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Foreign nationals will need work permits to sell sex legally in South Africa, says Justice Department

Pretoria – Deputy Minister of Justice and Correctional Services John Jeffrey says with the impending decriminalisation of sex work in South Africa, existing laws including residence for foreign nationals and municipal by-laws would still need to be respected in the trade.

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“Existing law such as municipal by-laws on loitering which I think will affect people on the streets, being able to sell and advertise sex would still apply and those are the responsibility of the municipality. The municipalities have to ensure that those laws are applied,” the deputy minister told broadcaster Newzroom Afrika.

“So existing laws would effectively apply. When it comes to the issue of foreign migrants selling sex, they will not be able to sell sex unless they have a work permit or if they have the ability and the right to work – asylum seekers, refugees and those kinds of categories. So, it will be the existing laws apply, and obviously those laws must be applied.

“I think it is an issue of the State enforcing the laws, and also of people being law-abiding,” he said.

Women’s rights activists. File Picture: Phando Jikelo/African News Agency (ANA)

Earlier on Friday, Minister of Justice and Correctional Services, Ronald Lamola, outlined progress on the decriminalisation of sex work in South Africa through the Criminal Law (Sexual Offences and Related Matters) Amendment Bill.

Cabinet approved the publishing of the bill on November 30, 2022 for public comments.

The Bill repeals the Sexual Offences Act (previously Immorality Act), 1957 (Act 23 of 1957). It also repeals Section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) to decriminalise the sale and purchase of adult sexual services.

“Sex work and the question of how the South African legal system should respond to sex work and related activities has been the subject of considerable debate in South Africa.

“Sex work is driven by a complex intersection of social and economic factors in which poverty, unemployment and inequality are key drivers. Within the current South African context, the debate around sex work has been complicated by high levels of unemployment, crippling poverty, burgeoning numbers of migrant and illegal foreign job seekers, high levels of sexual violence against women, the HIV/Aids epidemic, drug/substance abuse and targeted exploitation of women engaging in sex work by third parties, authorities and buyers,” Lamola told journalists in Pretoria.

“The proposals of this Bill respond to the list of interventions proposed in Pillar 3 (Protection, Safety and Justice) of the National Strategic Plan on Gender-Based Violence and Femicide (GBVF), which enjoins the criminal justice system to provide protection, safety and justice for survivors of GBV, and to effectively hold perpetrators accountable for their actions,” he said.

Currently, sex work is criminalised by way of two statutes, namely the Sexual Offences Act, 1957 (Act No. 23 of 1957) (previously called the Immorality Act) and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32, 2007 (Act No. 32 of 2007).

The legislative framework that currently regulates sex is also fragmented as the Sexual Offences Act, 1957 has already been partially repealed with the remaining sections on sex work awaiting review.

There are also municipal by-laws which impact on selling sex, with, for example, certain municipalities using the “nuisance” or “loitering” by-laws to remove or prosecute sex workers.

Lamola said criminalising sex work has not stopped the selling or buying of sex, nor has it been effective.

“If anything, it has led to higher levels of violence against sex workers. In addition, criminalisation affects predominantly women, with the female sex worker usually being the one who is confronted by law enforcement, but the male client isn’t. The National Prosecuting Authority has also indicated a very low percentage of cases or prosecutions for such transgressions,” he said.

The Bill follows a two-step approach to sex work.

“It does not decriminalise and regulate the industry all at once. It deals with decriminalisation only, with regulation to follow at a later stage. It was thought to be important to deal with the decriminalisation first, so as to ensure that sex workers are no longer criminally charged. This will mean greater protection for sex workers.

“Decriminalisation will de-stigmatise sex work and enable access to basic services and protection by law enforcement agencies. Existing laws prohibiting children from selling sex and trafficking for sexual purposes, remain in force,” said Lamola.

With regards to regulation, Lamola said municipal by-laws would still be able to provide where solicitation in public spaces may or may not take place, for example, prohibiting the selling of sex in certain areas.

“This is similar to the prohibition on the location of taverns and shebeens, where there can be restrictions imposed to prohibit trade in residential neighbourhoods, near schools and/or religious buildings,” he said.

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