The Department of Justice and Constitutional Development has gazetted the Criminal Law (Sexual Offences and Related Matters) Amendment Bill for public comment.
According to the department, the new bill will decriminalise the sale and purchase of adult tlof tlof services in the country and this is also supposedly a form of employment in South Africa, and so it reduces the rate of unemployment.
The proposals under this bill respond to a list of interventions proposed in the National Strategic Plan on Gender-Based Violence and Femicide (GBVF), with a specific focus on the protection, safety and justice of women in South Africa, it said.
Justice and Constitutional Development Minister Ronald Lamola said that the National Strategic Plan contains a list of key interventions, key activities and indicators. One of the key activities is the finalisation of the legislative process to decriminalise sex work.
“This follows the view that the ongoing criminalisation of sex work contributes to GBVF, as it leaves sex workers unprotected by the law, unable to exercise their rights as citizens and open to abuse generally, not least when they approach State facilities for assistance,” Lamola said.
The bill enjoins the criminal justice system also to hold perpetrators accountable for their actions. “Once this bill is passed into law, it will, amongst others, protect adultery technicians against abuse and exploitation,” the department said.
As prescribed in the bill, it will only decriminalise sex work insofar as it relates to the buying and selling of adult sexual services.
Engaging in sexual services with children or persons who are mentally disabled remains an offence under the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
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The minister emphasised that although current legislation and municipal by-laws continue to criminalise the adult practice, this has not “stopped the selling or buying of tlof tlof, nor has it been effective”.
“If anything, (criminalisation) has led to higher levels of violence against adult entertainers. In addition, criminalisation affects women predominantly, 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.
Lamola said the bill has clauses that seek to:
- Repeal the Sexual Offences Act, 1957 and section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
- Deal with the expungement of criminal records of persons convicted of, engaged in, rendering or receiving tlof tlof services from persons 18 years or older.
- Handle the transitional provisions pertaining to criminal proceedings relating to tlof tlof services rendered or received by persons 18 years or older, which were instituted prior to the commencement of this Act.
“It is hoped that decriminalisation will minimise human rights violations against magoshas. It would also mean better access to health care and reproductive health services for thigh vendors, as well as compliance with health and safety and labour legislation. It would also afford better protection for prostitutes, better working conditions and less discrimination and stigma,” Lamola said.
Lamola told the briefing that the bill would follow a “two-step approach”, with decriminalisation preceding regulation of the industry.
“It [is] important to deal with decriminalisation first so as to ensure that magoshas are no longer criminally charged. This will mean greater protection for sex workers. Decriminalisation will destigmatise sex work and enable access to basic services and protection by law enforcement agencies.”
“Existing laws prohibiting children from selling tlof tlof and trafficking for sexual purposes remain in force.”
“With regards to regulation, 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 explained.
