Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT 12/13) [2013] ZACC 35; 2013 (12) BCLR 1429 (CC); 2014 (2) SA 168 (CC); 2014 (1) SACR 327 (CC) (3 October 2013)

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[2013] ZACC 35
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Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT 12/13) [2013] ZACC 35; 2013 (12) BCLR 1429 (CC); 2014 (2) SA 168 (CC); 2014 (1) SACR 327 (CC) (3 October 2013)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 12/13
[2013] ZACC 35
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
JUSTICE ALLIANCE OF SOUTH AFRICA
................................
First Amicus Curiae
TRUSTEES FOR THE TIME BEING OF THE
WOMEN’S LEGAL CENTRE TRUST
.....................................
Second
Amicus Curiae
TSHWARANANG LEGAL ADVOCACY CENTRE
..................
Third
Amicus Curiae
Heard on : 30 May 2013
Decided on : 3 October 2013
JUDGMENT
KHAMPEPE J (Mogoeng CJ, Bosielo AJ, Froneman J, Jafta J, Mhlantla AJ,
Nkabinde J, Skweyiya J and Zondo J concurring):
Introduction
Children are precious members of our society and
any law that affects them must have due regard to their
vulnerability and their
need for guidance. We have a duty to ensure
that they receive the support and assistance that is necessary for
their positive
growth and development. Indeed, this Court has
recognised that children merit special protection through
legislation that guards
and enforces their rights and liberties.
1
We must be careful, however, to ensure that, in
attempting to guide and protect children, our interventions do not
expose them
to harsh circumstances which can only have adverse
effects on their development.
This
is an application for confirmation of a ruling by the North Gauteng
High Court, Pretoria (High Court) that certain provisions
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
2
relating to the criminalisation of consensual
sexual conduct with children of a certain age, are constitutionally
invalid. In
terms of section 172(2)(a) of the Constitution, the High
Court’s ruling has no force unless and until confirmed by this
Court.
At
the outset it is important to emphasise what this case is not about.
It is not about whether children should or should not
engage in
sexual conduct. It is also not about whether Parliament may set a
minimum age for consensual sexual conduct. Rather,
we are concerned
with a far narrower issue: whether it is constitutionally
permissible for children to be subject to criminal
sanctions in
order to deter early sexual intimacy and combat the risks associated
therewith.
Parties
The
first applicant is The Teddy Bear Clinic for Abused Children, a
not-for-profit company that provides a wide range of medical
and
related services to abused children and coordinates programmes to
divert young sex offenders from the criminal justice system.
The
second applicant, likewise a not-for-profit company, is RAPCAN, an
acronym for “Resources Aimed at the Prevention of
Child Abuse
and Neglect”. It is dedicated to the prevention of child
victimisation and the promotion of children’s
rights, which it
does by, amongst other things, developing best practices in relation
to child victims and witnesses in the criminal
justice system and by
advocating legal and policy reforms to protect children from abuse,
exploitation and neglect.
Both
applicants have over twenty years’ experience in attempting to
curb the scourge of sexual abuse of children, and in
dealing with
its consequences.
The
first respondent is the Minister of Justice and Constitutional
Development (Minister), cited in his capacity as the Minister

responsible for the administration of the Sexual Offences Act. The
second respondent is the National Director of Public Prosecutions

(NDPP), cited because of the powers and obligations conferred on
that office by the Sexual Offences Act.
The
first amicus is the Justice Alliance of South Africa (JASA). JASA
has an interest in this matter by virtue of its aim to uphold
and
develop Judeo-Christian values, the Constitution and the law of
South Africa by means of litigation.
The
Women’s Legal Centre Trust and the Tshwaranang Legal Advocacy
Centre were admitted to make joint submissions as the
second and
third amici. Both organisations were established in order to advance
the human rights of women in South Africa.
The scheme of the Sexual Offences Act
The
Act, in force with effect from 16 December 2007, represents a
comprehensive legislative reform of both statutory and common-law

