Decriminalising “Sex Work” under the Lens of Transformative Constitutionalism: A Commentary on South Africa’s Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2022
DOI:
https://doi.org/10.25159/2520-9515/19842Keywords:
decriminalisation, human rights, transformative constitutionalism, sexual services, economic activity, accountabilityAbstract
This commentary was stimulated by the publication of Notice 1509 of 2022 inviting public comments on the Criminal Law (Sexual Offences and Related Matters) Amendment Bill, 2022 to repeal the Sexual Offences Act 23 of 1957 and section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The purpose is to decriminalise the sale and purchase of adult sexual services including the retrospective application of criminal proceedings that were instituted before the commencement of this Act. Constitutional concerns have been raised against the Sexual Offences Bill-22, and the state has been taken to court to facilitate its promulgation. The National Prosecuting Authority has also issued a moratorium on the prosecution of people selling sexual services until the outcome of the court processes. This is still a live matter that continues to impact on the South African government’s 7th administration despite its passage during the 6th administration. Any reference to the previous ministers and the Department of Justice and Constitutional Development is still of equal application. This commentary argues against the selling of sexual services for profit under the lens of transformative constitutionalism. It classifies the selling of sexual services for profit as “commercial sex” and does not consider it as “work” within the framework of human rights. It is not a comparative study and is limited to the South African context.
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Brink v Kitshoff 1996 (6) BCLR 752 (CC).
Glenister v President of the Republic of South Africa 2011 (7) BCLR 651 (CC).
Grootboom v Government of the Republic of South Africa 2000 (11) BCLR 1169.
Letimele v Cape Town International Convention SOC Company LTD C575/ 2021 Labour Court, Cape Town.
Makate v Vodacom Property (Pty) Limited 2016 (6) BCLR 709 (CC).
National Education Health and Allied Workers Union v University of Cape Town 2003 (2) BCLR 154 (CC).
Nyathi v Member of the Executive Council for the Department of Health, Gauteng 2008 (9) BCLR 865 (CC).
S v Jordaan 2002 (11) BCLR 1117 (CC).
S v Lawrence 1997 (10) BCLR 1348 (CC).
S v Makwanyane 1995 (6) BCLR 665 (CC).
Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (CC).
Tshabalala v The State 2019 ZACC 48.
Legislation
Act on the Regulation of Prostitutes’ Legal Affairs of 2002 (Germany).
Constitution of the Republic of South Africa, 1996 (South Africa).
Constitution of the Republic of South Africa Act 200 of 1993 (South Africa).
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (South Africa).
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Human Rights Act 82 of 1993 (New Zealand).
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (South Africa).
Prostitution Act on the Regulation of Prostitutes Act of 2002 (Germany).
Prostitution Reform Act of 2003 (New Zealand).
Sexual Offences Act 23 of 1957 (South Africa).
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