Two steps forward, one step back: Defending the immediate decriminalisation of sex work

South Africa stands at a decisive moment in the reform of sex work. Litigation challenging the criminalisation of sex work is currently before the Western Cape High Court, which the Minister of Justice has elected not to oppose. In parliament, a revised amendment bill is in progress. The question is no longer whether reform will come, but what form it will take. This article examines two competing approaches to decriminalisation. The one-step approach insists that decriminalisation and regulation must arrive simultaneously – a position that will keep sex workers criminalised while lawmakers wait for a regulatory framework that may never arrive. The two-step approach, by contrast, prioritises the immediate removal of criminal sanctions, with targeted regulation to follow. This article argues that the two-step approach is both legally sound and constitutionally required. The article further argues that the feared regulatory void is a myth. Existing law – including labour protections and anti-trafficking legislation – already addresses the perceived gaps. Sex work specific bylaws become automatically inoperative upon decriminalisation, and general bylaws targeting sex workers through loitering and public nuisance provisions are unconstitutional in their application. Properly understood, the decriminalisation of sex work is, at its core, a gender-based violence issue. Delay is itself a harm.