criminal liability in relation to the commission of sexual offences.
As set out in the introductory text of the statute, its
purpose is
to
¾
“
comprehensively
and extensively review and amend all aspects of the laws and the
implementation of the laws relating to sexual offences,
and to deal
with all legal aspects of or relating to sexual offences in a single
statute, [including] by . . . enacting comprehensive
provisions
dealing with the creation of certain new, expanded or amended sexual
offences against children and persons who are mentally
disabled . . .
despite some of the offences being similar to offences created in
respect of adults as the creation of these offences
aims to address
the particular vulnerability of children and persons who are mentally
disabled in respect of sexual abuse or exploitation;
eliminating the
differentiation drawn between the age of consent for different
consensual sexual acts and providing for special
provisions relating
to the prosecution and adjudication of consensual sexual acts between
children older than 12 years but younger
than 16 years; . . . [and]
creating a duty to report sexual offences committed with or against
children or persons who are mentally
disabled”.
This case is primarily concerned with Part 1 of
Chapter 3 of the Sexual Offences Act, which criminalises the
performance of certain
consensual sexual acts (by adults and
children) with children who are between 12- and 16-years old
(adolescents).
3
Section 15 deals with the offence of
“statutory rape”:
“
Acts
of consensual sexual penetration with certain children (statutory
rape)
15 (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.”
The
Act gives the term “sexual penetration” a wide
definition, including—
“
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”.
Section
16 of the Act imposes criminal liability for committing “statutory
sexual assault”:
“
Acts
of consensual sexual violation with certain children (statutory
sexual assault)
16 (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.”
The
Act in turn defines “sexual violation” in very broad
terms to include—
“
any
act which causes
¾
(a) direct or indirect contact
between the
¾
(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
¾
(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
¾
(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”.
Although
in terms of the Constitution,
4
and in relation to most provisions of the Act, a
“child” is any person under the age of 18 years, for the
purposes
of sections 15 and 16 of the Sexual Offences Act a “child”
is defined as “a person 12 years or older but under
the age of
16 years”.
5
In other words, statutory rape or statutory
sexual assault can only be perpetrated against a child between the
ages of 12 and
15 years (inclusive).
Although
not contained in Part 1 of Chapter 3 of the Sexual Offences Act,
section 56(2) and (3) introduces statutory defences
that are
relevant to a charge of statutory rape or statutory sexual assault:
“
(2)
Whenever an accused person is charged with an offence under
¾
(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; or
(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.
(3) The provisions of subsection
(2)(a) do not apply if the accused person is related to the child
within the prohibited incest
degrees of blood, affinity or an
adoptive relationship.”
Certain
other sections of the Sexual Offences Act are relevant for present
purposes. Chapter 6 of the Act establishes the National
Register for
Sex Offenders (Register), a compendium containing, amongst other
things, the particulars of persons convicted of
any sexual offence
against a child.
6
In terms of section 50(2)(a)(i), a court
that convicts a person of a sexual offence against a child “must
make an order
that the particulars of the person be included in the
Register.”
Finally,
section 54 of the Sexual Offences Act creates an obligation and an
offence in relation to the reporting of, or failure
to report,
sexual offences against children:
“
(1)
(a) A person who has knowledge that a sexual offence has been
committed against a child must report such knowledge immediately
to a
police official.
(b) A person who fails to report
such knowledge as contemplated in paragraph (a), is guilty of 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.”
The import of the impugned provisions
Before
proceeding to consider the challenge currently before us, it would
be appropriate to set out the meaning of sections 15
and 16 of the
Sexual Offences Act in practical terms.
Section
15(1) creates the offence of statutory rape in relation to the
commission of “sexual penetration”. “Sexual

penetration” includes vaginal, anal and oral sexual
intercourse, as well as some forms of masturbation by another
person.
Statutory rape is committed if (a) an adult or a child who is 16
years or older engages in consensual sexual penetration with
an
adolescent; or (b) adolescents engage in consensual sexual
penetration with each other. In the case of (b), if a prosecution
is
instituted for a charge of statutory rape, both of the children
involved must be prosecuted. Put differently, if two adolescents

engage in sexual penetration with one another, each will be guilty
of having statutorily raped the other.
Section
16(1) creates the offence of statutory sexual assault in relation to
the commission of “sexual violation”.
That term, with
its broad references to “direct or indirect contact”,
includes some forms of masturbation by another
person, petting,
kissing and hugging.
Similar to the case of statutory rape, statutory sexual assault is
committed if (a) an adult or a child who is 16 years or older

