In on the city wall, a short story by Rudyard Kipling, originally published in 1909, sex work is described as “the oldest profession in the world.” Long before Kipling penned this famous description, the existence of sex work was already written about in Sumerian writings, one of the earliest known records.
Sex work seems to be as old as civilization, but it is illegal in South Africa. The cabinet, however, is looking to change that, having recently approved a bill seeking to decriminalize it for comment. One of the main reasons the country is seeking to decriminalize sex work is that the laws governing it have always been ineffective.
democratic south africa
The lifting of the ban on political parties, the release of political prisoners and the promulgation of the Constitution in the 1990s changed the South African landscape. The Constitution created an open society based on human rights, the right to privacy and ubuntu, and it was partly because the Constitution increased calls for the decriminalization of sex work.
The South African Law Reform Commission has previously submitted proposals to the public seeking their opinion on the legal status of prostitution. In 2002, their discussion paper called for revisions to the Sex Offenses Act and included the possibility of decriminalizing or legalizing sex work. In 2017, the commission suggested that sex work should be decriminalized but third-party involvement should remain illegal.
In 2017, the pro-government ANC, in its 54the elective national conference, resolved to decriminalize sex work.
The Sex Offenses Act and the Sex Offenses Amendment Act criminalize sex work and its related activities, such as keeping brothels, hiring people as prostitutes, prostitution, and living off the proceeds of prostitution.
Colonial and apartheid laws were ineffective in dealing with sex work. Democratic courts in South Africa have also had to rule on issues related to sex work. in the basin S against Jordan case (2002), the constitutional court held that criminalizing brothels and sex work was in line with the Constitution. In Kylie vs CCMA (2010), the labor appeals court held that the Labor Relations Act applied to sex workers.
Dutch East India Company
In April 1652, under the colonial administration of Jan van Riebeeck, the Dutch East India Company occupied the Cape Colony, ideally situated on their shipping lanes. The first mention of a brothel was in 1681. At this time, the authorities allowed sex work to continue unimpeded.
british occupation
In 1795, the British occupied the Cape Colony. The Communicable Diseases Acts were a series of three laws passed in England in 1864, 1866, and 1869. The purpose of the Acts was to stop the spread of venereal disease among the British armed forces by testing sex workers or suspected sex workers. Sex workers were seen as a source of disease.
Between 1883 and 1886 there were reports of syphilis in nearly half the Cape districts. The Communicable Diseases Act was enacted in the Cape Colony in 1885, requiring the registration and regulation of sex workers. In 1886 the Colonial Medical Committee protested that there were “not less than 400 public prostitutes in the Cape”, over whom the government had no medical supervision.
In 1898, further restrictions were placed on sex work: the Cape Town Municipality introduced a regulation punishing owners of properties used as brothels. The Police Offenses Amendment Act was also passed, which expanded the punishment for soliciting and criminalized pimping.
hometown colony
The administrators of the Colonia de Natal tried to implement the Contagious Diseases Law in 1886. The law sought to regulate and control sex workers, as they were blamed for the spread of syphilis and gonorrhea. The introduction of this law failed; it was first rejected in the legislative council and later, after another attempt to pass it, the colony secretary refused to give a Royal Assent.
In 1882, the Police Offenses Act penalized any “prostitute loitering or found in any public place for the purpose of solicitation or prostitution to the public annoyance.” The punishment was a fine or imprisonment.
In 1890, the police estimated that there were almost 200 sex workers in Natal, most of whom were in Pietermaritzburg. Authorities there hardly cracked down on brothels, but their counterparts in Durban did.
Transvaal Colony
The trading of gold in the Transvaal in 1886 led to an increase in businesses and population. During the first 10 years of large-scale gold mining, there was very little regulation of sex work on the Witwatersrand. It is estimated that at the end of the 19th century around 10% of women in Johannesburg were sex workers.
In 1902, the Transvaal passed a law stating that: “Any male who knowingly lives wholly or partly on the proceeds of prostitution… shall be guilty of an offence.” The legislation also penalizes the activities of men who prostitute themselves.
Union of south africa
In 1910, the colonies united to form the Union of South Africa. One year after the formation of the union, Law No. 41 of 1911 was enacted, which established that: “Any person who, being a doorman or having the management of any place of public recreation, knowingly allows pimps or prostitutes to frequent… will be responsible for the sentence.” The focus of the act was on brothel owners.
Interracial sexual relations were considered immoral. It was in this sense that the Immorality Law No. 5 of 1927 was passed, which prohibited interracial sex. The law also prohibited the “pimping” of women for interracial relationships, and an African woman could be jailed for up to six years for provoking a white man to have sex with her.
In trials of this era, courts often viewed sex workers as unreliable characters. In it rex against christ case, the court held that before a court will accept a prostitute’s testimony, it must be fully corroborated.
Racial segregation
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 operation of a brothel and the pimping and subsistence of the earnings of prostitutes.
Despite these laws, sex work continued. For example, anthropologist Sheila Patterson noted that “visiting ship crews were said to frequent the nightclubs and dive sites in Cape Town.”
Courts at the time lessened the severity of the rape of a sex worker. In the obiter dictum of R against Sibande, the court stated that: “The rape of a prostitute, for example, although it is a crime of rape, would not normally command a penalty of the same severity as that imposed for the rape of a refined and good-natured woman.”
Towards the end of the 1970s there were calls for the decriminalization of prostitution. In 1977, Cape Town’s medical officer of health, Reg Coogan, claimed that proper policing of him lay in legalizing him and parliament held a debate on decriminalizing sex work in 1988.
In 1988, the apartheid regime ended any hope of decriminalization when it passed the Immorality Amendment Act No. 2 of 1988. This made engaging in sexual activity for a reward a criminal offense.
morality has changed
The history of sex work in South Africa clearly shows how various governments have struggled to control it. The colonial period saw sex work as a source of disease; the apartheid system saw it as an enabler of interracial relations. The democratic government seems to have created at least an environment in which calls for the decriminalization of sex work are no longer considered taboo.
Twenty-nine years after the interim constitution, the morality of the country has changed, constitutionalism has taken hold, and the legislature has become more solid; this gives the country the opportunity to decriminalize the oldest profession in the world.
Why should sex work be legal?
According to Human Rights Watch, decriminalizing sex work improves the legal protection of sex workers and their ability to access key rights, such as justice and health care. Legal recognition of sex workers and their occupation maximizes their 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 view sex workers as easy targets.” because they are stigmatized and are unlikely to receive help from the police.” .
Criminalizing sexual relations between consenting adults, 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 tell consenting adults who they can have sex with and on what terms.
Thifhelimbilu Meshack Nembudani holds a BA and an LLB cum laude. He currently works as a lawyer candidate.
