I wonder what ANC MP George Lekgetho made of weekend reports that a sex worker was challenging the fairness of her dismissal by her employer in the Labour Court.
Lekgetho rightly got into serious trouble for his sexist statement last week that prostitution should be legalised for the 2010 World Cup because “that would make it [the tournament] a success, because we hear of many rapes because people don’t have access to them, women”.
So would he have agreed with a decision by the CCMA at the end of 2006 that “Kylie” (as the sex worker was dubbed) could not claim protection from unfair dismissal under the Labour Relations Act and that the CCMA therefore had no jurisdiction to hear the case against Kylie’s employer? It’s not clear where a sexist who nevertheless favours decriminalisation of sex work would stand on such a question.
In any event, “Kylie” is appealing the decision by the CCMA, which argued that the employment contract between “Kylie” and the massage parlour where she worked was an illegal contract in terms of common law, as the work she was required to do was criminalised by the Sexual Offences Act. This meant that the LRA could not apply to her because:
“Given the status of the common law on the enforceability of illegal contracts, be they employment contracts or otherwise (it is trite that the employment contract forms the basis of the employment relationship between the parties), and the fact that the applicant was employed to perform illegal work and did; should the CCMA resolve such disputes it would then place itself in a position where it would be making policy decisions for the legislature.”
Furthermore, the CCMA commissioner argued that although sex workers were not explicitly excluded from protection by the LRA, this could not mean that they were included either, because it would mean that any person paid by another to undertake an activity that was criminalised would be able to access the protection of the LRA. What about an assassin contracted to kill another person and who is then not paid for the job — could such a person go to the CCMA to complain?
I am, of course, not neutral in this debate as I strongly believe in at least the decriminalisation of sex work. This is needed — as the minority of the Constitutional Court pointed out in the Jordan case — because the criminalisation of sex work is closely tied to patriarchal views in our society about women’s sexuality.
The criminalisation of sex work unfairly discriminates against women because they are mostly those arrested and harassed for offering their sexual services to men who, in turn, are mostly not similarly pursued. This infringes on the human dignity of sex workers and, I would argue, all women, because it suggests that those making the laws believe that it is acceptable to have a different standard by which the law measures male and female sexuality.
Besides, this kind of legal marginalisation — based on the moral views of some in our society — should have no place in a constitutional state based on the respect for diversity and difference.
But even if sex work remains criminalised, there are good constitutional reasons why the CCMA commissioner got it wrong. Most notably, section 23 of the Constitution guarantees for everyone a right to fair labour practice while section 39(2) requires any tribunal when it interprets legislation to take into account the “spirit, purport and objects” of the Bill of Rights.
This means that any tribunal called upon to interpret the definition of “employee” in the LRA is constitutionally required to do so with reference to the section 23 guarantee that everyone is entitled to fair labour practice. What is paramount here is the Constitution, not the common law.
I would contend that the commissioner’s reasoning was flawed because it failed to take account of the new constitutional framework within which law must be interpreted. Rather than hiding behind the common law, the commissioner should have interpreted the LRA in an expansive manner to ensure that sex workers who are exploited by their employers are also protected by labour law.
The failure by the CCMA commissioner to do this suggests a larger failure of commissioners and judicial officers to come to grips with the transformative power of the Constitution. Instead of giving effect to section 39(2), such commissioners and judicial officers often still fetishise the common law and fail to accept that the common law is now subject and subordinate to the Constitution and specifically to the values enshrined in the Bill of Rights.
While it is therefore correct to say that the common law prevents the enforcement of illegal contracts, I would argue that as far as the protection of vulnerable groups such as sex workers are concerned, the Bill of Rights now requires us to jettison this principle of the common law. Instead, it requires an expansive interpretation of the definition of an employer in the LRA to include protection for vulnerable groups like sex workers who harm no one when they engage in the illegal activity of prostitution.
Unlike assassins, say, who should be excluded from LRA protection because they are infringing on the fundamental rights of third-party victims, sex workers should be protected exactly because they are not harming anyone or infringing on the fundamental rights of anyone in society, and they are being punished because of the moral prejudices of the majority of South Africans.
This might sound radical to some, but then section 39(2) requires a radical rethink of traditional common-law principles because judicial officers must now give effect to the fundamental principle that where at all possible, the inherent human dignity of everyone living in South Africa should be respected and protected. This is the kind of transformation that many lawyers (of all races) who are, after all, inherently conservative find scary. But it is the transformation that the Constitution requires of us.
Perhaps it is not the kind of transformation that our sexist ANC MP George Lekgetho had in mind either. But maybe, just maybe, he would come to agree with my argument.