engages in consensual sexual violation with an adolescent; or (b)
adolescents engage in consensual sexual violation with each
other.
In the case of (b), if a prosecution is instituted for a charge of
statutory sexual assault, both of the children involved
must be
prosecuted.
A
“close-in-age” defence is available to a child who has
been charged with statutory sexual assault, but not to a
child who
has been charged with statutory rape.
7
In terms thereof, it is a valid defence for the accused child “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.” Because
the
close-in-age defence is located in section 56 of the Sexual Offences
Act (which has the same definition of “child”
as the
Constitution), it seems that the defence is available to persons
under the age of 18 years.
8
If sexual violation has been committed and the parties have an age
difference of more than two years between them, no defence
lies. In
other words, if a 12-year old and 15-year old engage in kissing or
petting or mutual masturbation, both commit an offence
in terms of
section 16. Furthermore, if the 15-year old is prosecuted, the
12-year old must be prosecuted too, and neither
may claim the
close-in-age defence.
High Court proceedings
In
the High Court, the applicants argued that, on the common-cause
evidence before the Court, the impugned provisions of the Sexual

Offences Act infringe children’s constitutional rights to
dignity,
9
privacy
10
and bodily and psychological integrity,
11
as well as their right in terms of section 28(2)
of the Constitution to have their best interests treated as being of
paramount
importance in all matters concerning them.
12
They contended that these infringements could not
be justified in terms of section 36 of the Constitution because the
expert evidence
tendered demonstrated that the provisions were not
rationally related to their stated purposes, and because less
restrictive
means could have been employed by the state to achieve
those purposes.
While
the NDPP elected to abide the decision of the High Court, the
Minister actively opposed the declaratory relief sought by
the
applicants.
The
High Court (per Rabie J) upheld the applicants’ challenge and
ruled that the impugned provisions violated all of the
rights cited.
Further, the High Court held that these violations were not
justifiable in terms of section 36 of the Constitution.
It therefore
made the following order:
“
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
.’
”
(Emphasis
in original.)
Submissions in this Court
While
the applicants acknowledge that the impugned provisions were enacted
to protect children, they contend that the breadth
and formulation
of those provisions harm the very children they were intended to
safeguard. Sections 15 and 16 of the Sexual
Offences Act, so it is
argued, have a series of harmful effects. These effects arise
largely from the exposure of minors to the
harshness of the criminal
justice system, and the chilling effect of such exposure on the
development of a proper understanding
of, and healthy attitudes to,
sexual behaviour. The impact of these provisions is heightened, in
the applicants’ view,
when considered in conjunction with the
reporting obligations contained in section 54(1)(a) and the
provisions regarding
the Register contained in Chapter 6 of the Act.
The
applicants submit that these adverse consequences show that sections
15 and 16 of the Sexual Offences Act infringe a range
of children’s
constitutional rights, namely their rights to human dignity, privacy
and bodily and psychological integrity,
as well as the
best-interests principle.
According
to the applicants the limitations of these fundamental rights fail
to meet the requirements of section 36 of the
Constitution
because the limitations are not properly related to the purposes
they seek to achieve. Furthermore, so the applicants
contend, there
are less restrictive means available to achieve these purposes.
The
respondents argue that the impugned provisions do not infringe any
of the rights alleged by the applicants. Rather, the statutory

prohibitions function to advance and protect those rights by
delaying the choice to engage in consensual sexual activities.
However, should the Court find that such infringements exist, the
respondents contend that they are reasonable and justifiable
within
the meaning of section 36. In this regard the respondents emphasise
that the limitation of children’s rights by
means of
prohibitions similar to those contained in sections 15 and 16 of the
Sexual Offences Act is not uncommon in other open
and democratic
societies.
In
addition, the respondents argue that the prohibitions have been
narrowly tailored and may only be implemented after due
consideration
of the affected child’s interests. The
prohibitions must be put into practice together with other
legislative instruments,
such as the Child Justice Act
13
and the Children’s Act,
14
as well as other measures that protect the
interests of the child, such as the diversion of children from the
formal criminal
justice system in certain circumstances.
15
These factors, so the argument goes, demonstrate
that there are no other less restrictive means to achieve the
purpose of the
prohibitions. Furthermore, the respondents contend
that there is a close relationship between the statutory
prohibitions and
the purpose sought to be achieved by the Act:
protecting children from the risks associated with sexual acts even
where the acts
are consensual.
If
this Court upholds any of the applicants’ attacks, the
respondents submit that it would be just and equitable to suspend

