The Sex Workers Education and Advocacy Taskforce (SWEAT) has launched a landmark legal challenge to decriminalise sex work in South Africa.
The proceedings were officially launched on 3 May 2024 in the High Court (Western Cape Division, Cape Town).
SWEAT is supporting the first applicant, SH, who is a sex worker based in Cape Town. In her founding affidavit, SH chronicles the harassment, lack of protection, stigmatisation and discrimination that she endures as a sex worker. In this application, SH and SWEAT seek to have the legislation that criminalises sex work in South Africa declared unconstitutional.
SWEAT has been advocating for the decriminalisation of sex work for nearly three decades. Most of this work has included lobbying the South African government to bring about law reform which would repeal the remaining sections of the Sexual Offences Act 23 of 1957 (previously called the Immorality Act) as well as the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and create a legislative framework which would protect the rights of sex workers.
The ANC passed a resolution at their 55th National Conference to decriminalise sex work and enable access to justice by sex workers. In addition, in March 2016, the current President of South Africa, then in his capacity as the chairperson of the South African National AIDS Council (SANAC), promised to pursue the development of legislation and policy that would ensure that sex workers could realise their human rights and access to justice aspirations. Since then, SWEAT has been in consultation with the Department of Justice and Constitutional Development to ensure that these commitments are realised. This culminated in the publication of draft legislation for public comment in the Government Gazette in November 2022.
Unfortunately, Parliament’s draft decriminalisation bill was subsequently withdrawn and, as a result, SWEAT decided to join SH and turn to the courts in pursuit of the applicable legislation being declared unconstitutional.
The applicants are represented by Bowman Gilfillan Inc. 10 sex workers have also filed affidavits in support of this application, each detailing their own experiences of harassment, violence, stigmatisation and discrimination under the current legal framework.
The identities of the first applicant and those who have submitted supporting affidavits are being protected to safeguard their personal safety, dignity and privacy. The case is also supported by experts whose affidavits offer insights into the legal, social and public health consequences of the continued criminalisation of sex work in South Africa.
The respondents include the Minister and Director General of the Department of Justice and Constitutional Development and the National Director of Public Prosecutions
SWEAT contends that the national legislation violates several constitutional rights of sex workers, including their rights to privacy, dignity, freedom to choose their trade or occupation, fair labour practices and various aspects of freedom and security of the person.
The case is of significant public interest as it addresses the urgent need to reform laws that not only violate the constitutional rights of sex workers but also perpetuate social injustice, discrimination and public health risks. By challenging the criminalisation of sex work, SWEAT aims to ensure a safer, more equitable society for all, while advancing human rights protections for one of South Africa’s most marginalized communities. The outcome of this case could set a transformative precedent on the international stage for the decriminalisation of sex work which will impact both legal frameworks and societal attitudes.
An in-person press briefing is scheduled:
Date: Thursday, 10 October 2024
Venue: SWEAT, 7-9 Stanley Road
Time: 14h00 – 16h00
To attend the briefing or for more information, media inquiries or interview requests, please contact:
Megan Lessing / meganl@sweat.org.za / 081 306 7812 (Phone/WhatsApp).
Follow livestream here.