If men buy sex then they are buying illegal goods and so should be charged with a more serious offence than that of the female sex worker.
Either that or legalise the trade but I take peoples point that the human trafic trade would be that much harder to control.
Proffessor Vos, we must disagree with you on this one. Sex work in itself is exploitative of women and degrades them in the worst possible kind. Arguably,most sex-workers are involved in this trade because of dire social circumstances. It does not take a genious to knoe that most of them would rather be doing something else. It is grossly unfair that they are subjected to physical violence (by police, pimps and their clients) as well verbal and psychological violence (from society). This problem will not be alliviated by the legalisation of this trade but (most probably) would be exarcebated by it. Despite the enormous amount of violence these people suffer, one may rightly say that the fact that the trade is regulated/prohibited by the law means that these people are infact spared some trauma. Legalising prostitution will not spare sex workers violence/exploitation etc. Why don’t we, instead, advocate for the education of such people, and many others who are exploited, so that people don’t have to be so vulnerable to this violence-so that they have broader career choices etc.
It takes two to have sex (at least in normal situations). For that reason, you are right, prof, when you say the criminality behind so-called sex work should encompass both the service provider AND the client.
On another note, does EVERYTHING that can be transacted in money necessarily constitute work? Who informs legal minds that a specific action is criminal or otherwise? Isn’t it the mores and values that are upheld in society, the root of these being the moral underpinnings of all peoples based on true but empirically improvable assertion that man is answerable to God?
Having said that, if the reason for decriminalising prostitution (“sex work” is a term coined to make this activity sound more and more socially acceptable when it actually isn’t and shouldn’t be) is merely that the prostitute has not harmed anyone (i.e. nobody has died in the transaction), does that remove the legal and moral responsibility for the psychological, sexual, and social damage to the prostitute herself, and then to her client, for engaging in sexual activity with a person other than a legally married partner?
Despite the dysfunctionality that sometimes rears its ugly head in some marriages, many studies have shown that the BEST adjusted individuals in ANY society are those who confine their sexual activity STRICTLY to the confines of a legal marriage. The task of making sure one doesn’t marry a weirdo still lies with the one who will be married. Legal people cannot use the fact of bad choices of marital partners as an excuse to promote the decriminalisation of prostitution.
I disagree with Owen profoundly. It is precisely the illegal status of sex work that allows traffickers to exploit women — who cannot turn to the state for protection since they are engaged in illegal work. Taking sex work out of the hands of criminal gangs is the best way to tackle human trafficking.
Great article and on the nail! It is our moral prejudice alone that prevents sex workers being seen as legitimate members of society. It is not called the world’s oldest profession for nothing; it is a comment on who and what we are that we don’t want to face and are desperately trying to run away from at their expense. Another great example of humans conveniently thinking that we are made of greater stuff than we really are.
it’s one thing to decriminalise; another to enforce the decriminalisation and the attitudes of police, courts, and society. this of course doesn’t mean it shouldn’t be done, but a reminder that decriminalisation isn’t the total answer; just like with repealing other racist and sexist laws, change truly comes with manpower and attitude adjustment and takes time.
i’m inclined to believe common law won out in this case because of prejudice and not a committment to justice.
You are so right.
There is no legal reason to discriminate against people who do sex work. In fact, we legally need to protect the people who do it. Prostitutes do not have sex for fun, they do it because that is the one way in which they can earn money for their families.
I work for money, why should any else not have the same protection as I have?
Very good article! Thanks
George is right. this is called the oldest profession and the members in mafikeng had the very same law makers as clients. They refered to them as the Nicodemus, other frequented a residence called lost city at Unibo.
The country is having a serious outbreak in the economically active sector. look at many taxi ranks and you see many young girls who curry favour with drivers for a quick buck, is that not prostitution by another name?
Health wise ,revenue wise and tourism wise we would not have Sir Alex Ferguson apprehensive when Man United have to visit these shores.
The comment by M&M that all sex work is exploitative seems to me to be based on nothing more than personal beliefs that selling sex is abhorrent. While I do not doubt that many a sex worker is in the trade out of desperation, I suspect that a number aren’t. Our bodies belong to us and we should be entitled to do with them what we wish provided that it does not infringe on the rights of another. The only way to protect sex workers from violence, pimps etc. is to legalise prostitution, decriminalising does not go far enough.
I don’t think your view is at all radical. I think you have succeeded in putting it more logically than anybody has been able to express it yet.
I also don’t think the poor MP who has been so ridiculed over what he said was so wrong. I think his only problem was having to express himself in a language that is not his own and having his logic severley compromised by his cultural upbringing. I think people need to learn to be more tolerant of this sort of thing especially when it’s clear that the person concerned is trying to see the way through the smoke-screen created by their culture.
