Opening remarks by the Hon AC Nel, MP, Deputy Minister of Justice and Constitutional Development at a Workshop on the Decriminalisation and Regulation of Sex Work Bill held at the Auditorium of the Department of Justice and Constitutional Development in Tshwane
Good morning, and a very warm welcome to everyone joining us today and I convey the warm regards of Minister Mmamoloko Kubayi, the Minister of Justice and Constitutional Development.
Before we begin with our formal programme and the important deliberations ahead, I would like to invite all of us to rise—physically or in spirit—to recite the Preamble to our Constitution:
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to -
- Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
- Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
- Improve the quality of life of all citizens and free the potential of each person; and
- Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
The Preamble reminds us of our collective responsibility to heal the divisions of the past and to build a society rooted in democratic values, social justice, and fundamental human rights.
I want to pause here—especially when we speak about human rights.
Our Constitution does not say that some people are more entitled, or less entitled, to human rights than others.
Human rights are not a brand of beer that comes in “Lite”, “Standard”, or “Deluxe” packages. They are universal, indivisible, and equal for all.
Yes, rights may be limited where reasonable and justifiable in an open and democratic society.
But this does not mean that some individuals are less deserving of protection, dignity, or recognition.
The Constitution guarantees the human rights of everyone—and, in specific instances, the rights of citizens in particular.
Human Rights and Sex Work
When we discuss human rights in the context of sex work, we must reflect on rights such as:
- Equality (section 9)
- Human dignity (section 10)
- Freedom and security of the person (section 12)
- Privacy (section 14)
- Freedom of trade (section 22)
- Labour relations (section 23)
- Access to health care (section 27)
The State is constitutionally obliged to promote human dignity, equality, and the advancement of rights and freedoms.
It must also recognise both individual and collective rights and responsibilities to ensure the well-being of all people.
Historical Developments on the Issue of Sex Work
The question of an appropriate legislative framework for sex work in South Africa has a long and difficult history.
In 2015, the South African Law Reform Commission submitted its Report on sex work to the Minister of Justice and Correctional Services—after extensive consultations.
The Report recommended retaining the model of total criminalisation, with an option of diversion.
An alternative—though not preferred—was partial decriminalisation for certain offences related to sex workers.
Cabinet noted the Report in 2017, but did not take a decision between the proposed options.
The Department was tasked with returning to Cabinet once further work was completed.
In 2023, the Criminal Law (Sexual Offences and Related Matters) Amendment Bill was prepared, seeking to repeal the Sexual Offences Act of 1957 and section 11 of the 2007 Act insofar as they criminalise sex work.
This development was aligned with Pillar 3 of the National Strategic Plan on Gender-Based Violence and Femicide, which called for fast-tracking the legislative process toward decriminalisation.
It reflected a clear view:
The continued criminalisation of sex work contributes to GBVF by leaving sex workers vulnerable, unprotected, and often afraid to seek help from the state.
However, the Office of the Chief State Law Advisor raised constitutional concerns and advised that the Bill incorporate a regulatory framework to ensure compliance.
Senior Counsel confirmed this position.
As a result, the Bill could not proceed in its original form. It required revision to include both policy direction and regulation of the sex work industry.
The Current Process
Following this, the Department renewed efforts to develop a comprehensive legal framework aimed at both decriminalising and regulating sex work.
The anticipated legal framework intends to:
- Promote the safety of sex workers
- Reduce stigma
- Protect human rights
- Prevent and combat trafficking in persons
- Promote public health
- Empower sex workers to advocate for their rights
- Improve working conditions, and
- Balance the interests of broader society
During 2024, consultations continued, but key policy issues emerged—requiring deeper engagement with relevant government stakeholders before finalisation.
Purpose of This Workshop
Over today and tomorrow, our task is to identify legislative gaps and consider the practical challenges faced by sex workers and all stakeholders.
We need to build a regulatory framework that:
- Ensures safe and healthy working conditions
- Protects rights
- Aligns with constitutional values, and
- Reflects the responsibilities of the various Departments that will play a role in implementation
Key policy issues requiring discussion include:
1. Labour Rights
Questions include:
- Should sex workers be classified as employees under the Labour Relations Act?
- Would this entitle them to fair labour practices, protection from unfair dismissal, and social security benefits?
- Should minimum wage standards apply?
- Should sex workers have the right to unionise?
2. Access to Support Services
We must consider:
- funding for counselling, legal aid, and psychosocial services
- whether and how the legislation should provide support for sex workers wishing to exit the industry
3. Access to Health Care
We must identify required services and plan how to eliminate stigma within health care systems.
4. Role of Municipalities
Local authorities may need to enact by-laws.
We must decide whether a standard national template is appropriate, or whether localised by-laws should be developed.
5. Licensing and Operating Certificates
A transparent, fair, and efficient licensing process must be considered.
6. Establishing a Regulatory Body
We must assess:
- whether an independent or government body is feasible
- resource implications
- enforcement powers and oversight mechanisms
7. Immigration Considerations
We must ensure South Africa does not become a destination for sex tourism, while protecting vulnerable individuals.
8. Law Enforcement
Questions include:
- Should sex work enforcement be handled by specialised units or by general law enforcement?
- How do we ensure SAPS receives training that removes stigma and improves service delivery?
9. Departmental Responsibility
Which Department should administer the future Act?
Options include:
- Social Development
- Justice and Constitutional Development
- Trade, Industry and Competition
- Employment and Labour
These discussions are essential. We are pleased to have colleagues from numerous Departments, as well as partners such as SARS and SALGA, to guide us.
Conclusion
Regulating sex work is a complex and sensitive issue requiring thoughtful and informed engagement.
People hold a wide range of opinions—often strongly.
But our responsibility is clear:
To develop a legal framework that prioritises safety, dignity, and the rights of all persons in the sex work industry, while protecting the well-being of society as a whole.
Let us move forward responsibly.
Let us find a way to regulate the sex work industry—upholding rights and safety, building sound institutions, and advancing our constitutional commitments.
We thank you.
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