Government ‘withdraws’ bill to decriminalise prostitution: ACDP welcomes move

Deputy Minister of Justice and Constitutional Development John Jeffery announced in Parliament this week that the department will not table the “Prostitution Bill” this session due to concerns about its constitutionality.

“This means that we will not be able to, at this point, proceed with the bill in its current form. We will therefore be engaging with roleplayers and drafting provisions on the regulation of sex work so as to ensure that a revised bill is ready for introduction at the beginning of the next administration,” he said in his budget vote speech.

He said, however, that the decriminalisation of “sex work” and the human rights of “sex workers” remain high on government’s human rights agenda. Jeffery says criminalisation of sex work contributes to gender-based violence and femicide as it leaves sex workers unprotected by the law, unable to exercise their rights and open to abuse generally.

Opponents of the bill say there is a growing body of scientific evidence that shows that full decriminalisation of prostitution is harmful. They say that prostitution exploits vulnerable women and is a heinous form of gender-based violence

ACDP Whip and member of the Justice and Correctional Services Portfolio Committee, Steve Swart, has welcomed the decision not to table the bill which sparked much controversy when it was open for pubic comment from December 9 last year until the end of January.

“While the reason given for not continuing with the bill was constitutional, in that no regulatory framework was in place to deal with decriminalisation, we have no doubt that overwhelming opposition to the bill, particularly from the ACDP, churches and other faith-based organisations, and organisations such as the Collective Against Sexual Exploitation, also played a role in this decision, particularly given the looming general elections in 2024,” says Swart in a media statement.

“Years ago, the ACDP participated in the drafting of the extensive review of the criminal law relating to sexual offences in the Justice and Constitutional Development Portfolio Committee, which resulted in the Criminal Law (Sexual Offences) Amendment Act. During the then deliberations of the Justice Portfolio Committee it was decided to retain the criminalisation of prostitution in the Sexual Offences Act, and to insert section 11 (criminalising the buyer of sexual services) into the Criminal Law (Sexual Offences) Amendment Act. This was considered a constitutionally permissible legislative option,” he says.

His statement continues: “We were then appalled that at a time when South Africa is facing severe moral degradation and dysfunctional families, resulting in high levels of crime and violence (particularly against vulnerable women and children), gangsterism, drug abuse and human trafficking, the department was considering such a far-reaching Bill.

“In the ACDP submission to the department in January 2023, we argued that the Bill flies in the face of the findings and recommendations of the extensive process conducted by the South African Law Reform Commission at the request of the department (see SALRC Report: Project 107: Sexual Offences: Adult Prostitution: 16 June 2015, first published 2017).  Instead, the department chose the extreme position of decriminalising prostitution, which was not recommended by the SALRC.

“The department also largely ignored the findings of the Constitutional Court judgment in Jordan v The State 2002(6) SA 642 (CC), which upheld the constitutionality of legislation criminalising prostitution:

“The [Sexual Offences] Act pursues an important and legitimate constitutional purpose, namely to outlaw commercial sex.” (para 14)

“The state contended that the legislation was “designed” to promote the protection or improvement of the quality of life and human development, and as such is sanctioned by section 26.  Prostitution is associated with violence, drug abuse and child trafficking.  These are the legislative facts.” (para 24)

“Article 18 of the African Charter of Human Rights, to which South Africa is a signatory, states that, ‘The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.’

“The Bill directly conflicts with section 18, and would result in a further breakdown of the morals and traditional values recognised by the majority of South Africans.

“According to the Collective Against Sexual Exploitation, ‘The truth is that prostitution is in itself a gross violation of human dignity and is inherently exploitative. It exploits the vulnerability of those who are desperate and socio-economically marginalised. It turns women into merchandise and entraps them in servitude to a system built on and perpetuated by gender inequality. The only way to stop the abuse and exploitation experienced by prostituted persons is by eradicating the system of prostitution. This means that full decriminalisation is simply not an option.’”

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