the order of invalidity and direct Parliament to remedy the defect
identified. They argue that the remedy of reading-in granted
by the
High Court constitutes a judicial choice on a matter of policy,
which would require consideration of facts and other factors
which
are not readily available to this Court.
JASA
broadly supports the stance adopted by the applicants in relation to
sections 16, 50(1)(a)(i), 50(2)(a)(i) and 54(1)(a) of
the Sexual
Offences Act.
16
However, JASA submits that section 15, save
for the proviso in subsection 2(a) which makes the prosecution of
both children
obligatory, is constitutionally sound.
The
defence of section 15 of the Act is based on the best-interests
principle. JASA submits that allowing sexual penetration between

children is not in the best interests of the child because children
are unable to give informed consent. The freedom to engage
in a
prospectively perilous activity (such as sexual penetration) in
circumstances where the capacity for informed consent is
absent is
not a freedom that the law should recognise.
17
In
addition to the infringements of rights relied upon by the
applicants, the second and third amici argue that the right to
equality guaranteed in section 9 of the Constitution is infringed,
as the impugned provisions disproportionately affect girls.

Accordingly, the provisions indirectly discriminate on the listed
ground of sex. Furthermore, the second and third amici submit
that
the right of girls to access health care services in terms of
section 27 of the Constitution, and reproductive health care
(in the
form of terminations of pregnancy) in particular, is violated.
Issues for determination
The
primary question for determination is whether the impugned sections
are inconsistent with the Constitution insofar as they
impose
criminal liability on children for engaging in consensual sexual
conduct. Answering this question requires us to investigate
whether
the impugned provisions limit any fundamental rights. If so, the
respondents are required to demonstrate that the limitations
are
reasonable and justifiable in an open and democratic society. This
application thus raises three broad issues for determination:
Are
any rights limited by the impugned provisions?
If
so, are these limitations reasonable and justifiable in terms of
section 36 of the Constitution?
If
not, what is the appropriate remedy?
The rights of children
Before
considering the alleged infringements of the aforementioned
constitutional rights, I wish to explicate the manner in which

courts should approach children’s rights in general. In my
view, the correct approach is to start from the premise that

children enjoy each of the fundamental rights in the Constitution
that are granted to “everyone” as individual bearers
of
human rights. This approach is consistent with the constitutional
text, and gives effect to the express distinction that the
Bill of
Rights makes between granting rights to “everyone” on
the one hand, and to adults only on the other hand.
For instance,
the right to vote is expressly limited to adult citizens in terms of
section 19(3) of the Constitution, whereas
there is no such
limitation in relation to the rights to dignity and privacy.
18
If
we determine that constitutional rights have been limited, we are
then required to engage in a justification analysis in terms
of
section 36.
19
Of course, there may be legitimate reasons for
limiting a child’s fundamental rights in particular
circumstances, due to
the stage of his or her development and in
order to protect him or her. However, this determination does not
occur at the stage
of defining the content of a right or determining
whether a right has been infringed. Rather, we make this
determination when
deciding whether the particular limitation is
reasonable and justifiable in our constitutional democracy.
This approach is consistent with the
jurisprudence of this Court. For example, in
S
v M (Centre for Child Law as
Amicus
Curiae
)
20
the majority of this Court endorsed the approach
that children are individual rights-bearers rather than mere
extensions of their
parents. Sachs J described this understanding of
children’s rights in evocative terms:
“
Every
child has his or her own dignity. If a child is to be
constitutionally imagined as an individual with a distinctive
personality,
and not merely as a miniature adult waiting to reach
full size, he or she cannot be treated as a mere extension of his or
her parents,
umbilically destined to sink or swim with them. The
unusually comprehensive and emancipatory character of section 28
presupposes
that in our new dispensation the sins and traumas of
fathers and mothers should not be visited on their children.
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.”
21
Moreover, this approach is consistent with the
principle that courts should first give a broad construction to
rights, and then
determine whether a particular limitation is
reasonable and justifiable in accordance with the framework
established by section 36
of the Constitution. This is
preferable to construing rights narrowly and thereby depriving
individuals of “the full measure
of the fundamental rights and
freedoms” conferred by our supreme law.
22
Evidence submitted
Before
evaluating the merits of the case presented by the applicants, I
consider it appropriate to give an overview of the factual
evidence
they submitted in support of their challenge. It should be noted
that the respondents did not seek to present independent
evidence of
their own. Rather, they contented themselves with proffering
alternative interpretations of the applicants’
evidence, and
with basing their remaining contentions on legal and inferential
arguments.
23
The
applicants have placed reliance on a report (expert report) compiled
by the late Professor Alan Flisher, a child psychiatrist
at the
University of Cape Town, and Ms Anik Gevers, a clinical
psychologist specialising in child mental health at the same

