Teddy Bear Clinic for the Abused Children and Another v Minister of Justice and Constitutional Development and Another (73300/10) [2013] ZAGPPHC 1 (4 January 2013)

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[2013] ZAGPPHC 1
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Teddy Bear Clinic for the Abused Children and Another v Minister of Justice and Constitutional Development and Another (73300/10) [2013] ZAGPPHC 1 (4 January 2013)

NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE
NO: 73300/10
In
the matter between:
THE
TEDDY BEAR CLINIC FOR ABUSED CHILDREN
................................
First Applicant
RAPCAN
...................................................................................................................
Second
Applicant
and
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
...................................................................................................
First
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
...............................
Second Respondent
and
THE
TRUSTEES FOR THE TIME BEING OF
THE
WOMEN’S LEGAL CENTRE TRUST
.......................................................
First
Amicus Curiae
TSHWARANANG
LEGAL ADVOCACY CENTRE
….......................................
Second
Amicus Curiae
JUSTICE ALLIANCE OF
SOUTH AFRICA
.......................................................
Third
Amicus Curiae
JUDGMENT
Coram:
RABIE J
1.
This application seeks to challenge the constitutional validity of
certain sections of the Criminal Law (Sexual Offences and
Related
Matters) Amendment Act, Act 32
of
2007
(“the Act"). More particularly it concerns the
constitutional validity of aspects of the following sections:
1.1.
section 15 of the Act - titled 'Acts of
consensual sexual penetration with certain children (statutory
rape)’’;
1.2.
section 16 of the Act - titled “Acts
of consensual sexual violation with certain children (statutory
sexual assault)":
and
1.3.
section 56(2) of the Act - dealing with
defences in respect of sections 15 and 16 of the Act.
2.
These provisions criminalise a wide range of consensual sexual
activities between children of a certain age. Only to the extent
that
these sections are not found to be unconstitutional, do the
applicants also challenge the constitutional validity of:
2.1.
section 54(1 )(a) of the Act - which
requires a person who has knowledge that the impugned offences have
been committed by a child
under 18 years of age to report such
knowledge to a police official; and
2.2.
sections 50(1 )(a)(i) and 50(2)(a)(i) of
the Act - which require children convicted of the impugned offences
to be included in the
National Register for Sex Offenders;
insofar
as they apply to children engaging in consensual sexual activities.
3.
The First Applicant is THE TEDDY BEAR CLINIC FOR ABUSED CHILDREN, a
not- for-profit company duly registered and incorporated
in
accordance with section 21 of the Companies Act, Act 61 of 1973.
3.1.
The First Applicant had its origins more
than 24 years ago in the outpatient facilities of the Johannesburg
General Hospital and
the Department of Paediatrics of the Medical
School of the University of the Witwatersrand in response to an
urgent need for medical
examinations for abused children.
3.2.
Currently, the First Applicant offers a
full range of services for abused children and other children in need
of care, including
forensic medical examinations, forensic
psychological counselling, other counselling (including HIV test
counselling), psychological
assessments, play therapy, preparation
for court appearances for children and their families, social
awareness and training programmes
and programmes designed to divert
young sex offenders away from the criminal justice system to a
therapeutic environment.
4.
The Second Applicant is RAPCAN, the name of which is an acronym for
“Resources Aimed at the Prevention of Child Abuse and
Neglect”,
a not-for-profit company duly registered and incorporated in
accordance with section 21 of the Companies Act, 61
of 1973, with its
head office in Cape Town.
4.1.
The Second Applicant was established in 1989 by the University of
Cape Town's Department of Paediatrics and Child Health in
response to
the need for education and training in the field of child abuse
prevention. Initially it was set
up
as a research programme and was later attached to the Child Health
Unit at the University. It is now an independent organisation

dedicated to the prevention of child victimisation and offending and
the promotion of children's rights. It operates locally in
Cape Town,
at provincial and national levels in South Africa, as well as in the
Southern African region and internationally. The
Second Applicant’s
work includes primary, secondary and tertiary prevention approaches
with respect to child sexual abuse,
corporal and humiliating
punishment and child offending, especially sexual and violent
offending.
4.2.
These approaches include direct support
services to child victims of sexual offences at six Sexual Offences
Courts in urban and
peri-urban settings around Cape Town, the
development of resources and best practices aimed at the extension
and improvement of
quality services to child victims and witnesses in
the criminal justice system and the advocacy of appropriate reform of
law and
policy to protect children from abuse, exploitation and
neglect.
5.
The First Respondent is the MINISTER FOR
JUSTICE AND CONSTITUTIONAL DEVELOPMENT, cited as the Minister
responsible for the administration
of the Act.
6.
The Second Respondent is the NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS, cited by virtue of the powers and
obligations conferred on
him by the Act.
7.
The first Amicus Curiae is the WOMEN’S
LEGAL CENTRE TRUST. According to its constitution the core objective
of the first amicus
curiae is to advance and protect the human rights
of all women and girls in South Africa, particularly women who suffer
many intersecting
forms of disadvantage. In so doing it seeks to
contribute to replacing the systematic discrimination and
disadvantage that women
face. In fulfilling its main objective it
assists women litigants free of charge and make submissions to assist
courts in constitutional
and public interest matters that concern
women's rights and gender equality. Over the years it has
participated in numerous cases
concerning these issues in the form of
litigating on behalf of parties or in the form of making relevant
submissions.
8.
The
second Amicus Curiae
is
the TSHWARANANG LEGAL ADVOCACY CENTRE,
a
non-profit independently funded centre. It was established to advance
the human rights of women in South Africa and does so through

conducting research and engaging in advocacy, training and capacity
building aimed at the promotion and protection of women's rights.
The
activities of the second amicus curiae are extensive and it was
allowed to participate in these proceedings for the obvious
interest
it has in the subject matter of the application.
9.
The third Amicus Curiae is the JUSTICE ALLIANCE OF SOUTH AFRICA which
is a non-profit voluntary association whose objectives
are detailed
in clause 4 of its constitution. The key objective is to "take
all lawful and proper steps to uphold and develop
Judaeo-Christian
values, and the Constitution and laws of the Republic of South
Africa, by means of litigation in the courts, submissions
to
Parliament and assistance to members of Parliament, involvement in
the media, and in any other appropriate way". The third
amicus
curiae has in the past often participated in litigation relating to a
wide variety of issues and was again allowed to do
so in the present
application.
10.
The applicants brought the present
application:
10.1.
in their own interests, as organisations
dedicated to upholding and protecting children’s rights,
pursuant to section 38(a)
of the Constitution;
10.2.
on behalf of all children at risk of
being criminalised under sections 15 and 16 of the Act and processed
by the criminal justice
system, pursuant to section 38(c) of the
Constitution and section 15(2)(c) of the Children’s Act, 38 of
2005 (the “Children’s
Act”); and
10.3.
in the
public interest, pursuant to section 38(d) of the Constitution and
section 15(2)(d) of the Children’s Act.
11.
Before I proceed with a discussion of
the merits of the application I wish to express my appreciation and
gratitude for the assistance
rendered to this court by all the
parties and the amici curiae both in the form of heads of argument
and oral argument in court.
The heads of argument filed on behalf of
the parties and the amici were particularly helpful and I have made
extensive use thereof
in this judgement. I must also add that the
parties and the amici presented a vast number of arguments and
submissions and referred
extensively to authorities. I have
considered all that was said and referred to. but in this judgment I
have merely referred to
the more salient aspects thereof.
12.
Broadly speaking the Act aims to codify
the law regarding sexua! offences in a single statute. It
criminalised all forms of sexual
abuse and exploitation. It further
repealed certain common law sexual offences and replaced them with
new and, in some instances,
expanded or extended statutory sexual
offences, irrespective of gender. It also established a National
Register for Sex Offenders
in order to establish a record of persons
who are or have been convicted of sexual offences against children
and persons who are
mentally disabled so as to prohibit such persons
from being employed in a manner that places them in a position to
work with or
have access to or authority or supervision over or care
of children or persons who are mentally disabled. In the process it
repealed
most of the Sexual Offences Act, Act 23 of 1957, as well as
various common law crimes, including rape and indecent assault.
13.
The sexual offences created by the Act
are those offences mentioned in Chapters 2, 3
and 4 and sections 55 and 71(1), (2) and
(6) of the Act. What concerns us in the present application are
certain of the offences
created in Part 1 of Chapter 3, being sexual
offences against certain children, and more particularly the offences
created in section
15(1) and section 16(1).
14.
Chapter 2 of the Act criminalises
non-consensual acts of sexual penetration and sexuai violation with
any person, including both
adults and children of any age, as well as
other types of sexual acts. Part 2 and Part 3 of Chapter 3 relate to
other offences
against children which are not relevant for purposes
of the present application. Chapter 4 of the Act relates to sexual
offences
against persons who are mentally disabled. The Applicants do
not seek to impugn the constitutional validity of any of the sections

