After years of consultations, the draft bill to decriminalise sex work was withdrawn to be redrafted in 2023. Two years later, in June 2025, SWEAT called on the Department of Justice to prioritise the “long-delayed” bill.

In October last year, the organisation launched legal action against the Minister and Director-General of Justice and Constitutional Development, the National Director of Public Prosecutions, and the City of Cape Town.

Last week the Western Cape High Court ruled that dozens of organisation could join the court case as amicus curiae (friends of the court) or as respondents opposing the application.

The NPA has stopped prosecutions while the court process plays out. NPA spokesperson Mthunzi Mhaga said, “While a formal ‘moratorium’ has not been declared in the legislative sense, a directive has been issued within the NPA in line with current legal and parliamentary developments.”

Prosecutors have been instructed not to enroll new cases relating to sections in the the Sexual Offences Act and the Criminal Law (Sexual Offences and Related Matters) Amendment Act, he said.

Mhaga said this means “no new cases should be enrolled under the impugned provisions”, and where cases have already been enrolled, charges should be withdrawn. The cases where the accused has already pleaded are to be postponed pending the outcome of the court case.

With regards to arrests and prosecution going forward, if sex workers are arrested during this period, those charges will not be enrolled by prosecutors, and existing enrolled matters will “either be withdrawn or held in abeyance” until the court makes its ruling.

“This approach reflects both the current legal trajectory and the constitutional obligations on the NPA to act in accordance with evolving jurisprudence and human rights considerations,” said Mhaga.

The Sex Workers Education and Advocacy Taskforce (SWEAT) said it is celebrating the moratorium. In a statement, the organisation said that the decision “is a massive achievement for SWEAT and the sex worker rights movement”.

The organisation was concerned that there had been a spike in arrests, particularly following the launch of its litigation last year. This spike is confirmed by statistics from Cape Town Law Enforcement, which showed a spike compared to previous years, GroundUp previously reported.

SWEAT said in its statement that despite the moratorium, in August sex workers were still arrested in Cape Town, but charges were withdrawn.

“What is clearly illustrated is that arrests will continue even though there is a moratorium on prosecutions. We are therefore calling on the Minister of Police to also agree to a moratorium on the arrests of sex workers pending the outcome of our litigation,” said SWEAT.

Asked whether Cape Town’s law enforcement would continue to arrest sex workers, spokesperson Wayne Dyason said the City’s law enforcement does not “execute arrests for prostitution but may issue fines for solicitation”.

SAPS did not respond to a request for comment.

Written by Liezl Human for GroundUp and republished with permission. The original article can be found here.

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The Sex Workers Education and Advocacy Taskforce (SWEAT), which initiated the litigation along with a sex worker, identified as SH, had urged Cape High Court Judge Andre Le Grange to limit the number of parties seeking to intervene in the matter. But he has ruled that they could all make submissions given the importance and interest in the matter.

It is now likely that the matter will only be heard next year.

The main respondents, the Minister and Director-General of Justice and Constitutional Development, have agreed to abide by the decision of the court.

According to SWEAT, the National Director of Public Prosecutions (NDPP) has issued a moratorium on the prosecution of sex workers until the matter is finally decided, which will almost inevitably end up in the Constitutional Court, which could take some years.

In the matter which came before Judge Le Grange this week, several organisations applied to be joined as respondents: Embrace Dignity, Sanctuary for Families, Equality Now, the Coalition Against Trafficking in Women, and Cause for Justice. They have been provisionally admitted. SWEAT did not oppose their applications as a “matter of convenience”, it said in feedback to interested parties.

The organisations in support of decriminalisation who have been allowed to intervene are: ⁠Sonke Gender Justice, Treatment Action Campaign, Human rights Watch, Amnesty International, UN Working Group on discrimination against Women and Girls, African Policing Civilian Oversight Group (⁠APCOF), Centre for Human Rights (UP), the Dullah Omar Institute for Constitutional Law, Women’s Legal Centre, the Triangle Project, Gender Dynamix, South African Human Rights Commission, Socio-Economic Rights Institute of South Africa (SERI) and Access Chapter 2.