university.
24
The expert report was compiled to provide information about the
sexual development of children and the potential impact of sections

15 and 16 of the Sexual Offences Act in this regard. Its focus is on
the impact of those provisions on adolescents. The respondents
have
neither impugned the relevance and the reliability of the expert
report, nor have they sought to challenge its findings.
I summarise
the relevant findings contained in the expert report below.
South
African children reach physiological sexual maturity during
adolescence (between the ages of 12 and 16 years). They undergo

various and significant changes in their transition to adulthood.
Their experiences during this transformative period have

long-lasting effects that shape their adult lives.
During adolescence children ordinarily engage in some form of sexual
activity, ranging from kissing to masturbation to intercourse.

Exploration of at least some of these activities is “potentially
healthy if conducted in ways for which the individual
is emotionally
and physically ready and willing.” What is of utmost
importance is ensuring that children are appropriately
supported by
the adults in their lives, to enable them to make healthy choices.
This is particularly so given the awkwardness
and embarrassment
children often feel when discussing sexual relations with adults. If
children are not made to feel that there
are safe environments
within which they can discuss their sexual experiences, they will be
stripped of the benefit of guidance
at a sensitive and developmental
stage of their lives. Such guidance is particularly important given
the “high rates of
negative experiences and consequences of
sexual behaviour” unearthed by the expert report.
The data reviewed by Flisher and Gevers “indicate that the
majority of South African adolescents between the ages of 12
and 16
years are engaging in a variety of sexual behaviours as they begin
to explore their sexuality.” Sexual experiences
during
adolescence, in the context of some form of intimate relationship,
are “[n]ot only . . . developmentally significant,
they are
also developmentally normative.”
25
Finally, Flisher and Gevers opine on the various social and
psychological effects of the impugned provisions on children’s

development. First, children charged under sections 15 or 16 will
feel a “mixture of shame, embarrassment, anger, and regret”

which will “have an adverse impact on the individual and his
or her development”. These feelings may also lead to
the
development of a generally negative attitude to sexual relations.
Second, these feelings are “likely to inhibit the
individual
from seeking help for issues about sex . . . in order to avoid the
emotional distress and interpersonal or social
problems, adolescents
will avoid seeking help or being open about issues with their
sexuality [such that] existing problems will
grow and future
problems are unlikely to be prevented.” Third, far from
achieving the positive outcome of deterring the
harmful effects
associated with early sexual conduct, the impugned provisions are
likely to “increase adolescents’
risk for negative
experiences and outcomes. . . . Sections 15 and 16 of the Act
contribute more to silencing and isolating adolescents,
which makes
unhealthy behaviour and poor developmental outcomes more likely.”
Finally, children’s reticence in seeking
assistance will have
a corollary effect on the ability of adults to provide the necessary
guidance and support. As Flisher and
Gevers explain:
“
Caregivers
. . . and institutions and organisations . . . are unable to help
because they cannot promote behaviour that is illegal
and they are
legally obligated to report sexual offences involving children and
young adolescents. . . . Therefore, they cannot
legally offer the
adequate and appropriate support and guidance to promote healthy
sexual development, which leaves adolescents
to navigate the complex
issues with only the support of their equally immature peers. . . .
When adolescents are left to sort through
sexuality issues and
choices among themselves, they tend to engage in more risky
behaviours for a variety of reasons including
poor decision-making
skills and power imbalances in a relationship.”
This is the uncontradicted expert evidence which must inform our
evaluation of the challenges to sections 15 and 16 of the Sexual