in chapters 2, Part 2 and Part 3 of Chapter 3, and Chapter 4 of the
Act.
15.
Part 1 of Chapter 3 consists of sections
15 and 16. The offence created in section
15
relates to the consensual sexual
penetration with certain children which, in terms of section 15. is
also referred to as statutory
rape. The offence created in section 16
relates to the consensual sexual violation with certain children
which, in terms of section
16, is also referred to as statutory
sexual assault.
16.
Section 15 and 16 provide as follows:
"15
Acts of consensual sexual penetration with certain children
(statutory rape)
(1)
A person
('A') who commits an act of sexual penetration with a child ('B') is.
despite the consent of B to the commission of such
an act, guilty of
the offence of having committed an act of consensual sexual
penetration with a child.
(2)
(a) The institution of a prosecution for
an offence referred to in subsection (1) must be authorised in
writing by the National
Director of Public Prosecutions if both A and
B were children at the time of the alleged commission of the offence:
Provided that,
in the event that the National Director of Public
Prosecutions authorises the institution of a prosecution, both A and
B must be
charged with contravening subsection (1).
(b)
The National Director of Public Prosecutions may not delegate his or
her power to decide whether a prosecution in terms of this
section
should be instituted or not.
16
Acts of consensual sexual violation with certain children (statutory
sexual assault)
(1)
A person ('A') who commits an act of
sexual violation with a child ('B') is, despite the consent of B to
the commission of such
an act, guilty of the offence of having
committed an act of consensual sexual violation with a child.
(2)
(a) The institution of a prosecution for
an offence referred to in subsection (1) must be authorised in
writing by the relevant
Director of Public Prosecutions if both A and
B were children at the time of the alleged commission of the offence:
Provided that,
in the event that the Director of Public Prosecutions
concerned authorises the institution of a prosecution, both A and B
must
be charged with contravening subsection (1).
(b)
The Director of Public Prosecutions concerned may not delegate his or
her power to decide whether a prosecution in terms of
this section
should be instituted or not."
17.
In order to appreciate the contents of
these sections it is necessary to refer to certain definitions as
contained in the Act. "Child"
is defined in section 1(1) as
follows: "'child'means- (a) a person under the age of 18 years;
or (b) with reference to sections
15 and 16, a person 12 years or
older but under the age of 16 years, and 'children
'
has a corresponding meaning."
For
purposes of the present application a child is therefore a person of
the age of 12, 13, 14 or 15 years. I shall also refer hereinafter
to
children in this age group as "adolescents".
18.
Section 15 and 16 thus concerns the
consensual "sexual penetration" and the consensual "sexual
violation" of
a child in the age group 12 to 15 years.
19.
"Sexual
penetration" is defined as follows:
'sexual
penetration’ includes any act which causes penetration to any
extent whatsoever by-
(a)
the genital organs of one person into or beyond the genital organs,
anus, or mouth of another person;
(b)
any other part of the body of one person
or. any object, including any part of the body of an animal into or
beyond the genital
organs or anus of another person: or
(c)
the genital organs of an animal, into or
beyond the mouth of another person, and 'sexually penetrates' has a
corresponding meaning."
20.
"Sexual violation" is defined
as follows:
'sexual
violation' includes any act which causes-
(a)
direct or indirect contact between the-
(i)
genital organs or anus of one person or.
in the case of a female, her breasts, and any part of the body of
another person or an
animal or any object, including any object
resembling or representing the genital organs or anus of a person or
an animal:
(ii)
mouth of one person and-
(aa)
the genital organs or anus of another person or, in the case of a
female.
her
breasts:
(bb)
the mouth of another person;
(cc)
any other part of the body of another person, other than the genital
organs or anus of that person or, in the case of a female,
her
breasts, which could-
(aaa)
be used in an act of sexual penetration:
(bbb)
cause sexual arousal or stimulation; or
(ccc)
be sexually aroused or stimulated thereby: or
(dd) any object
resembling the genital organs or anus of a person, and in the case of
a female, her breasts, or an animal; or
(iii)
mouth of the complainant and the genital
organs or anus of an animal;
(b)
the masturbation of one person by another person: or
(c)
the insertion of any object resembling
or representing the genital organs of a person or animal into or
beyond the mouth of another
person, but does not include an act of
sexual penetration, and 'sexually violates' has a corresponding
meaning.”
21.
The provisions of sections 15 and 16
must also be read together with section 57(1) of the Act, which
provides that any child under
the age of twelve is incapable of
consenting to a sexual act. A "sexual act" is defined in
the Act as "an act of
sexual penetration or an act of sexual
violation". The provisions thus also criminalise all acts of
sexual penetration and
sexual violation committed by any person with
a child under the age of twelve. Again, the applicants do not seek to
impugn the
constitutional validity of these sections.
22.
Where an adult, being a person of 18
years and older, engages in consensual acts of sexual penetration and
sexual violation with
children aged 12 to 15 years of age, this is
dealt with by sections 15 and 16 of the Act. This emerges from
section 1 of the Act,
which, as stated above, defines “child",
for purposes of these two sections, as being from 12 to 15 years of
age. Sections
1,15 and 16, in other words, provide that the age of
consent is sixteen. The effect of these provisions is that whenever
an adult
engages in act of consensual sexual penetration or
consensual sexual violation with an adolescent (that is a child
between from
12 to 15 years), this will amount to an offence under
section 15 or section 16. This is the equivalent of, for example, the
previous
offences of statutory rape and statutory sexual assault. The
applicants do not seek to impugn the constitutional validity of these

sections insofar as they criminalise adults engaging in consensual
acts of sexual penetration or sexual violation with children
in the
age group 12 to 15 years.
23.
However, sections 15 and 16 go much
further and criminalise a wide range of consensual sexual activities
between children of a certain
age. It is against these provisions
which the present application is aimed. Subject to certain narrow
defences in section 56(2)
of the Act. these sections also criminalise
consensual acts of sexual penetration and sexual violation between:
23.1.
a child aged between sixteen and
eighteen years of age (that is a child of the age of 16 or 17 years)
and a child aged 12 to 15
years: or
23.2.
two
children aged 12 to 15 years.
24.
The Applicants were at pains to express
that they recognise that adolescents are in a special position.
Physiologically, they are
rapidly developing and maturing, but
psychologically they are not yet fully developed and are still
vulnerable to the influence
of adults. For that reason the Applicants
accepted that sections 15 and 16 are constitutionally permissible
insofar as they criminalise
the sexual conduct of adults. However, to
the extent that the sections criminalise the sexual conduct of
children, they are unconstitutional.
The impugned provisions which
are consequently challenged in the present application are those that
criminalise consensual sexual
activity between children, and the
consequential reporting and registration as sex offender
requirements.
25.
In order to understand the reach of
sections 15 and 16, the wide range of conduct that falls within the
scope of the definitions
of "sexual penetration" and
"sexual violation" needs to be understood. Sexual violation
is defined to include,
amongst others.
25.1.
Direct or indirect contact between the
mouth of one person and the mouth of another person. Thus, all forms
of kissing on the mouth
are included.
25.2.
Direct or
indirect contact between the mouth of one person and ‘any other
part of the body of another person” which
“could cause
sexual arousal or stimulation” or "be sexually aroused or
stimulated thereby'. Thus most forms of
petting are included.
25.3.
Direct or
indirect contact between the genital organs or anus (or breasts in
the case of a female) and "any part of the body
of another
person”. Thus most forms of bodily contact, including cuddling
and hugging while fully clothed, are included,
26.
It is clear that “sexual
violation” is defined so broadly that it includes conduct (such
as kissing and light petting)
that virtually every normal adolescent
participates in at some stage or another. It is for this reason that
the applicants submitted
that the term "sexual violation",
is a misnomer, as the definition includes virtually every conceivable
form of physical
contact, even where it is only tangentially of a
sexual nature. It was further submitted that much of the behaviour
which is included
in the aforesaid definition is developmental^
normative and can contribute to positive and healthy development if
it is conducted
in ways that are consensual and respectful. I shall
refer to this aspect again below.
27.
Sexual penetration is defined to include
“any act which causes penetration to any extent whatsoever”
by any part of
the body or any object, into the genital organs or
anus of another person. Thus, many forms of consensual sexual play
and exploration
which cannot cause pregnancy or the transmission of
sexual disease are included.
28.
The evidence before this court was
undisputed that large numbers of adolescents engage in the kinds of
behaviour that fall within
the definitions of "sexual
penetration" and "sexual violation". The studies cited
in the Flisher and Gevers
expert opinion, and to which I refer below,
returned the following results for the cohort of adolescents surveyed
in Cape Town
and Polokwane:
28.1.
Between 39% and 80% had engaged tn
kissing.
28.2.
Between 25.8% and 33.8% had engaged in
heavy petting.
28.3.
Between 15% and 26.8% had engaged in
vaginal sex.
29.
The offences created by the impugned
provisions thus apply to huge numbers of children across our country.
In this regard the applicants
submitted that any enforcement of the
criminal prohibitions will necessarily be selective and arbitrary and
that because so many
children engage in the conduct which the
provisions criminalise, there is an intrinsic unfairness in the
selection of which children
are to be charged. This inherent
arbitrariness is exacerbated, so it was submitted, by the existence
of a wide and unguided prosecutorial
discretion about which cases to
prosecute. I shall refer to this issue again below.
30.
Apart from the wide range of conduct
that falls within the scope of the definitions of "sexual
penetration" and "sexual
violation" as mentioned
above, both section 15 and section 16 accomplish a number of
qualitatively different results. I shall
deal with section 15 first
and then with section 16.
31.
An analysis of section 15 shows, inter
alia, the following:
31.1.
Where A is an adult (18 years and above)
and B is 12 to 15 years of age, and A and B engage in an act of
consensual sexual penetration,
A is guilty
of
the offence created in section 15(1) despite B having consented to
the act. Only A has committed an offence, not B.
31.2
Where A is a child of 16 to 17 years of
age and B is 12 to 15 years of age, and A and B engage in an act of
consensual sexual penetration,
A is guilty of the offence created in
section 15(1) despite B having consented to the act. Only A has
committed an offence, not
B.
31.3.
Where both A and B are 12 to 15 years of
age, and A and B engage in an act of consensual sexual penetration,
both A and B are guilty
of the offence created in section 15(1)
despite the fact that they have consented to the act. If a
prosecution is authorised in
terms of section 15(2), A and B must
both be prosecuted.
32.
As mentioned above, and for reasons of
the vulnerability of adolescents to the psychological influence of
adults, who are generally
more experienced and mature than
adolescents are, the applicants did not seek to impugn the Act’s
criminalisation of A where
A is an adult and B is an adolescent,
(i.e., the result set out in the first subparagraph of the previous
paragraph). However,
the applicants contended that the
criminalisation of consensual sexual acts between adolescents (i.e.
the result described in the
third subparagraph of the previous
paragraph) violates their constitutional rights. The applicants
further submitted that the criminalisation
of consensual sexual acts
between an adolescent on the one hand and another child who is 16 or
17 years of age (i.e. the result
described in the second subparagraph
of the previous paragraph) violates the same rights in cases where
the adolescent is two years
or less younger than the older child.
33.
Section 16
which deals with acts of “consensual sexual violation"
with certain children, i.e., statutory sexual assault,
has to be read
with the defence created in section 56(2)(b) of the Act. which
provides:
56
(2) Whenever an accused person is charged with an offence under —
(b)
section 16 it is a valid defence to such
a charge to contend that both the accused persons were children and
the age difference
between them was not more than two years at the
time of the alleged commission of the offence."
34.
When read with this defence and the
definition of “child” in section 1 of the Act, section 16
also accomplishes a number
of qualitatively different results, which
differ from the outcomes under section 15 because of the defence in
section 56(2)(b).
An analysis shows, inter alia, the following:
34.1.
Where A is an adult and B is 12 to 15
years of age, and A and B engage in an act of consensual “sexual
violation". A
is guilty of the offence created in section 16(1)
despite B having consented to the act. Only A has committed an
offence, not B.
34.2.
Where A is
a child between of 16 or 17 years of age and B is 12 to 15 years of
age. and A and B engage in an act of consensual '‘sexual

