that dealers then sent addicted prostitutes from Hillbrow to Durban in 1996 to spread the drug (Crime and Conflict No 18 (1999) at 17).
[386] Leggett ODCCP at Par 2.5.
[387] Ibid.
[388] Ibid.
SAFLII:
|
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/other/zalc/ip/19/19-CHAPTER-5.html