Judge Le Grange also ordered that the Survivor Exit Foundation and the ⁠UN Special Rapporteur on Violence and Discrimination against Women and Girls, both opposing the application, can make submissions as amicus curiae. SWEAT had opposed some of these applications on the grounds that the submissions were duplicated and would take the matter no further.

But while Judge Le Grange acknowledged some overlapping, he indicated that it was in the greater good to give all interested parties an opportunity to make submissions.

In a statement, SWEAT advocacy manager Duduzile Dlamini described the amicus hearings as a “crucial moment”.

“They bring the voices of experts and allies into the courtroom to demonstrate just how much harm these laws cause. For sex workers, this case is not abstract – it’s about dignity, safety and being able to live free from criminalisation,” she said.

SWEAT and SH argue that the laws that criminalise consenting adults for soliciting and engaging in sexual acts for reward, merely stigmatises what they do, makes them more vulnerable, and violates their rights.

They are seeking that certain sections of the Sexual Offences Act, the Criminal Law Amendment Act (Sexual Offences and Related Matters) and bylaws be scrapped.

They further seek an order against the NDPP withdrawing all charges and criminal proceedings brought in terms of these impugned provisions, release anyone serving sentences, and expunge criminal records.

In her affidavit, SWEAT director Emily Craven said SH and those supporting her wished to bring an end to the discrimination, harassment and lack of protection due to the criminalisation of their trade.

She said it was estimated in 2015 (the latest available research) that there were between 131,000 and 182,000 adult female sex workers in South Africa. This number did not account for adult male sex workers, or transgender or non-binary sex workers.

“Sex work forms part of the informal sector. It is an economic necessity for some. It is not the norm for them to have a pimp or to work in a brothel. The majority support between three and nine people.

“When comparing full-time sex workers income with data from Statistics South Africa on monthly earnings, sex workers are earning more than clerks, sales and services, crafts and related trades and up to six times more than domestic workers,” said Caven.

Craven said for laws to be rational and constitutional they must be underpinned by a rational government purpose, “otherwise they are arbitrary and violate the rule of law and the protection against arbitrary arrest and detention”.

SWEAT and SH argue there is no legitimate purpose underpinning the laws. In almost all instances, sex workers are arrested and or detained but not formally changed.

Craven said policy reasons for the criminalisation of sex work were outdated. Based on research and reasoning, they are no longer applicable.

“Upholding our constitutional challenge will not result in sex work being immediately available on any basis. For example, we do not in these proceedings challenge the provisions that criminalise the keeping or operation of a brothel.”

In 2022, a Bill to repeal the criminalisation had been published for comment. But it was later withdrawn and its fate is unclear.

Written by Tania Broughton for GroundUp and republished with permission. The original article can be found here.

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Such laws merely stigmatise what they do, make them more vulnerable and violate their rights, including their rights to dignity, they say.

They want to be able to trade lawfully and with the respect and protections that legality brings.

The challenge, set down in the Western Cape High Court, has been spearheaded by SH, a mother of three, and SWEAT with supporting affidavits by ten other sex workers and experts on the issue.

They are seeking wide-ranging relief. They want certain sections of the Sexual Offences Act and the Criminal Law Amendment Act (Sexual Offences and Related Matters) to be scrapped.

They further seek an order against the National Director of Public Prosecutions (NDPP) to withdraw all charges and criminal proceedings brought in terms of these impugned provisions, release anyone serving sentences and expunge criminal records.

The respondents, the Minister and Director-General of Constitutional Development, the NDPP, and the City of Cape Town have all filed notices of opposition but have yet to file papers.

SWEAT stated: “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 marginalised 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.”

In 2002, the Constitutional Court ruled by a majority against the decriminalisation of sex work in a case referred to as the Jordan case. But SWEAT, which was an amicus curiae (friend of the court) in that matter, says this is a different case being brought on different grounds. And it’s being brought in different times with material societal changes.

Proud of their work

In her affidavit, SWEAT director Emily Craven, said the identities of the sex workers involved in the case were being withheld.

“The details they give are sensitive and personal. Many involve descriptions of sexual assault and harassment and feelings of shame or being shamed as a result of their occupation. They wish to protect themselves and their families from these details being made public and from the considerable stigma that attaches to sex work generally.

“They have also put themselves at risk of prosecution.