violation", whether A is guilty of the offence created in
section 16(1) depends on whether A is more than two years older
than
B. If so, only A may be prosecuted, not B.
34.3.
Where both A and B are 12 to 15 years of
age. and A and B engage in an act of consensual "sexual
violation”, the question
of whether a criminal offence has been
committed depends on whether A is more than two years older than B.
If there is more than
a two year age gap, an offence has been
committed and both A and B have committed an offence. It is important
to emphasise in this
regard that the younger adolescent is thus also
rendered guilty of the offence where he or she is more than two years
younger than
the older adolescent. This outcome is thus different
from the previously mentioned event where A and B are more than two
years
apart but A is of an older age of 16 or 17 years. In such a
case B would not have committed an offence and could not be
prosecuted.
35.
As stated before, because of the
vulnerability of adolescents to the psychological influence of
adults, the applicants do not seek
to impugn the criminalisation of A
in a situation of consensual “sexual violation” where A
is an adult and B is an
adolescent {i.e.. the result set out in the
first subparagraph of the previous paragraph). The Applicants further
submitted that
the criminalisation of A in a situation of consensual
“sexual violation" where A is 16 or 17 years of age and B
is more
than two years younger than A (i.e., some of the results set
out in the second subparagraph of the previous paragraph), would be

justifiable in light of the age disparity between the participants.
36.
However, the applicants contended that
the criminalisation of acts of consensual “sexual violation”
between adolescents
where there is an age disparity of more than two
years (i.e. the result described in the third subparagraph above)
violates their
constitutional rights as set out below.
37.
The applicants furthermore contended
that the different outcomes referred to above,
i.
e., when comparing the position of
the younger adolescent when the older person was 12 to 15 years, on
the one hand, with the position
of the younger adolescent when the
older person was 16 and 17 years, on the other hand, constitute a
result which is irrational,
anomalous and absurd insofar as the
position of the younger adolescent is concerned. For example, when A
is seventeen years old
and B is fourteen years old (i.e. a difference
of more than two years) and they engage in an act of consensual
“sexual violation",
only A may be prosecuted and not B.
However, when A is fifteen years old and B is twelve years old (also
a difference of more than
two years) and they engage in an act of
consensual “sexual violation”, both must be prosecuted.
In other words, the
younger child is protected (and not criminalised)
in cases where the older child is older than sixteen. But in cases
where the
older child is younger than sixteen, the younger child is
criminalised along with the older child even if the age difference
between
them is the same.
38.
The applicants further submitted that
the offences created by sections 15 and 16 are also irrational in
some respects when read
with the defence created by section 56(2)(a)
of the Act. Section 56(2)(a) provides that:
"(2)
Whenever an accused person is charged with an offence under—
(a)
section 15 or 16, it is. subject to
subsection (3). a valid defence to such a charge to contend that the
child deceived the accused
person into believing that he or she was
16 years or older at the time of the alleged commission of the
offence and the accused
person reasonably believed that the child was
16 years or older:...
39
.
The applicants referred to the following
example to highlight the irrationality of the operation of the
section 56(2)(a) defence
in some circumstances: B (a girl, for the
sake of example) is in grade 10 at school. She is fifteen years old.
She is in class
with a boy A, who is sixteen years old and another
boy, C, who is also fifteen years old. She tells both boys that she
is sixteen
and they reasonably believe her, after which they
proposition her for sex. If she engages in consensual sexual
penetration with
A. he may raise the defence set out in section
56(2)(a) of the Act, and neither of them could be convicted of an
offence.
40.
If, however, the girl engages in
consensual sexual penetration with C, if either is prosecuted, they
must both be prosecuted, even
though C may raise the defence set out
in section 56(2)(a) of the Act, and only B (the girl) may be
convicted. This would be so
because the defence created by section 56
(2) (a) is not available to the person who caused the deception,
i.e.. B (the girl).
41.lt
is clear from this that the Act renders a wide range of behaviours on
the part of adolescents and children criminal and the
examples
referred to above, are, according to the applicants, serious
anomalies and show that none of the behaviours on the part
of
adolescents and children which are criminalised by the impugned
provisions and which are relevant to this application, fall
within
the purpose of the provisions as stated by the Minister (the first
respondent), namely to protect children from predatory
adults.
42.
The impact of the provisions in sections
15 and 16 of the Act on adolescents must also be considered in the
light of the provisions
of Chapter 6 of the Act which relate to the
creation of a National Register For Sex Offenders. In terms of
section 43 this Register
contains particulars of persons convicted of
any sexual offence against a child or a person who is mentally
disabled or are alleged
to have committed a sexual offence against a
child or a person who is mentally disabled. A sexual offence means
any offence in
terms of Chapters 2, 3 and 4 of the Act and thus
includes the offences created by the impugned provisions which are
relevant to
the present application.
43.
Entry on the Register is an extremely
serious matter with long term effects. A person whose particulars
have been included in the
Register, may not be employed to work with
a child in any circumstances; or hold any position, related to his or
her employment,
or for any commercial benefit which in any manner
places him or her in any position of authority, supervision or care
of a child,
or which, in any other manner, places him or her in a
position of authority, supervision or care of a child or where he or
she
gains access to a child or places where children are present or
congregate; or be granted a license or be given approval to manage
or
operate any entity, business concern or trade in relation to the
supervision over or care of a child or where children are present
or
congregate: or become the foster parent, kinship care-giver temporary
safe care-giver or adoptive parent of a child.
44.
Sections 15 and 16 must furthermore be
considered in conjunction with the provisions of section 54 (1) of
the Act. According to
section 54(1) a person who has knowledge that a
sexual offence has been committed against a child must report such
knowledge immediately
to a police official and failure to do so
constitutes an offence for which the person is liable on conviction
to a fine or to imprisonment
for a period not exceeding five years or
to both a fine and such imprisonment. The provisions of this section
clearly also apply
to the consensual offences created by sections 15
and 16. even if both offending parties are adolescents.
45.
Section 54 (2) (a) provides that a
person who has knowledge, reasonable belief or suspicion that a
sexual offence has been committed
against a person who is mentally
disabled must report such knowledge, reasonable belief or suspicion
immediately to a police official.
Failure to do so constitutes an
offence and is liable on conviction to a fine or to imprisonment for
a period not exceeding five
years or to both a fine and such
imprisonment. This section obviously relates to children as well.
46.
Although the provisions of section 54
are not directly the subject of the present application, and may
possibly in future become
the subject of a separate constitutional
challenge, the effects thereof do play a role in the consideration of
the constitutionality
of the impugned provisions.
47.
Regarding the purpose of the impugned
legislation and its impact on children the applicants referred
extensively to the parliamentary
deliberations on the Act, the
briefing by the then Deputy Minister of Justice and Constitutional
Development to the Portfolio Committee
on Justice and Constitutional
Development during 2006, the discussions in the portfolio committee
and the ultimate report on the
bill by the portfolio committee. I do
not deem it necessary to refer to that evidence herein.
48.
The applicants also presented expert
evidence in the form of an expert opinion prepared by the late
Professor Alan Flisher and Me
Anik Gevers. The expert opinion was
annexed to the founding affidavit is annexure "LS8". Prior
to his passing. Prof.
Flisher was a child and adolescent psychiatrist
teaching at the University of Cape Town and Me Gevers is a clinical
psychologist
and researcher specialising in child and adolescent
mental health and well-being at the same institution.
49.
In their founding affidavit the
applicants made extensive reference to this expert opinion of Flisher
and Gevers and I regard the
summary and the references as set out in
the founding affidavit to be a fair reflection and a fair summary of
the expert evidence.
I shall consequently refer to paragraphs 51 to
63 of the founding affidavit despite the fact that it contains
additional submissions
by the applicants. These paragraphs read as
follows:
"51.
The Applicants do not quarrel with the general scheme of the Act with
respect to the age of consent. Most jurisdictions
in the world
specify one or more ages of consent, and draw “bright line"
rules with respect to age, as it is not seen
as viable or practical
under most circumstances to differentiate between individual children
on the basis of their particular levels
of physical, cognitive and
emotional development. In this respect, the Applicants consider it
within the legitimate berth of the
legislature's discretion to
specify twelve as the age under which consent would be legally
irrelevant and sixteen as the general
age of consent.
52.
Indeed, the legislature’s
determination in this regard is backed by the Flisher and Gevers
Opinion. Based on various studies,
they show that the onset of
puberty generally occurs before or around the age of twelve, with
most other physical indications of
sexual maturity manifesting
between the ages of twelve and sixteen. (See “LS 8" at pp.
4-5)
53.
Further, and partly due to their
physical development, adolescents “begin to understand and
experience their bodies in different
ways” and “to
experience sexual pleasure and integrate a sexual identity into their
self-concept and conceptualisations
of their bodies." (“LS
8” at p. 4) Their sexual development “may affect their
cognitive processing as they
learn a new schema to interpret
information and make sexual decisions.” (“LS 8” at
p. 5) This affects their social
relationships, where the roles of
their peers proportionally increase vis-a-vis that of their
caregivers. Significantly, “[w]hen
adolescents are in intimate
relationships, the intimate partner becomes more influential than
platonic friends
and
parents.......... The intimate or dating relationship provides a new
context for
experiential
learning about emotional and physical intimacies.” (“LS
8” at p. 5)
54.
These intimate relationships are “developmental normative'
- i.e.
normal - with up to 87% of a cross-section of Grade 8 to Grade 11
pupils in one study indicating that they are or were in
an intimate
relationship.
11
It is
usually within these intimate relationships that adolescents begin to
explore a range of sexual behaviours including kissing.
petting, oral
sex, vaginal intercourse, and anal intercourse(“LS 8” at
p. 6).
55.
These factors lead Flisher and Gevers to
conclude that “on a psychological level, adolescents begin to
develop the cognitive
and emotional aspects of sexuality, which
together with physiological feedback, motivates them to explore their
sexuality to satisfy
their curiosity and desire to share affection
and connection with a partner”. ("LS 8" at pp. 6-7)
Adolescence is
a time during which children need particular guidance
with respect to their developing sexuality “as adolescents have
underdeveloped
abstract reasoning and decision-making skills.
Individuals develop these cognitive skills during adolescence in
addition to developing
cognitive schemas related to sex and
sexuality." (“LS 8” at pp. 6 - 7).
56.
This makes it clear that adolescents are
in a particularly vulnerable position. They often have the
physiological ability and psychological
disposition to engage in
various sexual activities, but not yet the fully developed cognitive
and emotional apparatus to deal with
such experiences in a
constructive fashion. It follows that the Applicants do not quarrel
with a number of the propositions underlying
the impugned provisions
which are stated above.
57.
However, the impugned provisions
unfortunately go much further than to give effect to these
propositions. Instead of only protecting
adolescents from sexual
advances from adults, they also criminalise adolescents engaging in
sexual acts with other adolescents,
no matter how harmless or,
indeed, developmental^ healthy such acts may be. Many instances of
such criminalisation are set out
in this affidavit.
58.
The Flisher and Gevers Opinion canvasses
the harmful impacts of such criminalisation, both on children charged
with section 15 and
16 offences and on children and society
generally, in detail. In order not to burden this application unduly,
I will summarise
the aspects identified by Flisher and Gevers only
briefly.
I
pray that the whole report by read as incorporated herein.
59.
The point of departure for Flisher and
Gevers is that “given their developmental stage and their
developmental tasks, it is
not unusual or necessarily unhealthy and
harmful for adolescents to engage in sexual behaviours as they begin
to learn about their
sexuality and become more mature in several life
domains." (“LS 8" at p. 7) In this regard, it must be
appreciated
that “sexual behaviours" include a wide range
of acts, including kissing, petting, oral sex, vaginal intercourse
and
anal intercourse, not all of which may be suitable for a specific
child at a specific stage of development. On the other hand, for
most
adolescents, some forms of sexual behaviour may be healthy.
"Healthy"
sexual behaviour is “behaviour that Is mutually consensual,
wanted / desired, non-violent, safe (in terms
of using methods to
minimise risks of STI transmission and pregnancy), and for which the
individual feels emotionally and physically
ready.” (“LS
8” at p. 8) It is in the best interests of children that
attitudes promoting healthy sexual behaviours
are fostered and that
attitudes promoting “unhealthy
n
sexual behaviour (being the opposite of “healthy” sexual
behaviour) are discouraged during the formative period of

