Court bid to decriminalise sex work

Sex workers and activists protesting outside Parliament in May 2024, calling for the decriminalisation of sex work to be fast-tracked. Photo: Liezl Human

• A Cape Town sex worker, with the support of the Sex Worker Education and Advocacy Taskforce (SWEAT), has launched a constitutional challenge to laws criminalising sex work.
• In papers filed with the Western Cape High Court, they argue that the laws merely stigmatise what they do and make them more vulnerable.
• The respondents, the Minister and Director-General of Justice and Constitutional Development, have filed notices to oppose.

Sex workers, with the support of the Sex Worker Education and Advocacy Taskforce (SWEAT), have launched a constitutional challenge to laws which criminalise consenting adults soliciting and engaging in sexual acts for reward.

Such laws merely stigmatise what they do, make them more vulnerable and violate their rights, including their rights to dignity, they say.

They want to be able to trade lawfully and with the respect and protections that legality brings.

The challenge, set down in the Western Cape High Court, has been spearheaded by SH, a mother of three, and SWEAT with supporting affidavits by ten other sex workers and experts on the issue.

They are seeking wide-ranging relief. They want certain sections of the Sexual Offences Act and the Criminal Law Amendment Act (Sexual Offences and Related Matters) to be scrapped.

They further seek an order against the National Director of Public Prosecutions (NDPP) to withdraw all charges and criminal proceedings brought in terms of these impugned provisions, release anyone serving sentences and expunge criminal records.

The respondents, the Minister and Director-General of Constitutional Development, the NDPP, and the City of Cape Town have all filed notices of opposition but have yet to file papers.

SWEAT stated: “The case is of significant public interest as it addresses the urgent need to reform laws that not only violate the constitutional rights of sex workers but also perpetuate social injustice, discrimination and public health risks.

“By challenging the criminalisation of sex work, SWEAT aims to ensure a safer, more equitable society for all, while advancing human rights protections for one of South Africa’s most marginalised communities.

“The outcome of this case could set a transformative precedent on the international stage for the decriminalisation of sex work which will impact both legal frameworks and societal attitudes.”

In 2002, the Constitutional Court ruled by a majority against the decriminalisation of sex work in a case referred to as the Jordan case. But SWEAT, which was an amicus curiae (friend of the court) in that matter, says this is a different case being brought on different grounds. And it’s being brought in different times with material societal changes.

Proud of their work

In her affidavit, SWEAT director Emily Craven, said the identities of the sex workers involved in the case were being withheld.

“The details they give are sensitive and personal. Many involve descriptions of sexual assault and harassment and feelings of shame or being shamed as a result of their occupation. They wish to protect themselves and their families from these details being made public and from the considerable stigma that attaches to sex work generally.

“They have also put themselves at risk of prosecution.

“Many have been the subject of repeated harassment by police; they fear further harassment.”

Craven said SH (and those supporting her) wish to bring an end to the discrimination, harassment and lack of protection due to the criminalisation of their trade.

She said it was estimated in 2015 (the latest available research) that there were between 131,000 and 182,000 adult female sex workers in South Africa. This number did not account for adult male or transgender or non-binary sex workers.

“Sex work forms part of the informal sector, it is an economic necessity for some. It is not the norm for them to have a pimp, or to work in a brothel. The majority support between three and nine people. When comparing full-time sex workers income with data from Statistics South Africa on monthly earnings, sex workers are earning more than clerks, sales and services, crafts and related trades and up to six times more than domestic workers.”

Craven said most said that sex work was their sole income and they were unable to find other work.

One, JM, said she became a sex worker to pay for transport to get to college. After she graduated she could not find work so she continued.

“Her repeated arrests appear to have prevented her from obtaining the police clearance certificate she would need to get a job,” Craven said.

Another, NV, said she became a sex worker because she could make more money than waitressing.

Many said they were proud to be able to support themselves and their families. Others said they were conflicted “but all were emphatic that they wish to be able to engage in sex work lawfully without the threat of criminal sanction”.

Rational and constitutional

Craven said to be rational and constitutional, laws must be underpinned by a rational government purpose “otherwise they are arbitrary and violate the rule of law and the protection against arbitrary arrest and detention”.

It was submitted in the application that there was presently no legitimate purpose underpinning the laws because they were not used to prosecute sex workers to finality.

“The supporting affidavits show that in almost all instances, sex workers are arrested and or detained but not formally charged. In some instances they are required to pay an amount in order to be released, often in the nature of a bribe or gratification to arresting officers. They say they are also forced to perform sexual acts with SAPS officials in order to be released.”

Attempts by SWEAT lawyers Bowman Gilfillan to obtain statistics regarding the number of people arrested or detained under the provisions had been unsuccessful. SAPS and the NPA had not been able to provide any.

“It seems they are not genuinely used or relied upon to charge and prosecute sex workers to finality. This shows there is no continuing legitimate purpose served by keeping those offences on the books,” Craven said.

“Moreover [the laws] have not deterred or stopped the selling or buying of sex or sexual service and are not rationally capable of doing so. They merely create greater stigma and vulnerability among sex workers and violate their rights.”

In 2022, a Bill to repeal the criminalisation, had been published for comment. But it was later withdrawn and its fate was unclear.

Outdated views

Craven said policy reasons for the criminalisation of sex work were outdated and based on research and reasoning no longer applicable.

Previous concerns related to public health, that it would contribute to the spread of HIV/AIDS and STDs, that it encouraged trafficking of women and children, that it led to further crimes and it created a public nuisance.

Craven said public health was better served by decriminalisation. While transnational crime was a real threat, the majority of sex workers do not operate from brothels or have “pimps” but are self-employed.

She said public nuisance can be dealt with through the regulation of sex work. It did not justify a complete ban.

“Upholding our constitutional challenge will not result in sex work being immediately available on any basis. For example, we do not in these proceedings challenge the provisions that criminalise the keeping or operation of a brothel.”

Craven said the provisions were not only ineffective and irrational, they were “actively harmful”.

“The lived experience of sex workers convincingly demonstrates that they perpetuate the stigmatisation, increase the risk of violence, expose them to bullying, harassment and predation by their clients, their communities and the police.

“Adult sex workers should be free to choose to engage in their practice for as long as they do so voluntarily and without exploitation and abuse.”

SH, in her affidavit, said the life of a sex worker was not an easy one but it was made infinitely more difficult by the criminalisation of sex work.

“Law enforcement officers take advantage of me and refuse to protect me or to give me the tools I need to protect myself in an already dangerous profession,” she said.

Craven said if the impugned provisions were found to be unconstitutional, they must be declared invalid. They should also be set aside with retrospective effect to the date of their enactment, 16 December 2007.

SH and SWEAT initially cited the City of Cape Town as one of the parties in respect of bylaws but, following representations from City officials, that matter has been separated and will only proceed, if necessary, after the national legislation challenge.

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