Beyond Criminalisation: South Africa's Constitutional Imperative for Sex Worker Safety and Rights

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The Foundation of Universal Rights

The recent Workshop on Decriminalisation and Regulation of Sex Work, convened under the auspices of the Minister of Justice and Constitutional Development, Mmamoloko Kubayi, was inaugurated with a powerful reminder of South Africa’s foundational principles. Deputy Minister Andries Nel opened the deliberations by reciting the Preamble to the Constitution, setting the moral and legal framework for the sensitive discussion ahead.

The Deputy Minister immediately anchored the workshop on the principle of human rights, arguing that they are universal, indivisible, and equally applicable to all emphatically rejecting any notion of "Lite, Standard, or Deluxe" human rights packages. This core constitutional mandate to build a society based on democratic values, social justice, and fundamental human rights—serves as the non-negotiable directive for reforming the legislative approach to sex work.

The state is constitutionally obliged to advance dignity, equality (Section 9), and the freedom and security of the person (Section 12) for everyone. The continued criminalisation of sex work, Deputy Minister Nel contended, undermines these rights and leaves sex workers profoundly vulnerable.

The Difficult Legislative Journey

The path to a viable legal framework has been complex and drawn out. A pivotal moment was the 2015 report from the South African Law Reform Commission, which, after extensive consultation, recommended retaining the model of total criminalisation with an option for diversion. While Cabinet noted this report in 2017, no definitive policy decision was taken.

The conversation shifted decisively in 2023, driven by Pillar 3 of the National Strategic Plan on Gender-Based Violence and Femicide (GBVF). A bill was prepared to repeal the criminalisation of sex work, based on the clear understanding that criminalisation contributes directly to GBVF by isolating workers and preventing them from seeking state protection.

However, the legislative process faced a critical constitutional roadblock. The Office of the Chief State Law Advisor, supported by Senior Counsel, determined that simple decriminalisation was insufficient. The Bill required a comprehensive regulatory framework to ensure compliance and constitutional alignment. This necessity led to the renewed, comprehensive efforts to develop legislation that simultaneously decriminalises and regulates the industry.

The Comprehensive Mandate

The goal of the anticipated legal framework is multi-faceted, aiming to achieve a critical balance between individual rights and public welfare. Its core objectives include:

• Promoting Safety and Dignity: Protecting sex workers' human rights and reducing pervasive stigma.

• Public Health: Promoting access to healthcare services and eliminating stigma within health systems.

• Combating Trafficking: Implementing preventative measures against the trafficking of persons.

• Empowerment and Conditions: Improving working conditions and empowering workers to advocate for their rights.

  
  

Key Policy Challenges for the Workshop

The workshop's central task over the coming days is to close the legislative gaps by addressing nine critical policy areas that require cross-departmental alignment:

1. Labour Rights: Determining the classification of sex workers under the Labour Relations Act, including potential entitlement to minimum wage, social security benefits, protection from unfair dismissal, and the right to unionise.

2. Access to Support Services: Planning funding for essential psycho-social, legal, and counselling services, and establishing effective pathways for those wishing to exit the industry.

3. Health Care: Identifying required health services and developing strategies to eliminate discrimination and stigma within healthcare facilities.

4. Role of Municipalities: Defining the extent of local government involvement, including whether a national template or localised by-laws are appropriate for local regulation.

5. Licensing and Operating Certificates: Establishing a fair, transparent, and efficient system for licensing operators and sex workers.

6. Establishing a Regulatory Body: Assessing the feasibility, resource implications, and required enforcement powers of a new oversight body (either independent or governmental).

7. Immigration Considerations: Implementing safeguards to prevent South Africa from becoming a destination for sex tourism while ensuring the protection of vulnerable non-citizens.

8. Law Enforcement: Deciding whether specialized units or general law enforcement should manage sex work enforcement, and ensuring the South African Police Service (SAPS) receives adequate, anti-stigma training.

9. Departmental Responsibility: Identifying the most appropriate government Department such as Justice, Social Development, or Employment and Labour to administer the future Act.

   
   

Conclusion

Deputy Minister Nel concluded the opening address by acknowledging the complexity and highly sensitive nature of the issue. The ultimate responsibility, he stated, is not to satisfy every strong opinion, but to develop a legal framework that places the safety, dignity, and rights of all persons within the sex work industry at its core, while simultaneously protecting the broader well-being of society. The workshop’s goal is to move forward responsibly, building sound institutions that advance South Africa’s constitutional commitments.