“Many have been the subject of repeated harassment by police; they fear further harassment.”

Craven said SH (and those supporting her) wish to bring an end to the discrimination, harassment and lack of protection due to the criminalisation of their trade.

She said it was estimated in 2015 (the latest available research) that there were between 131,000 and 182,000 adult female sex workers in South Africa. This number did not account for adult male or transgender or non-binary sex workers.

“Sex work forms part of the informal sector, it is an economic necessity for some. It is not the norm for them to have a pimp, or to work in a brothel. The majority support between three and nine people. When comparing full-time sex workers income with data from Statistics South Africa on monthly earnings, sex workers are earning more than clerks, sales and services, crafts and related trades and up to six times more than domestic workers.”

Craven said most said that sex work was their sole income and they were unable to find other work.

One, JM, said she became a sex worker to pay for transport to get to college. After she graduated she could not find work so she continued.

“Her repeated arrests appear to have prevented her from obtaining the police clearance certificate she would need to get a job,” Craven said.

Another, NV, said she became a sex worker because she could make more money than waitressing.

Many said they were proud to be able to support themselves and their families. Others said they were conflicted “but all were emphatic that they wish to be able to engage in sex work lawfully without the threat of criminal sanction”.

Rational and constitutional

Craven said to be rational and constitutional, laws must be underpinned by a rational government purpose “otherwise they are arbitrary and violate the rule of law and the protection against arbitrary arrest and detention”.

It was submitted in the application that there was presently no legitimate purpose underpinning the laws because they were not used to prosecute sex workers to finality.

“The supporting affidavits show that in almost all instances, sex workers are arrested and or detained but not formally charged. In some instances they are required to pay an amount in order to be released, often in the nature of a bribe or gratification to arresting officers. They say they are also forced to perform sexual acts with SAPS officials in order to be released.”

Attempts by SWEAT lawyers Bowman Gilfillan to obtain statistics regarding the number of people arrested or detained under the provisions had been unsuccessful. SAPS and the NPA had not been able to provide any.

“It seems they are not genuinely used or relied upon to charge and prosecute sex workers to finality. This shows there is no continuing legitimate purpose served by keeping those offences on the books,” Craven said.

“Moreover [the laws] have not deterred or stopped the selling or buying of sex or sexual service and are not rationally capable of doing so. They merely create greater stigma and vulnerability among sex workers and violate their rights.”

In 2022, a Bill to repeal the criminalisation, had been published for comment. But it was later withdrawn and its fate was unclear.

Outdated views

Craven said policy reasons for the criminalisation of sex work were outdated and based on research and reasoning no longer applicable.

Previous concerns related to public health, that it would contribute to the spread of HIV/AIDS and STDs, that it encouraged trafficking of women and children, that it led to further crimes and it created a public nuisance.

Craven said public health was better served by decriminalisation. While transnational crime was a real threat, the majority of sex workers do not operate from brothels or have “pimps” but are self-employed.

She said public nuisance can be dealt with through the regulation of sex work. It did not justify a complete ban.

“Upholding our constitutional challenge will not result in sex work being immediately available on any basis. For example, we do not in these proceedings challenge the provisions that criminalise the keeping or operation of a brothel.”

Craven said the provisions were not only ineffective and irrational, they were “actively harmful”.

“The lived experience of sex workers convincingly demonstrates that they perpetuate the stigmatisation, increase the risk of violence, expose them to bullying, harassment and predation by their clients, their communities and the police.

“Adult sex workers should be free to choose to engage in their practice for as long as they do so voluntarily and without exploitation and abuse.”

SH, in her affidavit, said the life of a sex worker was not an easy one but it was made infinitely more difficult by the criminalisation of sex work.

“Law enforcement officers take advantage of me and refuse to protect me or to give me the tools I need to protect myself in an already dangerous profession,” she said.

Craven said if the impugned provisions were found to be unconstitutional, they must be declared invalid. They should also be set aside with retrospective effect to the date of their enactment, 16 December 2007.

SH and SWEAT initially cited the City of Cape Town as one of the parties in respect of bylaws but, following representations from City officials, that matter has been separated and will only proceed, if necessary, after the national legislation challenge.

Written by Tania Broughton for GroundUp and republished with permission. The original article can be found here.

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