adolescence.
60.
The impugned provisions do not only
criminalise potentially “healthy' sexual behaviour among
adolescents, but their (unintended)
effect is to promote "unhealthy'
sexual behaviour. The impugned provisions harm children and society
and promote "unhealthy”
sexual behaviour in the following
ways:
60.1
Children who are accused of or charged
with offences under sections 15 and 16 are likely to experience
emotional distress in the
form of shame, embarrassment, anger and
regret. This will have a lifelong negative influence on these
children’s views on
sexuality. (“LS 8” at p. 12) In
this regard, “healthy development during the adolescent
developmental period
is likely to have a long-lasting impact on the
individual and thus on the various systems within which that
individual is embedded."
("LS 8” at p. 8)
60.2
Criminalisation of consensual sexual
acts will discourage adolescents from seeking help with respect to
their sexuality, because
they may then be prosecuted for such
behaviour and because it reinforces the social stigmas and taboos
around sexuality. This is
likely to drive adolescent’s
sexuality and sexual talk “underground.” Research has
shown that “adolescents'
discussions with their peers about sex
seemed to largely reinforce risky sexual behaviour including having
multiple partners and
not using a condom (among boys) and feeling
unable to negotiate sexual behaviour with partners (among girls)".
('LS 8”
at p. 6) This unhelpful mode of sexual communication is
the only available one when the behaviour in question is unlawful.
Indeed,
“[s]ections
15 and 16 of the Act contribute more to silencing and isolating
adolescents, which makes unhealthy behaviour and
poor developmental
outcomes more likely."
(“LS
8” at p. 13)
60.3
Criminalisation of consensual sexual
acts (especially coupled with the duty to report created by section
54(1 )(a) of the Act) limits
the ability of support organisations to
educate, empower, guide and support adolescents in their sexual
development. This they
cannot do, because they cannot be seen to
promote behaviour that is illegal. The implication of the impugned
provisions is that
abstinence-only sex education should be the only
available form of guidance to adolescents. In this regard, Flisher
and Gevers
opine, on the basis of research conducted especially in
the United States of America that 7s]uch an education programme is
unrealistic,
disempowering, and potentially harmful." (“LS
8” at p. 14)
60.4
The social impact of the criminalisation
of consensual sexual behaviour is to contribute to the taboos and
silence around sexuality
in society generally, and more specifically
with respect to children who are accused of or charged with the
offences. They are
“likely to experience negative social
consequences including stereotyping, gossip and rumours, teasing, and
estranged peer
relationships.“LS 8” at p. 15) This social
stigmatisation will be more keenly felt by girls than boys, due to
the gendered
construction of sexual relations in our society.
60.5
The impugned provisions are likely to
promote inappropriate use of the law. Adults (especially caregivers)
or other children may
report offences in order to make the children
examples of moral turpitude or for reasons of vengeance or social
rivalry. It may
also encourage children charged with these offences
wrongly to plead that they did not consent in order to escape
liability.
60.6
The impugned provisions fail to
distinguish between healthy and unhealthy sexual behaviours. In this
way, they skew adolescents’
moral
compass.
“/f is likely to be a confusing event for the adolescent who is
being punished for engaging in consensual (and potentially
healthy
and safe), developmentally normative behaviour."
(“LS
8” at p. 15) They contribute to adolescents’ risk of
experiencing unhealthy sexual conduct, because they
blend the lines
between right and wrong.
61.
The criminalisation of consensual sexual
acts between adolescents is particularly inapposite in the South
African context, where
research indicates that
(i)
statistically, South Africans tend to
have their first sexual experiences during adolescence (“LS
8”at p. 9 - 10) and
(ii) many adolescents already experience
sex in violent, coercive or unsafe circumstances. (“LS 8”at
p. 11) These experiences
lead to negative physical consequences (such
as unwanted pregnancies and increased levels of infection by HIV and
other STDs) as
well as psychological harm. The failure of the
impugned provisions to distinguish between healthy and unhealthy
sexual behaviours
will exacerbate the tendency for first sexual
experiences to occur under negative circumstances.
62.
Flisher
and Gevers’ observations regarding the tendency of sections 15
and 16
to
diminish help-seeking among teenagers are thrown into stark relief if
the Act’s prohibition on consensual sexual activities
is
contrasted with the measures taken by the legislature to promote the
access of teenagers to reproductive and sexual health services.
So,
for instance:
62.1
Section 134 of the Children’s Act provides that:
62.1.1
No person may refuse to sell condoms to
a child over the age of 12 years or to provide a child over the age
of 12 years with condoms
on request where such condoms are provided
or distributed free of charge.
62.1.2
Contraceptives other than condoms may be
provided to a child on request by the child and without the consent
of the parent or care-giver
of the child if the child is at least 12
years of age, proper medical advice is
given
to the child and a medical examination is carried out on the child to
determine whether there are any medical reasons why
a specific
contraceptive should not be provided to the child.
62.1.3
A child who obtains condoms,
contraceptives or contraceptive advice in terms of the Children’s
Act is entitled to confidentiality
in this respect, subject to
section 110 of the Children's Act, which provides for reporting
duties for persons “who on reasonable
grounds concludef ] that
a child has been abused in a manner causing physical injury, sexually
abused or deliberately neglected.”
62.2
The Choice on Termination of Pregnancy Act, 92 of 1996 provides in
its section 5(2) that “no consent other than that
of the
pregnant woman shall be required for the termination of a pregnancy'.
These
provisions, which aim to make reproductive and sexual health
services freely available to children in need thereof, are
in direct
contrast to, and will be severely compromised by, the impugned
provisions - in particular the reporting duties created
by section
54(1 )(a) of the Act."
50.
The applicants submitted further
evidence of incidents which they experienced in practice as service
organisations intimately engaged
in the criminal justice system with
respect to both child victims and child offenders. It is not
necessary to refer to the physical
examples but it is necessary to
note some of the conclusions which, according to the applicants, can
be drawn. Firstly, despite
many reforms to make the child justice
system more child-friendly and to minimise the secondary
victimisation experienced in many
instances of the prosecution of
sexual offences, exposure to the criminal justice system is still a
dramatic and harrowing experience
for children, be they victims or
offenders. Despite the ameliorating factors of a discretion of the
National Director of Public
Prosecutions, or in some instances the
relevant Director of Public Prosecutions, whether to prosecute or
not, and the possibility
of diversion for child offenders in certain
circumstances, the fact remains that even if they are not ultimately
prosecuted for
the section 15 or 16 offences, the children will be
subjected to earlier processes of the criminal justice system which
can include
arrest, providing detailed statements, questioning by the
police and other authorities, appearance at the preliminary enquiry
and,
possibly, even detention. Even if the child is diverted, he or
she wouid be regarded as a sex offender and would have to admit
responsibility for the section 15 or 16 offence. Children would in
most cases also be exposed to public humiliation and stigma when
it
becomes known in the community that they were accused of these
offences. The mere fact of being charged with an offence under
the
impugned provisions will cause emotional stress in the form of shame,
embarrassment, anger, regret and estranged peer relationships.
These
feelings will contribute to a negative attitude to sexual matters and
decrease self esteem. Female children are especially
likely to suffer
this kind of harm.
51.
Based on the above and on their own
practical experiences, the applicants submitted that the suppositions
and factual conclusions
on which the impugned provisions are based,
are flawed in many respects which include the following: It is
entirely unnecessary
to achieve the goal of protecting adolescents
against adult sexual interference, to criminalise sexual
experimentation between
adolescents to the extent that the impugned
provisions do. In this regard, the conclusion with respect to
seventeen and eighteen
year olds that they should not be drawn into
the criminal justice system "in their thousands” equally
applies to adolescents.
The negative impact of such criminalisation
entirely outweighs any positive effects that it may have. Secondly,
the protective
measures inserted by the legislature in sections 15
and 16 address the severity of the
impact on adolescents to some extent, but not sufficiently, in light
of the harm that the sections
still may cause in individual cases and
the systemic effects of the sections. In some cases, these protective
measures introduce
additional irrationality into the legislative
scheme - for instance where it compels both children to be charged
with the section
16 offence where the older child is more than two
years older than the younger child.
52.
According to the applicants the
practical outcomes of matters dealt with in terms of the impugned
provisions have demonstrated that
the impugned provisions are highly
counter-productive and unconstitutional. Furthermore, that the
children involved suffered severe
trauma and were subjected to
secondary victimisation. Judging from the evidence presented it in
fact appears that the impugned
provisions demonstrated serious
difficulties with its implementation as well as real damage to the
children which these sections
were supposed to protect.
53.
The impugned provisions will furthermore
in all probability prevent the vast majority of adolescents from
seeking help because they
would fear that they would be charged with
a crime. After all, any councillor or other person in authority would
be placed in an
invidious position for the simple reason that in
order to properly conduct his or her duties, or assist the adolescent
and to build
a trust relationship with the adolescent, they have to
solicit the required information in order to do so. However, once
they have
received this information they would be required to report
the child for the behaviour which has been elicited. This will
isolate
adolescents from potentially supportive resources and
systems. This would also increase the likelihood that adolescents
will engage
in risky behaviour by making it impossible for caregivers
to provide advice, counselling and support on issues regarding the
child's
sexuality. Such caregivers would obviously also, from their
side, be reluctant to enquire too much and would thus be inhibited in

