In this special report on a move to oppose a new court bid for the legalisation of prostitution in South Africa, Ryan Smit founder and director of Cause for Justice (CFJ) considers the biblical and constitutional implications of the matter. He also explains why it is an opportune time for South Africans to resist the dangerous agenda of the pro-prostitution activists
Introduction
On Monday April 7 2025, five civil society organisations submitted court applications to the High Court in Cape Town to become respondent (opposing) parties in the case on the decriminalisation of prostitution in South Africa. Another 16 organisations want to join as friends of the court, most of whom are in favour of decriminalising prostitution.
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 they want the court to direct various state organs to withdraw all criminal proceedings, expunge all criminal records, and release any persons serving a prison sentence for engaging in prostitution.
Where do things currently stand?
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.1 So too, is paying someone (a prostituted person or a third party) in order to engage in a sexual encounter with a prostituted person.2 The actions and activities of intermediaries, e.g. brothel keepers and pimps (the so-called “sex industry”), are also crimes.
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’.3
Despite initially noting their opposition, the SA government withdrew its defence of the legislation at the end of 2024, leaving the case completely unopposed. One of the parties seeking to uphold the legislation is Cause for Justice (CFJ).4 It is among the five parties that submitted papers to intervene in the case. In its court papers, CFJ notes its main reason for wanting to participate in the case as being, to represent the public interest in retaining the criminal ban on prostitution.5
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Its 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.
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.6 Prostitution is an irredeemable vice.
From a biblical perspective
Humanity, we know, has been created in the image of God -– in His likeness (Genesis 1:26–28) – which, although marred by sinfulness, continues to be central to human personhood despite mankind’s rebellion against God’s rule (Genesis 9:5–7). To redeem mankind, the Lord Jesus Christ came to earth as a man and laid down His sinless, spotless life for fallen human beings, that we may be saved from damnation and reconciled to God in this life as His adopted sons and daughters, sealed by the Holy Spirit, and welcomed and cared for in the Father’s house (2 Corinthians 5:17–21; Galatians 4:1–7; Romans 8:18–28).
These truths about the nature, purpose, value, and provision for the redemption and restoration of human beings, have a wide array of entailments, amongst others, the “Golden Rule” – “Doing to others as you would have them do to you” (Matthew 7:12; Luke 6:31). The plain and simple truth is that no-one would (nor should anyone) wish upon their own daughters, sisters or mothers to live the life of a prostituted person.
In Leviticus 19:29, the Lord says to Israel: “Do not degrade your daughter by making her a prostitute, or the land will turn to prostitution and be filled with wickedness.”
As a society, we could therefore not condone or give legal approval to the practice of prostitution, seeing as it is premised on devaluing/ relegating human beings to a degraded state –- not as image-bearers of God with inherent worth, but as means to be used for illicit ends.
Sex (in God’s purposes) and prostitution
Central to humanity’s created purpose is extending the human family through the sexual union of husband and wife (Genesis 1:28, 2:24). God made this “one-flesh” union to be the most pleasurable experience of all in this life (Songs of Solomon; Proverbs 5:18–19).
Sex, therefore, is a wonderful gift in the context of marriage for relational bonding and security, new life (creating community), and reciprocally giving and receiving pleasure. Removed from its covenant context, however, the act of sexual intercourse becomes destructive, with destructive consequences mounting as the act is removed further away from its intended context.
Those who propagate acceptance of prostitution attempt to regard “sexual encounters for the purpose of pleasure (only)” as an autonomous legal act/entitlement, separated from the relational and life-giving aspects of sex. This ideology is exemplified by claims of so-called “sexual (and reproductive) rights” and “sex work”. Besides attempting to redefine and reduce sex to a mere physical act of which the sole aim could be sexual pleasuring, prostitution interjects financial or other reward to procure sexual encounters. The reward represents a ransom for prostituted persons’ consent to a sexual encounter they would not otherwise have entered into (were it not for the economic receipt).
