Sex for sale: The socio-economic determinants informing law reform in South Africa

by | Sep 9, 2025 | SACJ, SACJ V38 I1 2025

ARTICLE

Sex for sale: The socio-economic determinants informing law reform in South Africa

Authors: DM Clark & Nina Mollema

ISSN: 1996-2118
Affiliations: BLC LLB LLM (UP) BCom Hons (UCT) LLD (Unisa). Senior Researcher, South African Law Reform Commission; MA (Vista) DLitt et Phil (Unisa) LLM LLD (Unisa); Associate Professor, University of South Africa
Source: South African Journal of Criminal Justice, Volume 38 Issue 1, p. 1-34

Abstract

Prostitution is currently criminalised in South Africa. This article argues that the policy and the law regulating prostitution and prevailing socio-economic determinants are inextricably linked. For this reason, these socio-economic determinants and the proposed solutions to the interaction between poverty, inequality and unemployment must be considered before considering law reform on prostitution in South Africa. Furthermore, when drafting legislation that regulates sensitive areas of morality, such as prostitution, the underlying question, in keeping with international jurisprudence, is not why morality is being legislated for, but which interpretation or understanding of morality should be used to inform legislative reform. It is contended that the chosen legal framework is a policy choice which must be informed by available evidence and rational analysis, as opposed to political ideology.
The article establishes the need for legislative and policy reform in respect of the exchange of sexual acts for reward and, by implication, peripheral crimes in South Africa, and argues that a radical feminist approach in favour of asymmetrical decriminalisation is the preferred legal pathway. It seeks to do so by identifying the context and the socio-economic determinants at work in South Africa and how the country’s unique context intersects with the chosen policy and legal framework.

The normative message of criminal law in the context of sex work

by | Sep 9, 2025 | SACJ, SACJ V38 I1 2025

ARTICLE

The normative message of criminal law in the context of sex work

Authors: Marna Lourens & Sonia Human

ISSN: 1996-2118
Affiliations: BLC (Law) LLB (UP) LLM (cum laude) LLD (Stell); Project Manager and Researcher: Centre for Social Justice, Faculty of Law, Stellenbosch University, Admitted Attorney; BMil LLB (Stell) LLM (Unisa) LLD (Stell); Professor, Department of Private Law, Faculty of Law, Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 38 Issue 1, p. 35-66

Abstract

In South Africa, sex work is fully criminalised, making both the sale and purchase of sex a criminal offence. Under this legal framework, sex workers – one of society’s most marginalised groups – face widespread human rights violations, including violence from clients and law enforcement, as well as restricted access to legal and healthcare services. Punitive laws, shaped by rigid gender norms and social expectations, reinforce their exclusion from constitutional protection. As a result, sex workers remain in a precarious position, unable to assert their rights or improve their socio-economic conditions.
Considering sex workers’ experiences with the law – and based on the observation by the British socio-legal scholar, Jane Scoular, that law is an inseparable dimension of social relations – this article questions whether criminalisation is the solution that is best aligned with constitutional values. The aim is to raise arguments in favour of an interpretation of sex work that goes beyond punishment and retribution.

The need for enhanced protection of child complainants and witnesses in South Africa: What does the Nordic Barnahus model offer?

by | Sep 9, 2025 | SACJ, SACJ V38 I1 2025

ARTICLE

The need for enhanced protection of child complainants and witnesses in South Africa: What does the Nordic Barnahus model offer?