their actions, and actually be prevented from performing their duties
as they are supposed to do. The existence of the offences
also
increases the risk that children will experience unhealthy sexual
contact, by teaching them that consensual, developmental^
normative
sexual behaviour is wrong and deserves to be punished.
54.
The applicants submitted that the
negative consequences of the impugned provisions run even deeper than
would appear at first blush.
So. for example, the applicants
submitted, the impugned provisions might actually in certain cases
discourage the pursuit of rape
charges by victims and the National
Prosecuting Authority (‘the NPA”). It was submitted that
it would be far easier
for the NPA to prove a contravention of
section 15 (consensual sex with a minor) than a contravention of
section 3 (rape). The
NPA will inevitably tend toward pursuing a case
in terms of section 15. The difficulty is further that where the
alleged rapist
is under 16 years old. the victim of the possible rape
must herself also be charged with contravening section 15. It would
then
be for her to prove that the sex was non- consensual and thus
avoid conviction under section 15. Failing this, she would be
convicted.
The applicants also submitted that quite apart from the
manifest injustice this may cause in a given case, this approach is
certain
to further discourage the reporting of rape.
55.
The applicants, the respondents and the
amici curiae placed a bulk of evidence before this court, some of
which had already been
referred to. As stated before it is not
necessary to refer to all the evidence and I shall merely refer to
certain additional features
thereof. The first and second amici
supported the submissions made on behalf of the applicants but sought
to emphasise the right
to equality and the right to access healthcare
services, in particular reproductive health care, which they
submitted are infringed
by the impugned provisions for the reason
that these provisions will be felt disproportionately by adolescent
girls. Apart from
their own factual observations, to which they
alluded, the first and second amici relied on and supported the
evidence presented
by the applicants.
56.
The third amicus submitted a number of
affidavits including that of a gynaecologist, a sexologist, a social
worker, a principal
of a High School, a paediatrician and a
psychologist. They all underlined the health and psychological risks
for sexually active
adolescents and all were anxious that adolescents
should be protected not only against adults, but also against
themselves, because
of their immaturity, irresponsibility,
susceptibility to peer pressure and generally their poor
decision-making ability. Many of
the deponents supported legislative
prohibitions with regard to adolescents, even in respect of
consensual sexual activity. All
differed, however, as to the nature
and extent of such prohibitions.
57.
One deponent, the principal of a High
School in the Western Cape, took a much more stringent view and
stated that he had the support
of quite a number of principals of
schools. He was, inter alia, of the view that it is essential to have
the deterrent of the criminal
law to protect children from
psychologically harming themselves, and from the risk of pregnancy,
HIV and STD's. He stated that
it would make their already difficult
task of dissuading children from early sex much more difficult if the
law were to be ameliorated
and that the proposals by the applicants
would send out a message that sex is acceptable for children and that
there are no consequences.
On the other hand, the psychologist
referred to, stated that although he believes that legal regulation
of sexual behaviour could
be a means of setting a standard of
behaviour and also of creating a means of encouraging healthy sexual
behaviour, abstinence
programs have been less successful than
informative programs such as programs of information and support
wherein delayed sexual
involvement could be advocated.
58.
In response to the aforesaid affidavits
filed by the third amicus, the applicant filed a number of affidavits
in reply. Again, the
deponents are all involved with young people and
the difficulties they experience, especially those of a sexual
nature, and have
vast experience. It becomes clear from a study of
this evidence that everyone seems to accept the need to be open and
honest about
teenage sexuality and to allow young people to make
truly informed choices as to when they will start exploring and
eventually
having sex. Reference was made to the many tools available
to delay sexual debut and to channel same in a safe and balanced
route
to the advantage of those concerned. There are many reasons for
early sexual debut.
those
factors are being addressed and much more can and should be done.
However, the majority of deponents seem to be unanimous
that using
the weapon of the criminal justice system to deal with adolescent
sexuality would further marginalise young people and
will have
long-term harmful consequences not only in respect of their own
sexuality but also in respect of their own personal psychological

well-being.
59.
Of particular interest is the affidavit
by a principal of a High School in rural Mpumalanga who was joined in
his affidavit by the
Chief Executive Officer of Penreach, a
non-profit Whole School Development Programme working with
stakeholders at every level in
schools in disadvantaged rural
communities. Between them they have 61 years experience in education
of children and have devoted
their professional careers to the
education and pastoral care of children. These deponents expressed
their surprise and dismay
at the statements of the principal of the
school in the Western Cape referred to above, and after referring to
the harmful and
devastating effects of the impugned provisions, not
only on children but also on caregivers and teachers, they submitted
that the
threat of prosecution and criminal conviction would not
serve as an effective deterrent to sexual behaviour amongst children,
and
would in fact be counter-productive and would damage children's
attitudes to sex by creating and reinforcing unhealthy attitudes
of
stigma and shame around the idea of sex. For teachers, principals and
parents to use the threat of criminal sanction would be
an abdication
of their responsibility to educate children about sexual matters and
would damage the relationships of trust in our
schools and our homes.
60.
It is not necessary to refer to the
other affidavits and the evidence contained therein. The golden
thread through all the evidence
is the extreme difficulty experienced
by all those who have children's best interests at heart, to inform
them of all that is necessary
and to try and persuade them to take
the best decisions possible. At the heart of this quest lies the
relationship of trust between
that person and the child concerned.
Without that relationship of trust the battle is lost and trying to
force or threaten in a
child in regard to sexual matters and sexual
conduct, has seldom proved to be successful. In fact, the evidence
seems to be overwhelming
that such would exacerbate the problem and
be highly damaging and harmful to those who are most at risk. With
younger children
the sexual activity in question is often initiated
innocently and possibly even unknowingly, and, according to some,
certainly
without a full understanding or realisation of what they
are doing. For that reason children need to discuss openly such
activity
so that they can be carefully lead and guided on the right
path, not frightened or intimidated into avoiding the topic.
61.
The respondents opposed the present
application and initially did so in every respect. The first, and
main basis of the respondent’s
case was that the impugned
provisions do not violate any constitutional rights of the children
concerned. The starting point of
this submission is that it is
crucial to consider the provisions of the Act and more particularly
the impugned provisions in conjunction
with the other statutes
designed for the protection and promotion of the rights and interests
of children. It is consequently wrong,
according to the respondents,
to isolate and challenge individual provisions of the Act whilst
ignoring the provisions of other
statutes.
62.
In this regard the respondents referred
to the Children's Act. Act 38 of 2005, and the Child Justice Act. Act
75 of 2008. ft was
submitted that the Chifdren's Act is the principal
legislation in all matters affecting children and that all
legislation applicable
to children is subject to the general
principles laid down by that Act. Consequently, the provisions of
sections 15 and 16 of the
Act cannot be properly analysed without due
regard to the general principles of the Children’s Act and the
regulations promulgated
thereunder. It was further submitted that the
Children's Act proscribes implementation of any other legislative
provision that
deviates from its own provisions in matters affecting
children. Consequently, so it was submitted, the impugned provisions
cannot
be considered without at the same time considering the manner
in which they should be implemented if regard is head to the general

principles of the Children's Act. It was thus further submitted that
this court ought not to question the content of the impugned