Eduard, have a look at the United Nations Office on Drugs and Crime: Trafficking in Persons: Global Patterns Report 2006. It appears to be no coincidence that those countries that have either legalised/decriminalised or tolerate prostitution are listed as high or very high receivers of trafficked persons.
Legalisation provides a facade behind which organised criminal networks can operate with virtual impunity. The ability of police to enter, search and interview witness in this kind of regime is severely curtailed.
Remember one is dealing with a combination of criminal/mafia type groupings – and no-one testifies against organised crime (remember Ulianitski anyone?); buyers wanting anonymity (80% are married or have partners) and very vulnerable women/girls.
All parties concede that the illegal sex trade is out of control in Australia where prostitution has been legalised in Victoria and decriminalised in NSW. A survey conducted by the Adult Business Association of NSW alleged that illegal premises operating outnumbered legal premises by 4 to 1. The survey was conducted as a result of fears of being undercut by the skyrocketing illegals, many of which used women brought in from Thailand, Korea and China.
Ironically, the few convictions for trafficking have been of holders of legal brothel licences. The legal holders also owned illegal brothels and would circulate the girls between them.
Most people would be aware by now, I guess, that the Netherlands, where prostitution was legalised in 2000, is more or less embarking on a reversal of this policy. Brothel windows are being replaced by upmarket boutiques and a raft of new restrictive measures are being brought in.
Legalisation/decriminalisation is a seductive fantasy but it just does not work. It rather seems to amplify all the problems associated with prostitution and not reduce them. Robyn
What some of the educated derelicts on this blog don’t seem to understand is that there are many prostitutes who actually take their profession seriously and actually do enjoy their work.
These woman support families, pay for school fees, support unemployed family members and actually pay for technikon and varsity fees to further their lives by selling sex … yes SEX.
Some even want to do the right thing and pay tax, but the State does not recognise their profession and can’t accept their money.
Since when is sex an evil or immoral thing? Every day the media bombards us with the most macabre images of victims or crime, starving populations and casualties of war for huge profits under the old adage, ‘If it bleeds, it reads!’. This exploitation of humans (us readers) is in my opinion worse than two consenting adults simply having sex (something totally natural to post pubescent human behaviour)
Have any ‘real’ reporters actually taken the time to study this sector in depth and actually interviewed any of the working ladies or owners of escort agencies regularly visited by many of our city’s workforce, elite and rich and famous?
The answer is NO!
Think for a minute …
- Adult Movies are now legal.
- Strip Clubs are now legal.
- Gambling is now legal.
- Interracial marriages and relationships are now legal.
- Shebeens are now legal.
- Abortions are now legal.
- Satanism is now Legal.
- Civil Unions among homosexuals are now legal.
What’s the big deal with sex between two consenting adults for money? I’ve been on many dates where I have had to fork out heaps of cash on movies, club entry fees, dinner and drinks to court a lady, with the eventual result of sex and a new friendship with someone who turned out not to be my type anyway. I am sure most modern men will resonate with me that there isn’t really much difference in the whole modern darting scene and hiring a prostitute if one breaks it down to the nuts a bolts. At least with encounters with prostitutes, there are no strings attached, no difficult break-ups and we both have mutual benefits according to our specific needs.
In the past the old government discouraged and outlawed prostitution for two fundamental reasons. First, they wanted to discourage white men from being tempted to have sex with predominantly black and coloured woman applying the trade at the time, because it was ‘verkeerd’. The second, more deeply routed reason was the NG Kerk’s cosy partnership with the State in setting our so-called moral standards. The same guys who preached God-sanctioned apartheid on Sundays, while their congregation fiddled with the maids after dark.
If sex with prostitutes is claimed to give rise to rape, why have no owners of strip clubs or adult stores been arrested for rape. Yet, how many church leaders have been arrested for molesting young boys?
Instead of reporting from some hypothetical parabola, based on assumptions and presumptions, why doesn’t the fifth estate (press) do us all a favour and liberate SA by overcommnig this last hurdle of our shameful prejudice.
These two statements just baffle me:
· `… because we hear of many rapes because people don’t have access to them, women,” is George Lekgetho (ANC) referring to the women or the practise as a commodity? I won’t even comment on the rape part!
· “You cannot attach a price to the deepest union between a man and a woman and link it to our tax base,” maybe Sydney Opperman (DA) forgot that the topic in dispute was legalising sex-work for 2010, not marriage or boyfriend/girlfriend relationship!