Offences Act.
Are any rights limited by the impugned provisions?
For
the reasons that follow I find that sections 15 and 16 of the Sexual
Offences Act infringe adolescents’ rights in terms
of sections
10, 14 and 28(2) of the Constitution. It is therefore unnecessary to
consider the additional infringements alleged
by the applicants and
the second and third amici.
At
this stage it is worthwhile clarifying the nature of the challenge
put forward by the applicants. The applicants have opted
for a
two-pronged approach. On the one hand, they contend that the
impugned provisions cannot be saved insofar as they criminalise

adolescents for engaging in consensual sexual conduct. This is the
primary focus of their submissions. On the other hand, they
contend
that, while it is permissible to criminalise 16- and 17-year olds
for engaging in consensual sexual conduct with adolescents,
the
former should have available to them a close-in-age defence
26
in order to ameliorate some of the undesirable
consequences of such criminalisation. I shall deal with the
arguments regarding
the close-in-age defence at a later point in
this judgment.
Parliament has clearly determined that a particular group of
children – adolescents – are vulnerable and merit

special protection from sexual predation, by both adults and other
children. In these proceedings the applicants have not challenged

the legislative decision to differentiate between different groups
of children (adolescents on the one hand, and 16- and 17-year
olds
on the other). Furthermore, and as is apparent from the summary
above, the expert evidence before us relates only to the
effects of
the impugned provisions on adolescents. We have not heard argument
or been presented with further evidence as to why
the conclusions
contained in the expert report should extend to 16- and 17-year
olds. Accordingly, the findings regarding the
unjustifiable
limitation of rights in paragraphs [52] to [100] below are limited
to the constitutional rights of adolescents.
Human dignity
Section 10 of the Constitution provides that
“[e]veryone has inherent dignity and the right to have their
dignity respected
and protected.” While dignity is a
cornerstone of our Constitution, it is not easily defined, at least
in legal terms.
27
Suffice it to say that dignity recognises the
inherent worth of all individuals (including children) as members of
our society,
as well as the value of the choices that they make. It
comprises the deeply personal understanding we have of ourselves,
our
worth as individuals and our worth in our material and social
context.
28
This Court has found that children’s
dignity rights are of special importance
29
and are not dependent on the rights of their
parents.
30
Nor is the exercise by children of their dignity rights held in
abeyance until they reach a certain age.
The
respondents submit that the statutory prohibitions are designed to
protect and promote the quality of life of adolescents,
a quality of
life that in itself is consistent with the constitutional conception
of human dignity. In addition, the respondents
submit that any
stigma attached to adolescent sexual conduct is the result of
societal attitudes regarding the adolescent sexual
acts, rather than
a function of the impugned provisions.
In countering those arguments, the applicants
relied on
National Coalition
,
31
in which this Court declared that the
criminalisation of sodomy was an unjustifiable limitation of,
amongst others, the rights
to dignity and privacy. I am persuaded
that their reliance is appropriate.
It cannot be doubted that the criminalisation of
consensual sexual conduct is a form of stigmatisation which is
degrading and
invasive. In the circumstances of this case, the human
dignity of the adolescents targeted by the impugned provisions is
clearly
infringed. If one’s consensual sexual choices are not
respected by society, but are criminalised, one’s innate sense

