The National Prosecuting Authority (NPA) in South Africa has issued a directive to prosecutors, instructing them not to enroll new cases related to sex work, pending the outcome of a court case challenging the criminalization of sex work. This move comes after years of consultations and a draft bill to decriminalize sex work, which was withdrawn in 2023 to be redrafted.
The Sex Workers Education and Advocacy Taskforce (SWEAT) 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 in October last year. The Western Cape High Court recently ruled that dozens of organizations could join the court case as friends of the court or respondents opposing the application.
As a result, the NPA has stopped prosecutions, with prosecutors instructed not to enroll new cases under the relevant sections of the Sexual Offences Act and the Criminal Law (Sexual Offences and Related Matters) Amendment Act. Existing cases will have charges withdrawn, and those where the accused has already pleaded will be postponed pending the court’s ruling.
If sex workers are arrested during this period, charges will not be enrolled by prosecutors, and existing enrolled matters will be either withdrawn or held in abeyance until the court makes its ruling. The NPA spokesperson, Mthunzi Mhaga, stated that this approach reflects the current legal trajectory and the constitutional obligations on the NPA to act in accordance with evolving jurisprudence and human rights considerations.
SWEAT has welcomed the moratorium, calling it a “massive achievement” for the sex worker rights movement. However, the organization has expressed concern that arrests may continue, despite the moratorium on prosecutions. In August, sex workers were still arrested in Cape Town, although charges were later withdrawn. SWEAT is now calling on the Minister of Police to agree to a moratorium on arrests of sex workers pending the outcome of the litigation.
The City of Cape Town’s law enforcement spokesperson, Wayne Dyason, stated that the City’s law enforcement does not execute arrests for prostitution but may issue fines for solicitation. The South African Police Service (SAPS) did not respond to a request for comment on whether they would continue to arrest sex workers. The court case is ongoing, and the outcome will have significant implications for the criminalization of sex work in South Africa.