provisions themselves but should rather have regard to the manner of
their implementation in order to establish their impact on
the
constitutional rights of children.
63.
According
to the respondent the general principles under the Children's Act,
and which govern the implementation of the impugned
provisions,
include the following:
63.1.
All proceedings, actions or decisions in
a matter concerning a child must respect, protect, promote and
fulfill the child’s
fundamental rights (including those that
the applicants assert) and the best interests of the child, subject
to any lawful limitation.
63.2.
Such proceedings, actions or decisions
must promote respect for the child's inherent dignity and a fair and
equitable treatment
of the child, and protect the child from unfair
discrimination on any ground.
63.3.
The approach that is adopted in any
matter concerning a child must be conducive to conciliation.
Problem-solving should be followed
and a confrontational approach
should be avoided.
63.4.
Delay in making a decision or taking
action on any matter concerning a child must be avoided as far as
possible.
64.
According to the respondents the
aforesaid can be regarded as constitutional safeguards and that it is
therefore incorrect to merely
refer to the fact that certain
provisions of the Act criminalise the sexual conduct of children
without considering the aforesaid
constitutional safeguards in the
implementation of the impugned provisions.
65.
The second Act referred to, the Child
Justice Act, also provides, according to the respondents,
constitutional safeguards which
prevent the violation of children's
constitutional rights. One of the aims of the Child Justice Act is to
prevent children from
being exposed to the adverse effects of the
formal criminal justice system by using, where appropriate,
processes, procedures,
mechanisms, services or options more suitable
to the needs of children and in accordance with the Constitution,
including the use
of diversion. The main object of diversion is to
deal with a child who has committed an offence, outside the formal
criminal justice
system in appropriate cases. According to the
respondents such a diversion process would prevent stigmatisation of
the child and
from acquiring a criminal record. It was submitted that
other adverse effects which may be avoided are those of arrest,
prosecution
in a criminal court open to the public, custodial
sentence in a prison cell and featuring in the National Register for
Sex Offenders.
66.
Apart from the aforesaid statutory
safeguards the respondents also referred to National Instructions
issued pursuant to the Child
Justice Act to police officials which
would have the effect that arrests would rarely be justified.
67.
Regarding the impugned provisions the
main submission on behalf of the respondents was that these
provisions do not create offences
and that all they do is to confer
upon the NDPP or the DPP the sole discretion as to whether or not to
institute a prosecution
where adolescents engage in the described
actions. Such discretion would then be exercised within the
strictures of the general
principles set out in the Children's Act
and the objectives and principles of the diversion program provided
for in the Child Justice
Act.
68.
All the submissions made by the
applicants relating to the offences created by the impugned
provisions were thus basically met by
a denial on the part of the
respondents for the aforesaid reason namely that the discretion
conferred would determine whether a
prosecution ensues and that the
exercise of that prosecutorial discretion would be done with
reference to the provisions of the
Constitution, the Children's Act
and the Child Justice Act. As such it was submitted by the
respondents that the best interests
of children would weigh heavily
in the exercise of the prosecutorial discretion not to prosecute and
that diversion would often
be the result.
69.
As a
result of this approach by the respondent all the negative results
and consequences submitted by the applicants and most of
the amici in
the evidence before this court, were described by the respondents as
speculative in the extreme and therefore denied.
70.
In the alternative it was submitted by
the respondents that if the applicants were correct in their
constitutional criticism of
the impugned provisions, this court
should still not grant the relief prayed for. It was submitted that
in the absence of consideration
of the objectives and general
principles of the Children's Act and the Child Justice Act, the
applicants' construction of the impugned
sections is unreasonable and
strained whilst, considering the aforesaid objectives and principles,
a constitutionally valid interpretation
of sections 15 and 16 is
possible.
71.
There can be no doubt that the impugned
provisions as they stand, infringe a range of constitutional rights
of children. In fact,
this much was eventually conceded during
argument on behalf of the respondents. The third amicus curiae also
conceded that the
impugned provisions violate certain constitutional
rights of children. As a result I shall only briefly refer to the
relevant rights
in issue.
72.
Section 28(2) of the Constitution
provides that "a child’s best interests are of paramount
importance in every matter
concerning the child." This section
has a wide ambit and must be considered in all matters affecting
children. In S v M (Centre
for
Child
Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC) at paragraph 15 the
following was stated:
"The
comprehensive and emphatic language of s 28 indicates that just as
law enforcement must always be gender-sensitive, so
must it always be
child-sensitive: that statutes must be interpreted and the common law
developed in a manner which favours protecting
and advancing the
interests of children; and that courts must function in a manner
which at all times shows due respect for children’s
rights."
73.
Section 28(2) is both a self-standing
right and a guiding principle in all matters affecting children See
Minister of Welfare and
Population Development v Fitzpatrick and
Others
[2000] ZACC 6
;
2000 (3) SA 422
(CC) at paragraph 17 Furthermore, and more
importantly, the Constitutional Court has held that section 28 of the
Constitution “protects
children against the undue exercise of
authority.” See Centre for Child Law v Minister of Justice and
Constitutional Development
and Others
2009 (6) SA 632
(CC) at
paragraph 25
74.
The evidence presented in this
application clearly indicates that the impugned provisions may cause
harm to children. They also
constitute an unjustified intrusion of
control into the intimate and private sphere of children’s
personal relationships,
in a manner that will cause severe harm to
them. As such these provisions constitute a violation of section
28(2) of the Constitution.
75.
Section 10 of the Constitution provides
that “(e)veryone has inherent dignity and the right to have
their dignity respected
and protected.” The Constitutional
Court has found that children's dignity is not dependent on that of
their parents. Neither
is the full and proper exercise of dignity by
children held in abeyance until they reach a certain age See S v M
(Centre for Child
Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC) at
paragraph 18.
76.
Criminal offences which apply to
consensual sexual conduct have also previously been found to be
inconsistent with the dignity of
those targeted. In National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
2000 (2) SA 1
(CC), the Constitutional Court
considered the validity of the criminalisation of sodomy and struck
down the criminal prohibition
as an unjustifiable limitation of the
rights of equality, dignity and privacy. The Constitutional Court
made the following findings
which are directly applicable to this
matter:
76.1.
The criminal punishment of consensual
sexual conduct is a form of stigmatisation which infringes the
dignity of those targeted (paragraph
28).
76.2.
Even when such provisions are rarely
enforced, the symbolic impact of such criminalisation has a severe
effect on the social lives
and dignity of those targeted (paragraphs
23 and 28).
76.3.
The criminalisation of consensual sexual
conduct “builds insecurity and vulnerability into the daily
lives” of those
targeted (paragraph 28).
76.4.
As such, the criminalisation is
degrading and invasive and palpably breaches the right of dignity
(paragraph 28).
76.5.
The harm caused by such criminalisation
"can, and often does'’ affect the targeted person’s
"ability to achieve
self-identification and self-fulfilment”
(paragraph 36).
77.
These findings by the Constitutional
Court are in my view equally true of the criminalisation of
consensual sexual conduct between
children. The impugned provisions
also stigmatise and degrade children on the basis of their consensual
sexual conduct.
78.
The impugned provisions also, in my
view, violate the right of children to control over their body, and
to make their own decisions
concerning reproduction. Section 12(2) of
the Constitution provides as follows:
"Everyone
has the right to bodily and psychological integrity, which includes
the right-
(a)
to make
decisions concerning reproduction:
(b)
to
security in and control over their body".
79.
They also violate children’s right
to private and intimate personal relationships as protected by
section 14 of the Constitution.
80.
Our Constitution recognises that
children are the bearers of the aforementioned rights in the same
manner than adults are, and that
children are entitled to a realm of
personal space and freedom in which to live their own lives. In S v M
(Centre for Child Law
as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC) at
paragraph 19 the following was found:
Individually
and collectively all children have the right to express themselves as
independent social beings, to have their own
laughter as well as
sorrow, to play, imagine and explore in their own way. to themselves
get to understand their bodies, minds
and emotions, and above all to
learn as they grow how they should conduct themselves and make
choices in the wide social and moral
world of adulthood.”
The
most intimate spheres of life are protected, even from "erosion
by conflicting rights of the community’’. These
are “the
inner sanctum of a person, such as his/her family life, sexual
preference and home environment.”
See
also Bernstein and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC)
at
paragraphs 65 and 67.
81.
Regarding the right of privacy in
respect of intimate personal relationships the following was stated
in paragraph [32] of the National
Coalition case (supra): ‘Privacy
recognises that we all have a right to a sphere of private intimacy
and autonomy which allows
us to establish and nurture human
relationships without interference from the outside community. The
way in which we give expression
to our sexuality is at the core of
this area of private intimacy. If. in expressing our sexuality, we
act consensually and without
harming one another, invasion of that
precinct will be a breach of our privacy.”
82.
Adolescents are bearers of all of these
rights no less than adults. In Christian Lawyers South Africa v
Minister of Health and Others
(Reproductive Health Alliance as Amicus
Curiae)
2005 (1) SA 509
(T) the court found that the rights in
section 12(2)(a) and (b) (bodily and psychological integrity,
including the right to make
a decision concerning reproduction),
section 27(1 )(a) (health care services, including reproductive
health services), section
10 (dignity) and section 14 (privacy) apply
to ‘everyone’ including girls under the age of 18 years.
Our courts have
also recognised children's right to autonomy,
particularly in the case of adolescents. See
MEC
for Education, Kwa-Zulu Natal v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC); MEC for
Education, Kwa-Zulu Natal v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC), at paragraph
56 and Antonie v Governing Body, Settlers High School and Others
2002
4 SA 738
(C).
83.
The impugned provisions thus trespass
into the constitutionally protected realm of children's personal
relationships. To subject
intimate personal relationships to the
coercive force of the criminal law is to insert state control into
the most intimate area
of adolescents' lives, namely, their personal
relationships. Any legislation which does so must be carefully and
narrowly crafted
to infringe on these vital constitutional rights as
little as possible. An analysis of section 15 and 16 shows that these
provisions
do not properly balance children’s rights to
autonomy, dignity, and privacy with the state’s interest in
encouraging
responsible sexual behaviour by children. In this regard
I again refer to what can only be described as the irrational,
overbroad
and harmful consequences of these provisions.
84.
Instead of creating provisions to
decriminalise experimental non-coercive sexual activity between
children, which the South African
Law Reform Commission proposed in
its 2002 report on sexual offences, the impugned provisions of the
Act do not achieve this. Instead,
they criminalise significant
numbers of children for engaging in consensual sexual activities.
These consensual sexual activities
are of a wide range of acts that
would commonly be performed by children engaging in ordinary sexual
exploration. Sexual penetration
would include, for example, what can
be regarded as petting or "french kissing”. The wide
definition of sexual violation
criminalises an extraordinarily wide
range of acts commonly performed by children and which involve only
moderate sexual exploration.
Criminalising these activities
undermines the best interests and rights of the children concerned
and of children generally.
85.
Even if children are ultimately not
prosecuted for the crimes under sections 15 and
16
or are diverted in terms of the Child
Justice Act following such a decision to prosecute, this would not
avoid the substantial trauma
and harm that the children would endure.
The children would still have been exposed to the earlier processes
in the criminal justice
system such as arrest, being required to
provide detailed statements about their sexual conduct, being
questioned by police and
other authorities about the sexual conduct,
and detention in police cells. There can be no doubt that such
exposure to reporting
and early investigation processes would have
negative consequences on the dignity of the children as a result of
being questioned
on and having to describe the sexual activity to
police officials. Arrest and detention will obviously exacerbate
these negative
consequences. The infringement on the child's privacy
will extend beyond the immediate family to members of the criminal
justice
system. Public exposure and humiliation is a real risk, as
was shown by the evidence before this court. Negative labelling and
social stigma would result and add to the victimisation of the
children involved.
86.I
have already referred to the fact that
the respondents submitted that the impugned provisions, if properly
interpreted, do not have
these harsh and rights-invading consequences
for the reason that very few prosecutions would occur as a result of
the discretion
conferred on the NDPP and the DPP and furthermore
because of the protective mechanisms of other legislation, more
particularly
the possibility of diversion.
87.lt
is, firstly, necessary to say a bit more about the issue of
diversion. Although this alternative process does have salutary

consequences, especially if compared with the normal criminal
procedures to which accused persons are subjected, there can be no

doubt that this process does not completely protect the individual.
Some of the consequences of this process, some of which I have

referred to above, include the following: The child may be arrested;
the child is brought to the police station (in some instances),
and
to the Magistrates Court (in all instances); the child will have come
into contact with an investigating officer and could
be asked to sign
a “warning statement”; even if the child is not arrested,
he or she will be issued with a written
notice to appear at a
preliminary inquiry held at the Magistrates Court; before meeting the
prosecutor, the child will be assessed
by a probation officer; at
this interview the parents are present; the probation officer must
discuss the consensual sexual conduct,
as the officer must assess
whether the child “acknowledges responsibility” for the
offence. Diversion cannot take place
where there has not been an
acknowledgement of responsibility; the child must therefore make an
election: either he or she can
acknowledge responsibility, and
potentially be diverted or he or she must face a trial; if the
prosecutor is satisfied that the
child has acknowledged
responsibility, the matter may be diverted (though it need not be);
the decision to divert must be made
an order of court in terms of
section 42 of the Child Justice Act, in the Magistrate's chambers,
with the child present.
88.
As stated before, diversion wouid
therefore entail bringing the child into contact with the criminal
justice system to a significant
degree. He or she must be taken to
the police station, wait in corridors at the Magistrates Court,
discuss his or her consenting
sexual activity several times with
criminal justice officials in the presence of his or her parents.
This process certainly constitutes
an invasion of children’s
rights. At its best the process would be highly traumatic to any
child and should not be one that
a child should be put through
without sufficient reason. The inappropriateness of the process is
further demonstrated by the fact
that in cases of consensual sexual
conduct, there really is no "victim" and thus there should
in reality be no "offender".
The diversion process does not
recognise this phenomenon and is mainly directed at the usual
victim/offender scenario.
89.
It is also necessary to say a bit more
about the prosecutorial discretion which was heavily relied upon by
the respondents. The
applicants have set out their practical
experiences relating to the exercise of this discretion. As could be
expected, these experiences
were not positive. The respondents'
response thereto was that bad prosecutorial decisions should be
subjected to judicial review
rather than that the constitutionality
of the provisions be attacked. For obvious reasons this submission
cannot be accepted. One
cannot ignore the fact that in practice,
although available, judicial review would seldom protect children
from the aforesaid invasion
of their constitutional rights.
90.
But, apart from the above, prosecutorial
discretion could never cure the existence of constitutionally invalid
criminal offences.
Dealing with the argument that judicial discretion
to acquit was a sufficient protection against a statutory reverse
onus, the
Constitutional
Court found in S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at
paragraph
28 as follows:
"Even
if there is such a discretion and even if it could be exercised so as
to overcome a statutory presumption (surely a doubtful
proposition)
that gives rise to no more than a possibility of an acquittal: the
possibility of a conviction remains. The presumption
of innocence
cannot depend on the exercise of discretion.'’
91.
In casu, prosecutorial discretion
similarly only creates the possibility of non-prosecution or
diversion. The possibility of prosecution
and conviction remains.
I
furthermore agree with the submission on behalf of the applicants
that the Act, the Regulations under the Act, and the prosecutorial