of self-worth will inevitably be diminished. Even when such criminal
provisions are rarely enforced, their symbolic impact has
a severe
effect on the social lives and dignity of those targeted.
32
It must be borne in mind that sections 15 and 16
criminalise a wide range of consensual sexual conduct between
children: the categories
of prohibited activity are so broad that
they include much of what constitutes activity undertaken in the
course of adolescents’
normal development.
33
There can also be no doubt that the existence of
a statutory provision that punishes forms of sexual expression that
are developmentally
normal degrades and inflicts a state of disgrace
on adolescents. To my mind, therefore, the stigma attached to
adolescents by
the impugned provisions is manifest. The limitation
of section 10 of the Constitution is obvious and undeniable.
I find untenable the respondents’
contention that it is social mores, rather than the criminalisation
imposed by the Sexual
Offences Act, which stigmatise adolescents who
are investigated and prosecuted under the impugned provisions. An
individual’s
human dignity comprises not only how he or she
values himself or herself, but also includes how others value him or
her.
34
When that individual is publicly exposed to
criminal investigation and prosecution, it is almost invariable that
doubt will be
thrown upon the good opinion his or her peers may have
of him or her. In this regard, consideration of the “Jules
High
School case”
35
is instructive. Two boys had sexual intercourse
with a girl. All three children were investigated and subsequently
prosecuted
under section 15 of the Sexual Offences Act. As the NDPP
explained in the High Court, “[the two boys] were arrested
outside
school premises in the late morning during the week. Their
peers were aware that they had been arrested. The media had dubbed
them ‘gang rapists’. The boys and their family were
deeply shamed and traumatised”. The NDPP decided to prosecute

the girl because she had “willingly sneaked out of the school
yard to engage in consensual sexual intercourse with two
boys.”
At the time the proceedings were initiated in the High Court the
female learner had yet to return to school or write
her end-of-year
examinations. I fail to see how, having admitted that section 15 was
implemented against the three learners in
full view of the public,
and having acknowledged the resultant exposure and trauma those
learners suffered, the respondents can
possibly claim that the
impugned provisions do not lead to the shaming and stigmatisation of
adolescents.
The
stigma of criminalisation is exacerbated by the provisions in
section 41 of the Sexual Offences Act mandating that the
name
of any person who commits an offence in terms of sections 15
and 16 be placed on the Register. If a person’s
particulars
are recorded in the Register in connection with a sexual offence
against a child, a number of adverse consequences
follow. The person
may not be employed to work with a child; may not hold any position
which places him or her in authority,
supervision or care of a
child; and may not become a foster parent or an adoptive parent.
36
The relevant provisions of section 41(1) are
clearly and laudably aimed at protecting children from adult sexual
predators. However,
this goal will not be achieved by the inclusion
in the Register of the details of adolescents who have engaged in
consensual
sexual penetration or sexual violation. Indeed, to
prevent an adolescent from meaningfully interacting with children in
the future
purely because that adolescent engaged in what may be
developmentally normal sexual conduct constitutes a significant
limitation
of his or her right to dignity.
Accordingly,
I find that sections 15 and 16 of the Sexual Offences Act limit
adolescents’ right to dignity and am constrained
to dismiss
the respondents’ limited interpretation of section 10 of the
Constitution.
Privacy
Section
14 of the Constitution provides that “[e]veryone has the right
to privacy”. In
Bernstein and
Others v Bester and Others NNO
37
this Court identified the “inner sanctum”
of personhood that is protected by the right to privacy. This inner
sanctum
includes his or her “family life, sexual preference
and home environment, which is shielded from erosion by conflicting
rights of the community.”
38
In
National
Coalition
this Court held as follows:
“
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.”
39
The
principled basis of this Court’s reasoning in
National
Coalition
applies with equal force to the consensual sexual
conduct of adolescents, because the criminal offences under sections
15 and
16 of the Sexual Offences Act apply to the most intimate
sphere of personal relationships and therefore inevitably implicate

the constitutional right to privacy. The offences allow police
officers, prosecutors and judicial officers to scrutinise and assume