It is funny how politicians usually make the mistake of commenting on complex issues they have minimal insight on, they should try consulting with official office bearers who have expertise on these matters or act like celebrities in such situations by sticking to `no comment`, it would save them a great deal of embarrassment.
Now the topic on discussion, I also think decriminalising sex work would prohibit physical violence (by police, pimps and their clients), by law they will be protected, unlike now, if they are beaten by a client – the client will walk free, the worker will go to jail all bruised up with nothing and the pimp will run with the commission (if the service was pre-paid).
Society just has to get off its high horse because most actually use the service, there would have never been a supply if there was no demand!
I support Christopher Gololo (ANC) when he said the matter should be “thrown to the public” to debate.
I strongly disagree with those who argue that sex work should be criminalised because it is exploitative of women and degrades them in the worst possible way. If we would follow this logic in any capitalist country it would mean that we would also have to criminalise and lock up woman who raise their husband’s or partner’s children for no or very little pay and cook their husband’s or partner’s food and clean their joint house; we would also have to lock up chars who travel far every morning to clean the toilets, wash the underpants and scrub the floors of rich people. It is unfathomable that we would do that because the latter jobs do not include sex. Those who support the criminalisation of sex work can only do so because – under the influence of a kind of religious morality – they view sex as something dirty and distasteful, especially if freely engaged in by woman. It is based on the idea that woman should be punished for “tempting men”.
Here are some more of my thoughts on the subject.
I sell my brains and body to my employer every day. Are they my clients or Johns?
I am forced to use my brain and body to pay the South African Revenue Service for the first 3 hours of each day I work. Are they my pimps?
Prostitution is no different than most of our professions!! How ironic that it’s fine to destroy our minds and bodies down a mine, slaving on a farm, in a call centre, sweeping the streets or in a whole host of platonic prostitutions.
My question is: Who here doesn’t support the sex industry?
Every time we buy goods and services advertised with some sexy chick or hunk in the media we acknowledge that sex for sale makes us feel good, and that we WANT whatever is associated with it. Basically we all want sex, and will part money for it. [some consciously and some subconsciously].
If we pay a woman for sex and film it, it is called Porn!!! (which is legal in SA under the Film and Publications Act), but when we pay a woman for sex and don’t film it we are criminally charged and named and shamed as ‘Sex Offenders’ under the new Sexual Offences Act.
Here is a thought for further debate. If the Film and Publications Board authorises the selling of sex in Porn, they are effectively advocating prostitution and are in effect accomplices in a crime. After all, the porn stars were paid to have sex, weren’t they?
I totally agree with the Professor if I hear him advocating the legalzation of so-called “prostitution”, namely the profession of sex workers. I find it quite inconceivable that in our so-called most advanced, human-rights based Constitution, the rights of women are being abused by criminalization of sex workers.
This may sound hefty and shouting from a soap box but it is a proven fact that prohibition of what some in society regard as reprehesible, immoral and even damnable, never works. Prohibition in pre WW2 US regarding the sale of liquor did not work. It only led to an escalation in levels of crime fed by greed and violent turf battles between bootleggers and sleezy places where consumjptionm in any case flourished.
One can add also a very surprising statement of fact. It was none other than the grand apostle of the free market, Milton Friedman, who made the comment that Nixon’s prohibition of drugs would become counter productive and cause more social harm than treating the problem on its social merits / de-merits, if not as a medical or clinical problem.
I also would advocate that not only sex work be decriminalized, but that standards and stipualtions be set through legislation, preferably as adjunct of the Liquor Act, to legalize the running of Escort Agencies. What goes on on the dance floor is not “prostitution”. The ladies / men are there to entertain. But if there is a consensual agreeement they can go off premises as stipulated in the Liquor Act and behind closed doors do whatever two consensual people would of could do. Its a private matter.
It is actually a crying shame that there are such stupid politicians around as the one in question, who belittle the issue and trample human rights sensitivites through sheer thoughtlessness.
People who so easily slam around with words like “it is degrading for men and the women” to be “whores”, i.e. involved in consensual sex where a price is paid, could better think of what the US looked like under prohibition of liquor earlier on, probition of even soft drugs today.
To a large extent the trafficking of young women takes place purely on the grounds that the market for female / male sex entertainment is criminalized. It’s the women, indeed who are the sacrificial lambs for moral hypocrisy of those so eager to point fingers.
I would like to understand the situation in countries where sex work is legalised, yet there is an increase in human trafficking. Could it be that the increase is not BECAUSE of the legalisation, but DESPITE it?
The countries quoted, e.g. Netherlands & Australia, don´t exist in a vacuum: they are economic meccas, more so now than ever when historical processes (EU enlargement and globalisation) make them more accessible.