guidelines put up by the NDPP do not contain any real guidance as to
how the discretion, whether or not to prosecute a section
15 or
section 16 offence, should be exercised. In particular, there is no
guidance on what constitutes permissible acceptable
adolescent
sexual development and what does not. Since there is no legislative
or other guidelines to assist the relevant official
to decide which
cases to prosecute, the discretion conferred cannot save the
constitutionality of the provisions.
93.
In Dawood & Another v Minister of Home Affairs & Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC)
at
paragraphs 52 to 57, the Constitutional Court dealt with the effect
of discretionary powers on constitutional rights. It held
that where
Parliament conferred a discretionary power on an official which could
limit fundamental rights, it was necessary for
Parliament to provide
guidance as to how such constitutional rights were to be protected.
At paragraph [54] the following was stated:
We
must not lose sight of the fact that rights enshrined in the Bill of
Rights must be protected and may not be unjustifiably infringed.
It
is for the Legislature to ensure that, when necessary, guidance is
provided as to when limitation of rights will be justifiable.
It is
therefore not ordinarily sufficient for the Legislature merely to say
that discretionary powers that may be exercised in
a manner that
could limit rights should be read in a manner consistent with the
Constitution in the light of the constitutional
obligations placed on
such officials to respect the Constitution. Such an approach would
often not promote the spirit, purport
and objects of the Bill of
Rights. Guidance will often be required to ensure that the
Constitution takes root in the daily practice
of governance. Where
necessary, such guidance must be given. Guidance could be provided
either in the legislation itself or, where
appropriate, by a
legislative requirement that delegated legislation be properly
enacted by a competent authority."
94.
The policy directives referred to by the
respondents do not seem to be of the calibre referred to. The
directives are rather vague
and lack guidance as to how the
prosecutorial discretion is to be exercised.
95.
The Constitutional Court has found in a
number of other matters that, as a matter of principle, where a
criminal offence infringes
a constitutionally protectable interest,
the existence of prosecutorial discretion is no defence. In Case and
Another v Minister
of Safety and Security and Others; Curtis v
Minister of Safety and Security and Others
[1996] ZACC 7
;
1996 (3) SA 617
(CC) the
Constitutional Court struck down offences relating to the possession
of pornographic material. In a footnote to her separate
concurring
judgment (cf footnote 96 paragraph 59), Mokgoro J found that:
'[l]t
is no answer to assert that prosecutorial discretion would never be
exercised so as to hit forms of expression which, it is
common cause,
deserve constitutional protection. This Court held in S v Zuma ...
that even if there existed a judicial discretion
to reject a
confession because of doubts as to the voluntariness thereof, 'that
gives rise to no more than a possibility of an
acquittal: the
possibility of a conviction remains'. See also Attorney-General v
British Broadcasting Corporation
[1980] AC 303
(HL) ([1980]
3 All ER
161)
at 346 (AC)
and
174 (All ER) ('insofar as the Attorney-General invites the Courts to
rely on his ipse dixit in the confidence that all holders
of that
office will always be both wise and just about instituting
proceedings . . . acceptance of his invitation would involve
a denial
of justice to those who are bold enough to challenge that a
particular holder has been either wise or just
1
."
96.
In Mbatha S v Mbatha; S v Prinsloo1996
(2) SA 464 (CC) the Constitutional Court struck down the presumption
that any person in charge
of premises at which certain articles were
present, was in possession of the article. In defence of the
provision, counsel for
the State claimed that the presumption did not
lead to absurd results “because it is applied with
circumspection by prosecutors.”
The Constitutional Court
rejected this argument as follows at paragraphs 22-23:
“
First,
there is nothing to suggest that prosecutors in general and around
the country agree with the view or, if they do, that it
is invariably
implemented, if a general directive to that effect has been issued,
it has not been mentioned in argument. In the
second instance, even
if one were to accept that prosecutors adhere to such a policy there
is no evidence that the police do so.”
97.In
casu there is also no evidence of any guidance or directive issued to
prosecutors to ensure that the impugned provisions are
implemented
with circumspection. According to the evidence there is no
legislative or policy guidance provided to the officials
tasked with
exercising this specific prosecutorial discretion. Furthermore, the
police are tasked with deciding whether a matter
merits investigation
or arrest, and they are not provided with any guidance whatsoever in
the exercise of this general discretion
when it comes to the
particular offences created by the impugned provisions. In my view
the existence of prosecutorial discretion
does not save the impugned
provisions from unconstitutionality.
98.
Having
come to the conciusion that sections 15 and 16 do indeed limit a
number of constitutional rights of children, the question
to be
answered is whether the limitations are reasonable and justifiable in
terms of section 36 of the Constitution. In this regard
there was a
burden on the first respondent to establish that the limitations are
lawful. See Moise v Greater Germiston Transitional
Local Council:
Minister of Justice and Constitutional Development Intervening
(Women’s Legal Centre As Amicus Curiae)
[2001] ZACC 21
;
2001 (4) SA 491
(CC) at
paragraph 31; Minister of Home Affairs v National Institute for Crime
Prevention and the Reintegration of Offenders (NICRO)
and Others
[2004] ZACC 10
;
2005
(3) SA 280
(CC) at paragraphs 33-37; Phillips and Another v Director
of Public Prosecutions, Witwatersrand Local Division, and Others
[2003] ZACC 1
;
2003
(3) SA 345
(CC) at paragraph 20.
99.
Section 36(1) of the Constitution
provides as follows:
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is
reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including-
(a)
the nature of the right;
(b)
the importance of the purpose of the
limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and
its purpose; and
(e)
less restrictive means to achieve the
purpose.”
100.
The respondents submitted that the
rights impacted upon by the impugned provisions are capable of
limitation, given the immaturity
and vulnerability of adolescents as
bearers of sexual and personal autonomy rights. It was submitted that
when weighing the limitation
of the child's sexual autonomy rights as
against the governmental objective sought to be achieved by the
impugned provisions, it
becomes plain that such limitation is
reasonable and justifiable. The respondents accepted that it is a
common and normal part
of sexual development for children to explore
and experiment in sexual behaviours with their peers. However, so it
was submitted,
sexual experimentation must be appropriate to the
child's age. That means, according to the respondents, that apart
from mutual
agreement and actions being non-coercive, the
participants must have the requisite maturity to participate in the
act and to appreciate
fully the consequences of their actions. It was
submitted that a 15-year-old cannot appreciate fully the consequences
of sexual
penetration and that, accordingly, scrutiny is justifiable
in such circumstances. For that reason the legislator took a policy
decision to effect same by way of a prosecutorial discretion.
101.
The respondents further submitted that
the impugned provisions do not seek to completely take away the
personal and sexual autonomy
rights of adolescents. They seek merely
to delay, and in some instances provide scrutiny to, sexual
behaviours among adolescents
with a view to protecting them due to
their immaturity and vulnerability. It was further submitted that the
limitation is not serious
but merely a minor infringement of the
rights concerned and that it does not have grave and irreparable
effects on the rights concerned.
102.
The respondents consequently submitted
that the law that infringes the rights in the present matter, are
reasonable and justifiable
in an open and democratic society based on
freedom and equality. They aim to protect the child by deterrence and
prevention but
at the same time recognise adolescent sexual
experimentation.
There
is consequently a rational connection between the means and the
objective sought to be achieved.
103.
From the
evidence submitted to this court and the submissions on behalf of the
parties and the amici curiae it is abundantly clear
that these
submissions cannot be accepted. The evidence showed that the impugned
provisions constitute a severe limitation of important
constitutional
rights. Furthermore, that they are not rationally related to the
purpose they seek to achieve and that they are
overbroad and that
there are less restrictive means available to achieve the purpose. I
do not deem it necessary to refer to the
other factors mentioned in
section 36 of the constitution.
104.
Regarding the relationship between the
limitation and the purpose of the impugned provisions, the following
appears to be the purpose
of the criminal offences according to the
respondents: to protect children from predatory adults, sexual
predators, persons who
sexually abuse children, and perpetrators of
sexual abuse; to recognise that adolescent sexual experimentation
between peers is
a reality; to protect children from the criminal
justice system; to provide certainty as regards the age of engaging
in sexual
behaviour; to regulate and correct the sexual behaviour of
children; and to promote “healthy sexual behaviour within
healthy
developmental norms”.
105.
I agree with the submission on behalf of
the applicants that the impugned provisions are not rationally
connected to any of these
purposes. The criminalisation of consensual
sexual conduct between adolescents bears no relationship to the
purpose of protecting
children from predatory adults and abusers.
This purpose is comprehensively served by provisions of the Act which
are not under
attack. Very little, if anything, is added to the
protection of children by criminalising consensual sexual conduct
between children.
On the contrary, as has been demonstrated by the
evidence, children charged under the impugned provisions will be
severely harmed.
106.
The provisions also bear no rational
relationship to the stated purpose of protecting children from the
criminal justice system.
They will result in children being
needlessly exposed to a system which would cause trauma and harm.
Consequently, far from recognising
that sexual experimentation
between adolescents is a reality and not necessarily harmful, the
provisions render all such experimentation
a criminal offence, and
make adolescents who engage in it subject to police investigation,
official scrutiny, diversion, and the
whims of prosecutorial
discretion.
107.
The impugned provisions are also not
needed to provide certainty as regards the age of consent. The age of
16 will remain the age
of consent, and all that will change if the
relief were to be granted, is that adolescents will not be able to be
prosecuted for
engaging in consensual sexual conduct with one
another. In this regard it is important to note that the respondents
eventually
conceded that the State has no legitimate interest in
preventing the "healthy sexual behaviour" referred to by
the applicant's
experts but that it is only unsafe sexual conduct
that is sought to be targeted. "Healthy sexual behaviour"
was described
as “behaviour that is mutually consensual,
wanted/desired, non-violent, safe (in terms of using methods to
minimise the risks
of STI transmission and pregnancy), and for which
the individual feeis emotionally and physically ready for the
particular behaviour
and its potential consequences.”
108.
However, such “healthy sexual
behaviour” is criminalized by sections 15(1) and 16(1) of the
Act. I agree with the submission
on behalf of the applicants that
this is not only one of the anomalies that the Act creates but that
it lies at the heart of the
conduct that the sections criminalise. If
the State has no legitimate interest in preventing this type of
conduct and yet the sections
render it a criminal offence, then it is
manifest that the impugned provisions are overbroad. For these
reasons the impugned provisions
cannot satisfy the “less
restrictive means” requirement of section 36(1 )(e) and can
therefore not be permissible limitations
of the rights concerned.
109.
It needs to be mentioned that the
purpose of the impugned provisions which was mentioned in passing,
namely that of regulation and
correction of children's behaviour, has
for all practical purposes fallen by the wayside. The bulk of the
evidence did not support
this proposition and it was eventually
accepted on behalf of the respondents that there is no evidence that
the present provisions
would in fact deter, regulate or correct the
adolescent sexual conduct concerned. There was no evidence to show
that the existence
of the impugned provisions will be effective in
protecting children or deterring them from engaging in consensual
sexual conduct.
Clearly, any form of sexual conduct, even consensual
conduct, will hold certain risks. What has not been shown, however,
is that
the existence of the impugned provisions will in any way
ameliorate these risks. In fact, the bulk of the evidence indicates
that
the impugned provisions, and more particularly the offences that
had
been
created, will exacerbate the harm and risk to adolescents as
discussed above, will undermine support structures and prevent

