What does the law say about sex work?

The Sexual Offences Act states that any person who has unlawful carnal intercourse or commits an act of indecency with any other person for reward, is guilty of an offence. This means that under South African law, both the prostitute and the client are guilty of a criminal offence.

In 2002 S v Jordan was heard in the Constitutional Court. The three appellants in this case were prostitutes who had been arrested after the police had raided the brothel where they had worked. During the hearing in the Constitutional Court, the three prostitutes argued that the provisions of The Sexual Offences Act, No. 32 of 2007, violated their rights to equality, privacy, human dignity, economic activity to pursue a livelihood, as well as freedom and security of a person. The Constitutional Court held that the appellants’ reasoning was flawed and dismissed the case.

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In 2007, a long-awaited report on adult prostitution by the South African Law Reform Commission (SALRC) was released. In this report, the SALRC was urged to decide on whether sex work should be legalised; and if so, to what degree it should be legalised. The SALRC proposed two options:

The first option was for the law to remain as it currently is (criminalising both the client and the prostitute), whilst the second option criminalised all role-players engaged in prostitution (brothels, clients and “pimps”) with the exception of the person providing the sexual service. The SALRC preferred the first option.

Both the Commission for Gender Equality and the ANC Woman’s League have come out in recent years in support of the decriminalisation of prostitution.

In summary; currently both the buying and selling of sex is illegal in South Africa. This means that brothel owners, “pimps”, prostitutes and their clients can all be charged under the Sexual Offences Act and the Sexual Offences and Related Matters Amendment Act.

There are no prescribed sentences or punishments for transgressions of this nature; however first time offenders are likely to receive a suspended prison sentence, whilst repeat offenders will most likely find themselves spending time behind bars.