At On the City Wall, a short story by Rudyard Kipling, originally published in 1909, the type of work described as “the oldest profession in the world”. Before Kipling wrote this famous description, the existence of sex work was already in Sumerian writing – one of the earliest records.
Sex work seems to be as old as civilization but it is illegal in South Africa. The Cabinet, however, seeks to change that, because it recently approved the publishing for comments of the bill that seeks to decriminalize it. One of the main reasons countries are trying to decriminalize sex work is because the laws that regulate it are inherently ineffective.
Democratic South Africa
The banning of political parties, the release of political prisoners and the establishment of the Constitution in the 1990s changed the landscape of South Africa. The constitution creates an open society based on human rights, the right to privacy and ubuntu, and it is partly because of the Constitution that calls for the decriminalization of this type of work increased.
The South African Law Reform Commission has previously sent a proposal to the public seeking input on the legal status of prostitution. In 2002, the discussion paper called for a revision of the Sexual Offenses Act and included the possible decriminalization or legalization of sex work. In 2017, the commission recommended that sex work should be decriminalized but that third-party involvement should remain illegal.
In 2017, the ruling ANC, at 54Th national elective conference, resolved to decriminalize this type of work.
The Sexual Offenses Act and the Sexual Offenses Amendment Act criminalize sex work and related activities, such as maintaining brothels, procuring people as prostitutes, soliciting prostitutes and living off the proceeds of prostitution.
Colonial and apartheid laws were ineffective in dealing with sex work. South Africa’s democratic courts should also adjudicate issues related to sex work. In the watershed S vs. Jordan case (2002), the constitutional court declared that the criminalization of brothels and sex work is in line with the Constitution. At Kylie vs CCMA (2010), the labor appellate court held that the Labor Relations Act applies to sex workers.
Dutch East India Company
In April 1652, under the colonial government of Jan van Riebeeck, the Dutch East India Company took control of Cape Colony, ideally located on the shipping route. The first mention of a brothel was in 1681. During this period, the authorities allowed sex work to continue without hindrance.
British occupation
In 1795, the British took control of the Cape Colony. The Contagious Diseases Acts were a series of three laws passed in England in 1864, 1866 and 1869. The purpose of these laws was to stop the spread of venereal diseases among the British armed forces by screening sex workers or suspected sex workers. sex. Sex workers are considered a source of disease.
Between 1883 and 1886 syphilis was reported in almost half the districts of the Cape. The Contagious Diseases Act was promulgated in the Cape Colony in 1885, calling for the registration and regulation of sex workers. In 1886, the Colonial Medical Committee argued that there were “not less than 400 public prostitutes in the Cape”, who had no medical supervision.
In 1898, there were more restrictions on sex work – the municipality of Cape Town introduced regulations punishing property owners who used them as brothels. The Police Offenses Amendment Act, which increased the penalties for soliciting and punishing pimping, was also enacted.
Christmas Colony
Natal Colony administrators attempted to implement the Contagious Diseases Act in 1886. The Act sought to regulate and control sex workers, as they were blamed for spreading syphilis and gonorrhea. The introduction of this action failed; it was first thrown out in the legislative council, and later, after another attempt to pass, the secretary of the colony refused to give Royal Assent.
In 1882, the Police Offenses Act punished any “prostitute who swims or is in a public place for the purpose of solicitation or prostitution to disturb the public”. The punishment is a fine or imprisonment.
In 1890, the police estimated there were almost 200 sex workers in Natal, the majority of whom were in Pietermaritzburg. The authorities there hardly ever cut down on brothels but their counterparts in Durban did.
Transvaal Colony
The commercialization of gold in the Transvaal in 1886 led to an increase in enterprise and population. During the first 10 years of large-scale gold mining, there was very little regulation of this type of work in the Witwatersrand. It is estimated that in the late 1800s about 10% of women in Johannesburg were sex workers.
In 1902, the Transvaal passed a law stating: “Every man who knowingly lives wholly or partly by prostitution … shall be guilty of a crime.” The law also punishes the activities of male prostitutes.
Union of South Africa
In 1910, the colony was incorporated into the Union of South Africa. A year after the formation of the trade union, Law No. 41 of 1911 was enacted, which states: “Any person who, as a keeper or has the management of a place of public accommodation, willfully allows a pimp or a prostitute to enter that place. … shall be liable to punishment. The action focused on brothel owners.
Interracial sexual relations are considered immoral. Because of this, Crime Law No. 5 of 1927 was passed, which prohibited interracial sex. The law also outlawed “providing” women for interracial relationships and African women could be jailed for up to six years for provoking white men to have sex with them.
In the courts of this time, the courts often treat sex workers as unreliable characters. At Rex vs Christo In the case, the court held that before the court accepted the testimony of prostitution, it must be amply corroborated.
Apartheid
Apartheid was officially established in South Africa in 1948 when the National Party took over. The apartheid regime passed Crimes Act No. 23 of 1957, which changed its name in 1927. The 1957 law prohibits the operation of brothels and the earning and living of prostitutes.
Despite these laws, sex work continues. For example, anthropologist Sheila Patterson notes that “visiting ship crews are said to frequent nightclubs and dives in Cape Town”.
The court at that time downplayed the seriousness of the rape of sex workers. In the obiter dictum of R vs Sibande, the court stated that: “The rape of a prostitute, for example, although it is a crime of rape, does not usually call for the same severity of punishment imposed for the rape of a woman of good character and good character.”
In the late 1970s there were calls to decriminalize prostitution. In 1977, Cape Town medical officer of health Reg Coogan insisted that proper policing was involved in legalization and parliament held a debate on the decriminalization of sex work in 1988.
In 1988, the apartheid regime gave up hope of decriminalization when it passed the Immorality Amendment Act No. 2 of 1988. This makes it a criminal offense to engage in sexual activity for reward.
Morals have changed
The history of sex work in South Africa clearly shows how various governments struggle to monitor it. The colonial period saw sex work as a source of disease; the apartheid system saw it as an enabler of race relations. Democratic governments seem to have at least created an environment where calls for the decriminalization of sex work are no longer seen as taboo.
Twenty-nine years after the interim constitution, the morals of the country have changed, constitutionalism has been entrenched, and the legislature has become stronger; This gives the country the opportunity to decriminalize the oldest profession in the world.
Why sex work should be legal
According to Human Rights Watch, the decriminalization of sex work increases the legal protection of sex workers and their ability to access basic rights, such as justice and health. Legal recognition of sex workers and their occupation maximizes protection, dignity and equality. The organization has consistently found in research in various countries that criminalization “makes sex workers more vulnerable to violence, including rape, assault and murder, by attackers who see sex workers as easy targets due to stigmatization and will not accept help from the police”.
Criminalizing 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 in South Africa, considering our Constitution – should tell consenting adults who can have sex and what the conditions are.
Thifhelimbilu Meshack Nembudani holds a BA and LLB cum laude. He is currently working as an aspiring lawyer.