children from seeking help and will put them further at the risk. For
these reasons also there is thus no relation between the
limitation
and its purpose as envisaged by section 36(1 )(d) of the Constitution
and consequently the provisions fall to be struck
down.
110.
In regard to the factor mentioned in
section 36(1 )(e) of the Constitution namely that of less restrictive
means to achieve the
purpose, the following may be briefly referred
to. A provision which infringes constitutional rights must be
“appropriately
tailored” and “narrowly focused”.
See Islamic Unity Convention v Independent Broadcasting Authority and
Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC) at paragraphs 51; South African National
Defence Union v Minister Of Defence And Another
1999 (4) SA 46
9 (CC)
at paragraph 18.
111.
As had been mentioned above, the
impugned offences are extraordinarily broad. They apply to a wide
range of consensual sexual conduct
between children, ranging from
kissing on the mouth to penetration. The criminalisation of this
conduct goes beyond what is necessary
to achieve the primary purpose
of the provisions, as mentioned above. Moreover, much of the conduct
which is criminalised is committed
by huge numbers of normal
adolescents, does not harm anyone, and according to the undisputed
evidence before this Court, is developmentally
normative and healthy.
112.
The use of damaging and draconian
criminal law offences to attempt to persuade adolescents to behave
responsibly is a disproportionate
and ineffective method
which
is not suited to its purpose. There are plainly less restrictive
means available for achieving the purposes sought to be pursued.

Other offences which are not under challenge in this matter serve the
purpose of protecting children from predatory adults, and
the
salutary aim to encourage adolescents to lead healthy and responsible
sexual lives can be addressed by the other methods mentioned
in the
evidence that do not involve criminalisation of consensual sexual
conduct between adolescents.
113.
Having come to the conclusion that the
impugned provisions are invalid, the next question to be answered is
what the remedy should
be. There are generally three possible
remedies for the breach of a constitutional right namely, severing
words from a provision,
reading words into a provision, and striking
down the provision. In deciding whether words should be read into a
provision or severed
from it, the two considerations to be kept in
mind are the need to afford appropriate relief to litigants and the
need to respect
the separation of powers. In National Coalition for
Gay and Lesbian Equality and Others v Minister of Home Affairs and
Others
2000
(2)
SA
1
(CC) the court said the following at paragraph 74:
“
In
deciding whether words should be severed from a provision or whether
words should be read into one, a Court pays careful attention
first,
to the need to ensure that the provision which results from severance
or reading words into a statute is consistent with
the Constitution
and its fundamental values and. secondly, that the result achieved
would interfere with the iaws adopted by the
Legislature as little as
possible."
See
also Zondi v MEC for Traditional and Local Government Affairs and
Others
2005 (3) SA 589
(CC) at paragraph 122
114.
In prayer 1 of the notice of motion, the Applicants sought an order
declaring that section 15(1) and 56(2)(b) and the definition
of
“sexual penetration” in section 1 of the Act are
unconstitutional to the extent that they:
114.1.
Criminalise a child (A) who is between
twelve and sixteen years old (12 to 15 years of age) for engaging in
an act of consensual
sexual penetration with another child (B) who is
between twelve and sixteen years old (12 to 15 years of age); and
114.2.
Criminalise a child (A) who is between
sixteen and eighteen years old (16 and 17 years of age) for engaging
in an act of consensual
sexual penetration with a child (B) who is
younger than sixteen years of age and is two years or less younger
than A.
115.
To
remedy the defect, the applicants sought in prayer 2 of the notice of
motion an order of reading in that would ensure that the
offence
created by section 15 does not apply to such children. This can be
achieved by reading the following words into the end
of section
15(1):
“
.
unless at the time of the sexual penetration (i) A is a child; or
(ii) A is younger than eighteen years old and B is two years
or less
younger than A at the time of such acts.
”
116.
In prayer 3 of the notice of motion, the
Applicants sought an order declaring that sections 16 and 56(2)(b) of
the Act and the definition
of “sexual violation” in
section 1 of the Act are unconstitutional to the extent that they
criminalise a child (A)
who is between twelve and sixteen years old
(12 to 15 years of age) for engaging in an act of consensual sexual
violation with
another child (B) who is between twelve and sixteen
years of age (12 to 15 years of age), where there is more than a two
year age
difference between A and B.
117.
To remedy the defect, the applicants in
prayer 4 of the notice of motion sought an order of reading in that
would ensure that the
offence created by section 16 does not apply to
such children. This can be achieved by reading the following words
into the end
of section 16(1):
“
unless
at the time of the sexual violation A is a child."
118.
I agree with the applicants' submission
that the reading in of this form is a competent remedy to cure the
defects in the provisions.
Such a reading in retains the offences
created by sections 15 and 16 to the extent that they criminalise
adults. They therefore
allow the provisions to serve their primary
purpose, namely, to protect children from predatory adults. Any
lesser form of remedy
would fail to ensure that the provisions are
consistent with the Constitution and its fundamental values. To allow
Parliament to
consider and amend the provisions, as was submitted by
the respondents, would also not be in the interest of justice and
more particularly
not in the interest of the thousands of adolescents
across the country who are subjected to the aforesaid
unconstitutional and
invalid criminal prohibitions on a daily basis.
119.
I also agree with the submission that
this remedy complies with the two requirements for reading in laid
down in the National Coalition
and Zondi cases referred to above.
First, it ensures that the impugned provisions are consistent with
the Constitution and its
fundamental values. It does so in this case
by exempting children who engage in consensual sexual conduct with
other children from
the offences. Secondly, it interferes with the
laws adopted by the legislature as little as possible. It does so by
leaving the
core of the offences created intact, in that the
provisions of sections 15 and 16 criminalising adults for engaging in
consensual
sexual conduct with children, remain unaltered.
120.
In paragraph 5 of the Notice of Motion
the applicants challenged the constitutional validity of three
further provisions of the
Act which were intended to be protective of
child victims, but which, in conjunction with the over breadth of the
impugned provisions,
serve to exacerbate and intensify the negative
effects of the section 15(1) and section 16(1) offences upon
adolescents. They are
sections 50(1 )(a)(i), 50(2)(a)(i) and section
54(1 )(a) of the Act.
121.
The relief claimed in paragraph 5 of the
Notice of Motion, however, only becomes relevant as a lesser or
alternative form of relief
in the event of the main attack on
sections 15 and 16 failing. Having come to the conclusions that I
have regarding the invalidity
of the impugned provisions, the
constitutional validity of these three sections need not be dealt
with and decided individually.
122.
Regarding costs there is no reason why
the usual principles applicable in constitutional matters of this
sort, if the applicants
succeed, should not be applied in casu.
Having regard to all the relevant considerations, the costs should
also include the costs
of two counsel.
123.
In the result the following order is
made:
1.
It is hereby declared that sections 15
and 56(2)(b) of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of
2007 ("the Act”) and the
definition of “sexual penetration” in section 1 of the
Act are inconsistent with
the Constitution of the Republic of South
Africa. 1996 ('‘the Constitution”) and invalid, to the
extent that they:
1.1.
criminalise a child (‘A’)
who is between twelve and sixteen years of age for engaging in an act
of consensual sexual
penetration with another child (‘B’)
between twelve and sixteen years of age;
1.2.
criminalise a child (‘A’)
who is between sixteen and eighteen years of age for engaging in an
act of consensual sexual
penetration with a child (’B ) who is
younger than sixteen years of age and is two years or less younger
than A.
2.
It is hereby declared that, to remedy
the defects set out in paragraph 1 above, section 15 of the Act shall
read as though it provides
as follows:
“
A
person (‘A’) who commits an act of sexual penetration
with a child (‘B’) is, despite the consent of B
to the
commission of such an act, guilty of the offence of having committed
an act of consensual sexual penetration with a child,
unless at the
time of the sexual penetration (i)
A
is a child: or (ii) A is younger than eighteen years old and B is two
years
or less younger than A at the time of such acts. ''
3.
It is hereby declared that sections 16
and 56(2)(b) of the Act and the definition of “sexual
violation” in section 1
of the Act are inconsistent with the
Constitution and invalid, to the extent that they criminalise a child
(‘A’) who
is between twelve and sixteen years of age for
engaging in an act of consensual sexual violation with another child
('B') between
twelve and sixteen years of age. where there is more
than a two year age difference between A and B.
4.
It is hereby declared that, to remedy
the defects set out in paragraph 3 above section 16 of the Act shall
read as though it provides
as follows:
"A
person (‘A ’) who commits an act of sexual violation with
a child ('B') is, despite the consent of B to the
commission of such
an act, guilty of the offence of having committed an act of
consensual sexual violation with a child, unless
at the time of the
sexual violation A is a child.
5.
The applicants' costs of the application
shall be paid by the first respondent and the second respondent
jointly and severally,
which costs shall include the costs of two
counsel.
6.
The orders in paragraphs 1, 2, 3 and 4
above are hereby referred to the Constitutional Court in terms of
section 172(2) of the Constitution.
7.
The Registrar of this Court is requested
and directed to comply with the Registrar's obligation in terms of
Rule 16 of the Rules
of the Constitutional Court to lodge with the
Registrar of the Constitutional Court a copy of this order within 15
days of date
hereof.
C.P.
RABIE
JUDGE
OF THE HIGH COURT
4 January 2013