Author: Delecia Beyers

ISSN: 1996-2118
Affiliations: LLB LLM PhD (UWC); Lecturer, Department of Criminal Justice and Procedure, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 38 Issue 1, p. 67-93

Abstract

Children come into contact with the law and court proceedings in different ways. A child may be a victim, witness or even an accused in a legal matter, and thereby become subjected to legal proceedings. During such proceedings, the fundamental rights of the child will undoubtedly be affected. A child’s right to dignity, the right to participate and the constitutionally enshrined best interests of a child are some of the rights which are generally affected when they become subjects of the South African criminal justice system. Sadly, children are not spared from witnessing crime in South Africa, the high levels of serious, violent crime in South Africa, unfortunately mean that many children witness crime first-hand. This is especially true in indigent communities. Children are not shielded from witnessing crime and they are often also victims of crime. The low prosecution rates negatively affect communities’ faith in the justice system. As a result, children in indigent communities are influenced by adults to abhor and distrust the machinery of the criminal justice system. Crime can therefore flourish in these conditions. Child witnesses would routinely be hesitant or even reluctant to participate in criminal justice proceedings. The cycle of crime can therefore persist. This article will analyse the current legislative protection of child complainants and witnesses in South Africa and assess how some elements of the Nordic Barnahus Model could enhance such protection.

Appeal at your own risk: the power of an appellate court to enhance a sentence on appeal in Botswana

by | Sep 9, 2025 | SACJ, SACJ V38 I1 2025

ARTICLE

Appeal at your own risk: the power of an appellate court to enhance a sentence on appeal in Botswana

Authors: Baboki Jonathan Dambe & Olebile Daphney Muzila

ISSN: 1996-2118
Affiliations: LLB (Botswana) LLM (Edinburgh); Lecturer of Law, Department of Law, University of Botswana; LLB, LLM (Botswana); Attorney at Law, Botswana
Source: South African Journal of Criminal Justice, Volume 38 Issue 1, p. 94-113

Abstract

The right of an accused person to appeal their conviction and sentence to a superior court is an indispensable component of due process and an extension of the right to a fair trial. Principally, an accused person appeals with the hope that the appellate court will reach a more favourable decision than that of the trial court. However, an appeal presents the inherent risk that the appellate court may enhance both the sentence and the conviction. This paper assesses the powers of the High Court and the Court of Appeal of Botswana to enhance the conviction and sentence when dealing with an appeal. The circumstances under which this power is exercised and the factors that are taken into account by the appellate courts are examined. The paper highlights that the appellate courts retain the discretion to enhance a sentence even when the accused person ultimately attempts to withdraw their appeal. The authors interrogate the propriety of the appellate court’s discretion to decline an application by an accused person to withdraw their appeal. The paper juxtaposes the aforesaid power with that of appellate courts in South Africa to enhance sentences imposed by the trial court.

Reconsidering criminal liability for encouraging suicide in South African law through the lens of Commonwealth v Carter

by | Sep 9, 2025 | SACJ, SACJ V38 I1 2025

ARTICLE

Reconsidering criminal liability for encouraging suicide in South African law through the lens of Commonwealth v Carter

Author: Dr Jacques Matthee

ISSN: 1996-2118
Affiliations: LLB, LLM, LLD. Senior lecturer in law, University of the Free State
Source: South African Journal of Criminal Justice, Volume 38 Issue 1, p. 114-133

Abstract

In 2017, Michelle Carter was convicted of involuntary manslaughter in the United States for encouraging her boyfriend, Conrad Roy, to die by suicide, despite being nowhere near the scene at the time of his death. Her conviction, based primarily on text messages and phone calls, raises complex legal questions about causation, culpability, and the limits of criminal liability for speech alone. This article reconsiders criminal liability for encouraging suicide in South Africa through the lens of the Carter case to assess whether a similar outcome could be reached under South African law. While South African courts have addressed assisted suicide and supplying the means for suicide, the legal position on verbal encouragement, particularly through digital communication, remains underdeveloped. The only relevant precedent, Ex parte Minister van Justisie: In re S v Grotjohn, offers limited guidance, having been decided decades before the advent of phenomena such as social media and cyberbullying. This article argues that the Carter case invites a critical re-evaluation of South Africa’s legal principles to address the unique harms of virtual suicide encouragement. It identifies legal gaps and advocates for developing a tailored causation approach standard and statutory reforms to better protect vulnerable individuals from psychological manipulation while upholding fundamental principles of justice.