The legalisation of prostitution in South Africa

Prostitution or Sex work has been a crime in the country for a number of decades. In earlier years sex work was not explicitly crminalised and the government relied on various laws to regulate and deal with sex work. With the passage of time sex work was formally regulated and dealt with specifically as a criminal offence by legislation. Those legislative measures still exist to ensure that sex work remains a crime in South Africa. Courts have on a number of occasion been tasked to consider the status of sex workers in the context of the human rights provided for by the Constitution of the Republic (both the interim and the final). In the two seminal cases of S v Jordan and others and Kylie v CCMA the courts approached the status of sex workers on the basis that even sex workers are entitled to the human rights enshrined in the Constitution. The Constitutional Court in Jordan, however refused to decriminalise sex work for those purposes holding that it is for the legislature to decide the issue of decriminalisation. Various interest groups have lobbied for the decriminalisation of sex work in order to give meaning to Constitutional rights of sex workers. The criminalisation of sex work appears to be a case of the state legislating morality and interfering with private individual matters. With a bad history of state interference in private affairs of individuals this practise should be guarded against in the Constitutional dispensation. Criminal law as such should have no application in private instances that cause no harm to any other person or state interests. It appears that the continued criminalisation of sex work is increasingly appearing to be without proper justification and as such it is recommended that the country adopts the New Zealand model of decriminalisation. This will ensure that the rights of sex workers are duly respected