Pro-prostitution activists have launched a constitutional challenge against the laws criminalising prostitution in South Africa and the government is not even opposing them. Ryan Smit founder and director of Cause For Justice (CFJ) explains what is at stake if the sex trade is legalised and why CFJ wants to oppose the bid
On Monday April 7 Cause for Justice (CFJ)i submitted an intervention application to the High Court in Cape Town to become a respondent (opposing) party in the case on the decriminalisation of prostitution in South Africa.
Background
In May 2024, a pro-prostitution organisation, the Sex Workers Education and Advocacy Trust (SWEAT), and associated parties brought a court application challenging the constitutional validity of legal provisions that criminalise prostitution. The applicants are asking the court to decriminalise adults’ engaging in sexual acts for reward (“prostitution”), both prostituted persons and so-called “sex buyers”. In addition, the applicants want the court to direct various state organs to withdraw all criminal proceedings, expunge all criminal records, and release any persons serving a sentence for engaging in prostitution.
Motivation for CFJ’s intervention
The state of current South African law is that to receive payment for a sexual encounter with another who is not one’s spouse, is a crime.ii So too, is paying someone (a prostituted person or a third party) in order to engage in a sexual encounter with a prostituted person.iii
In a matter such as this it is reasonable to expect that the state would defend a law made by Parliament as direct representative of the South African electorate. The Constitutional Court previously upheld the legislation in S v Jordan (2002) and the South African Law Reform Commission (SALRC), after a wide-ranging and intensive seven-year project, recommended in 2015/2017 that the current total criminal ban on prostitution should be retained and further steps be taken to assist prostituted persons to divert out of the “commercial sex trade”.iv
Despite initially noting their opposition, CFJ learned at the end of 2024 that the SA government had withdrawn its defence, leaving the case completely unopposed. CFJ seeks to uphold the legislation and accordingly applied to join the case to represent the public interest in retaining the criminal ban on prostitution. CFJ’s stance is based on the fundamental dignity of each human person, endowed with inherent worth and incalculable value. Prostitution involves the commodification of the human body, reducing human beings to commercial sex objects/ commodities for the sexual gratification of predatory individuals, i.e. it violates their personhood and equal dignity as members of the human family.
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Research and first-hand accounts of the practice and system of prostitution from around the globe, show that prostitution is inherently exploitative, violent and abusive, and is associated with an array of destructive and harmful consequences for the individuals involved in it, their families, surrounding communities and the rest of society.v Prostitution is an irredeemable vice.
Next steps
Approximately 20 other parties, in addition to CFJ, applied to court on April 7 to be admitted as respondents/ opposing parties (four) or amici curiae (friend of the court parties – 16). If the applicants opt to oppose these applications, the progress of the case could be delayed – with the court potentially only ruling by October on CFJ and others’ participation in the case.
The court hearing of the merits of the case is expected to take place during the first semester of next year.
To find out more:
- https://gatewaynews.co.za/historic-summit-unites-delegates-in-vision-of-ending sexual-exploitation-in-africa-in-our-lifetime/
- https://mg.co.za/thought-leader/opinion/2022-12-07-defending-a-prostituted-persons dignity-starts-with-saying-no-to-full-decriminalisation/
- https://www.news24.com/amp/news24/opinions/columnists/guestcolumn/opinion we-need-to-make-sense-of-the-transactional-sex-debate-20221210
iCause for Justice is a non-profit human rights and public interest organisation established in 2013 to advance constitutional justice in South Africa. Its mandate involves engaging in the legislative process, governmental and other constitutional decision-making structures, litigation, and public awareness campaigns, to ensure the protection and promotion of fundamental rights, freedoms and obligations. CFJ’s objectives include (amongst others) standing against the abuse and/or misappropriation of constitutional rights and freedoms, especially where it occurs at the expense of constitutionally protected persons or groups or undermines the public interest.
ii In terms of section 20(1A)(a) of the Sexual Offences Act, 23 of 1957.
iii Section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007.
iv See Report on Project 107 Sexual Offences – Adult Prostitution, first published in 2017. Available online at: https://www.justice.gov.za/salrc/reports/r-pr107-SXO-AdultProstitution-2017.pdf.
v See the SALRC Report and paragraph [86] of S v Jordan (2002).
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