Johannesburg - The Sunday Independent team has packed a feature looking into sex work in South Africa and the legal tussle prostitution has had with the country in terms of its legislation and, most importantly, the women who bear the brunt.
Prostitution, the world’s oldest profession, seems to be as old as civilisation, but it is illegal in South Africa. The Cabinet, however, seeks to change that as it recently approved the publishing for comment of a bill that seeks to decriminalise it.
One of the key reasons the country seeks to decriminalise sex work is because the laws that govern it have always been ineffective.
Dudu Dlamini, who is the Manager of SWEAT, said sex workers’ rights should be treated as labour rights.
“It is 2023, and sex work is still criminalised under the Sexual Offences Act that was drafted during the apartheid era. Sex workers autonomously choose to do this work; they are providers – mothers, fathers, caregivers, taxpayers, and should be treated as such. Sex work must be recognised as work. Sex workers’ rights should be part of labour rights. The extent of structural, sexual and physical violence sex workers face links to sex workers’ rights not recognised as part of labour rights,” she said.
Constance Mathe has been a sex worker for more than 17 years. She is the National Coordinator of the Asijiki Coalition, an organisation advocating for the decriminalisation of sex work in South Africa. In South Africa, sex work is illegal for both the client and the worker.
“Sex workers are not safe in the streets. Street-based sex workers are facing many challenges, such as robbery and rape, because of the criminal laws that affect sex workers in this country. They are not able to report these matters to the police because they are identified as criminals. They (the police) are the very people who should protect us, but in many instances, police themselves violate sex workers,” she said.
Speaking extensively about her experience in the work that she does, the 37-year-old mother of two said she had been violated several times as a sex worker and has been taken advantage of as her work leaves her vulnerable.
“We are mothers. I do this job and leave my children at home. I do it to provide for them. We are not safe at all. I’ve been raped, I've been abused, but I’ve been afraid to report because I don’t want to put my life at risk,” she said.
What sex workers want to see in terms of the decriminalisation of sex work is a change in the laws of South Africa to accommodate sex workers.
“We want the business to be recognised. We want the laws in South Africa to recognise and accommodate us as sex workers. Once we have regulated laws in place, it’ll be easy for those who work indoors, i.e. brothels, etc., for sex workers not to be abused by the owners. We also want to be recognised as taxpayers so we can claim from tax,” she said.
Nontombi Khoza (38) has been a sex worker for six years. She believes they are a vulnerable group in society and has always wanted to do her work freely without being criminalised or stigmatised.
“I used to be street-based and in working on the streets. I experienced rape and robbery. I was raped twice. When you report it to the police, the condom is used as evidence, and you have no case because you are doing something illegal. All we want is for sex work to be decriminalised. We have clients who buy into this business. We are killing no one. All we are trying to do is make a living and survive,” said Khoza.
Mother of two, Lindiwe, 40, said in her six years of working from Troye Street, business has never been so slow.
Standing near a block of flats that also houses a brothel, Lindiwe said she could not provide for her young daughters – aged between 14 and 10 years – as a consequence of the lockdown.
“It’s been a difficult time for me. The cops chase us when we approach a client who stops for one of us. When they arrest us, we get released the following day on a warning,” she said.
Nonhlanhla, 22, who works from Polly Street in downtown Joburg, said she arrived in Gauteng in February from Hammarsdale, in KwaZulu-Natal. She said while the majority of clients paid her the R50 going rate, there were some who sympathised with the sex workers and would generously pay her up to R300 for her services.
Researcher and advocate for sex workers Katlego Seame said justice is needed for sex workers and their children. Her current work centres on advocating for the decriminalisation of sex work in South Africa. Seame also called on South Africans to assist sex workers where they can.
“Most, if not all of them, have no source of income. So we need to help wherever we can,” said Seame. “Access to health and education is a big thing for most sex workers. Some are mothers, and this affects their children, who also don't have access to education and healthcare. Due to the stigma that surrounds sex work, most of their children drop out of school because of the bullying they are subjected to.”
Sex workers who need financial relief assistance can contact SWEAT/Sisonke on their 24-hour Helpline: 0800 606060 or send a ‘Please call me’ to 071 357 7632.
SWEAT spokesperson Megan Lessing added that the economic fallout for sex workers and their children/dependents has been tremendous – many are struggling to meet their most basic needs, such as paying rent and buying adequate groceries.
“Many make a living from sex work. We advocate for sex work to be regulated and recognised. Sex workers are people just like us, who can contribute to the economy just like everyone,” she said.
Long-standing legal tussle with sex work:
Union of South Africa
In 1910, the colonies were unified to form the Union of South Africa. A year after the formation of the union, Act No 41 of 1911 was passed, which stated that: “Any person who, being the keeper or having the management of any place of public resort, shall knowingly permit pimps or prostitutes to frequent such places … shall be liable for conviction.” The act’s focus was on brothel owners.
Interracial sexual relations were deemed to be immoral. It was to this effect that the Immorality Act No 5 of 1927 was passed, which prohibited interracial sex. The act also prohibited “procuring” women for interracial intercourse, and an African woman could be imprisoned for up to six years for provoking a white male to have intercourse with her.
In judgments of this time, the courts often viewed sex workers as unreliable characters. In the Rex vs Christo case, the court held that before a court accepts testimony from a prostitute, it must be amply corroborated.
Apartheid
Apartheid was formally established in South Africa in 1948 when the National Party took over. The apartheid regime passed the Immorality Act No 23 of 1957, which replaced its 1927 namesake. The 1957 Act prohibited the running of a brothel and procuring and living off the proceeds of prostitutes.
Despite these laws, sex work continued. For example, anthropologist Sheila Patterson noted that “visiting ships’ crews were said to frequent night clubs and dives in Cape Town”.
The courts of the time lessened the seriousness of the rape of a sex worker. In the obiter dictum of R vs Sibande, the court stated that: “Rape upon a prostitute, for example, though it is a crime of rape, would not ordinarily call for a penalty of equal severity to that imposed for rape upon a woman of refinement and good character.”
Towards the end of the 1970s, there were calls for the decriminalisation of prostitution. In 1977, the Cape Town medical officer of health, Reg Coogan, asserted that its proper policing lay in its legalisation, and Parliament held a debate about sex work decriminalisation in 1988.
In 1988, the apartheid regime put any hope of decriminalisation to bed when it passed the Immorality Amendment Act No 2 of 1988. This made it a criminal offence to engage in sexual activities for reward.
The history of sex work in South Africa clearly shows how various governments have struggled to police it. The colonial period saw sex work as a source of illness; the apartheid system saw it as an enabler of interracial relations. The democratic government seems to have at least created an environment where calls for decriminalisation of sex work are no longer seen as a taboo.
Twenty-nine years after the interim constitution, the country’s morals have changed, constitutionalism has been entrenched, and the legislature has become more robust; this gives the country an opportunity to decriminalise the world’s oldest profession.
Why sex work should be legal
According to Human Rights Watch, decriminalising sex work enhances sex workers’ legal protection and their ability to access key rights, such as justice and healthcare. Legal recognition of sex workers and their occupation maximises their protection, dignity and equality. The organisation has consistently found in research across various countries that criminalisation “makes sex workers more vulnerable to violence, including rape, assault and murder, by attackers who see sex workers as easy targets because they are stigmatised and unlikely to receive help from the police”.
Criminalising adult consensual sex, including the commercial exchange of sexual services, is also incompatible with the human right to personal autonomy and privacy. No government — especially South Africa’s, considering our Constitution — should be telling consenting adults who they can have sexual relations with and on what terms.