From Scriptures such as Matthew 19:3–12,7 1 Corinthians 6:9–20, Hebrews 13:4 and others, the revealed biblical sexual ethic is that human sexuality can be expressed in one of three ways:
- Within marriage (union between husband and wife – “yadha”, with concomitant pleasure and bringing forth the next generation)
- In celibacy (abstaining from sexual activity in dependence on God’s sufficiency in singleness)
- Through sexual immorality (illicit sexual activity violating God’s purpose for sex, including “porneia”)
Sexual encounters in prostitution, therefore, is not sex as God created it. Prostitution constitutes a corruption, distortion, misappropriation and abuse of human sexuality for ulterior purposes, and is dependent for its societal acceptance on a severe reduction and unbiblical redefinition of sex. In biblical/ divine law, prostitution therefore constitutes a sexual offence. (Exodus 20:14; Leviticus 19:29; Deuteronomy 23:18; 1 Corinthians 6:16–17)
As for all afflicted by sin of whatever kind, God’s grace, forgiveness and new life is available to the repentant in prostitution. (John 8:2–11; Luke 7:36–50; Matthew 21:31–32; Hebrews 11:31; James 2:25) No-one is out of the reach of God’s salvation. In Isaiah 59:1, the prophet by the Holy Spirit declares, “Surely the arm of the Lord is not too short to save, …” and the cross and empty tomb confirms it.
In 2025? Really?
Whilst the above characterisation may sound foreign to some in contemporary South African society, it seems to be in line with current law and with the Constitutional Court’s official pronouncement on the validity of the current law.
Section 20(1A)(a) of the Sexual Offences Act provides that:
Any person 18 years or older who –
- has unlawful carnal intercourse, or commits an act of indecency, with any other person for reward, … shall be guilty of an offence.
“[U]nlawful carnal intercourse” is defined in section 1 of the same legislation as “carnal intercourse otherwise than between husband and wife“.
In 2002, the Constitutional Court judged the above wording (criminal ban) to be in line with the Constitution, finding that –
“… it is clear that our constitutional framework, not only permits, but requires the Legislature to enact laws which foster morality, but that morality must be one which is founded on our constitutional values.”8
and
“… we are not satisfied that the appellants have established that the overall purpose of the legislation is manifestly inconsistent with the values of our new order.”9 (own emphasis)
In addition to the above, the Court ruled that –
“Our Constitution values human dignity which inheres in various aspects of what it means to be a human being. One of these aspects is the fundamental dignity of the human body which is not simply organic. Neither is it something to be commodified. Our Constitution requires that it be respected. We do not believe that section 20(1)(aA)10 can be said to be the cause of any limitation on the dignity of the prostitute. To the extent that the dignity of prostitutes is diminished, the diminution arises from the character of prostitution itself. The very nature of prostitution is the commodification of one’s body. Even though we accept that prostitutes may have few alternatives to prostitution, the dignity of prostitutes is diminished not by section 20(1)(aA) but by their engaging in commercial sex work. The very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body.”11 (own emphasis)
Next steps
Approximately 20 parties submitted papers 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 2024 on these additional parties’ 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.
Concluding exhortation
Both Divine Law12 –- based in the person and character of God, which affirms the value of human beings created in His image, including the creational purpose of sex –- and South African law -– with its roots in Divine Law and the Constitution – prohibit indiscriminate sexual acts for reward.
South Africans therefore have much reason to hope, pray and support efforts to oppose the decriminalisation of prostitution.
Therefore take up the whole armour of God, that you may be able to withstand in the evil day, and having done all, to stand firm. (Ephesians 6:13)
Other and/or related content:
- 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/
Article footnotes:
1In terms of section 20(1A)(a) of the Sexual Offences Act, 23 of 1957. In terms of current South African law, sex outside of marriage, in and of itself, is not a criminal offence. However, to receive payment for a sexual encounter with another who is not one’s spouse, is a crime.
2Section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007.
3See 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.
4 Cause 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.
5 “CFJ seeks leave to intervene in the public interest, i.e. to represent the interest that the public has in the legislation being upheld and implemented to achieve its legitimate legislative aims.” From CFJ’s intervention application.
6 See the SALRC Report and paragraph [86] of S v Jordan (2002).
7 Here Jesus refers back to Genesis 1 and 2.
8Paragraph [105] of S v Jordan (2002).
9Paragraph [114] of S v Jordan (2002).
10Section 20(1)(aA) was replaced by section 20(1A)(a), but the wording remained unchanged.
11Paragraph [74] of S v Jordan (2002).
12As revealed in Scripture, creation and God’s sovereign acts over the course of history.
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