Prostitution under the Sexual Offences Act in South Africa: A Constitutional Test
Keywords:
Sex worker, trade, occupation, profession, ConstitutionAbstract
The paper aims at tackling the international instruments that address the issue of prostitution as it relates to the right to work as enshrined in the South African Constitution. The South African Constitution is the ultimate standard against which proposals for reforming the law on prostitution must be measured. Prostitutes should be afforded those particular human rights that are extended to women under international treaties and the South African Constitution. On this premise, it is obvious to state that sex workers are firstly human beings before they can be labeled prostitutes, which means they deserve to be treated equally as human beings. They are only rendered vulnerable to abuse by the type of work that they engage in. However, the supreme law of the country (the Constitution) expressly states that every citizen has the right to choose their trade, occupation or profession freely; but the practice of a trade, occupation or profession may be regulated by law. This should be taken to include the sex workers. They should be free to engage in their practice for as long as they enter the industry voluntarily. The security agents may only be involved where one is compelled to enter into prostitution, which will then mean that they would be dealing with the one who compels the sex worker to enter into the industry and not the sex worker herself. In this case the sex worker would be a victim in need of protection.
References
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Act 108 of 1996
Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.
Everyone has the right to fair labour practices (2) Every worker has the right – (a) to form and join a trade union (b) to participate in the activities and programmes of a trade union, and ( c ) to strike
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With reference to Section 20(1)(aA) of Act 23 0f 1957 and Section11 of Act 32 of 2007
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Everyone has the right to freedom of peaceful assembly and association
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Hereinafter referred to as the CCMA
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Hereinafter referred to as the LRA
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case number JR 2877/06
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Prostitution is not an activity exclusively engaged in by women, but women are disproportionally represented in the sex industry, including prostitution
See fn. 6 above