control of the intimate relationships of adolescents, thereby
intruding into a deeply personal realm of their lives. This
intrusion
is exacerbated by the reporting provisions: trusted third
parties are obliged by section 54 of the Sexual Offences Act to
disclose
information which may have been shared with them in the
strictest confidence, on pain of prosecution.
In
S v Jordan and
Others (Sex Workers Education and Advocacy Task Force and Others as
Amici Curiae
)
40
the minority judgment found that there are a
range of factors relevant to distinguishing the core of privacy from
its penumbra:
“
One of
the considerations is the nature of the relationship concerned: an
invasion of the relationship between partners, or parent
and child,
or other intimate, meaningful and intensely personal relationships
will be a strong indication of a violation close
to the core of
privacy.”
41
Following
this reasoning, the minority judgment concluded that the commercial
nature of the conduct under consideration removed
it from the inner
sanctum of privacy.
The
majority judgment also found that the circumstances of that case
were distinguishable from
National Coalition
:
“
[E]ven
if the right to privacy is implicated, it lies at the periphery and
not at its inner core. What lies at the heart of the
prostitutes’
complaint is that they are prohibited from selling their sexual
services. After all, they are in this industry
solely for money. The
prohibition is directed solely at the sale of sexual activity.
Otherwise the prostitutes are entitled to
engage in sex, to use their
bodies in any manner whatsoever and to engage in any trade as long as
this does not involve the sale
of sex and breaking a law validly
made. What is limited is the commercial interests of the
prostitute.”
42
In
the present case there is nothing, such as the commercialisation of
sexual relationships, which may be said to remove adolescents’

privacy interests from the inner sanctum of the right contained in
section 14 of the Constitution. Sections 15 and 16 of
the
Sexual Offences Act prohibit consensual intimate relationships and,
accordingly, intrude into the core of adolescents’
privacy.
Of course, as we have emphasised time and again,
the rights in the Bill of Rights are not discrete silos, each
protecting a set
of interests that is neatly categorised and
absolutely divided along sharp, bright lines. Rather, there are
levels of interconnectedness
that must be acknowledged in any
constitutional analysis.
43
This is certainly the case in relation to human
dignity and privacy. Privacy fosters human dignity insofar as it is
premised on,
and protects, an individual’s entitlement to “
a
sphere of private intimacy and autonomy”
.
44
I am therefore of the view that, to the extent
that they encroach on the right to privacy, sections 15 and 16
constitute a related
limitation of adolescents’ dignity
rights.
The best interests of children
Section
28(2) of the Constitution provides that “[a] child’s
best interests are of paramount importance in every matter

concerning the child.” It is trite that section 28(2) is
both a self-standing right and a guiding principle in all
matters
affecting children.
45
What is in the best interests of a child is a balancing exercise and
in each case various factors need to be considered.
The
respondents suggest that a violation of section 28(2) of the
Constitution cannot be determined without an investigation into
the
circumstances of a particular child in a particular case.
46
It follows, so they reason, that there is no basis to mount an
attack in generalised terms on sections 15 and 16 by relying
on
the best-interests principle.
During
oral argument counsel for the respondent did not pursue this line of
attack with any vigour, and rightly so, for it is
at odds with the
general principle that section 28(2) exists to protect the
interests of children, with common sense and
with the jurisprudence
of this Court.
In
Centre for Child
Law
v Minister of Justice and Constitutional
Development and Others
47
the applicants did not allege that the rights of
any specific child were threatened, but contended that all 16- and
17-year old
children were threatened by the minimum-sentencing
legislation. The Court ultimately declared the legislative
provisions under
challenge invalid on the basis of their
inconsistency with section 28. In
C and
Others v Department of Health and Social Development, Gauteng, and
Others
,
48
this Court declared provisions of the Children’s
Act to be inconsistent with section 28(2) of the Constitution
and
did so by examining the interests of children in general. The
majority of this Court found as follows:
“
It is
in the
interests
of children
that
an incorrect decision by a court made without hearing the child or
the parents, or by a designated social worker or police
official, be
susceptible to automatic review by a court, in the ordinary course,
in the presence of the child and the parents.
It follows from this
that sections 151 and 152 do not provide for this and are therefore
constitutionally wanting.”
49
(Emphasis
added.)
Section
28(2) thus fulfils at least two separate roles. The first is as a
guiding principle in each case that deals with a particular
child.
The second is as a standard against which to test provisions or
conduct which affect children in general.
50
It is
true that in
C
and in
Centre for Child Law
the reason
the provisions were deemed to be against the best interests of
children in general was that they were inflexible and
therefore did
not allow the particular circumstances of each child to be taken
into consideration when a decision affecting that
child was made.
But I do not read these cases to mean that the best-interests
principle could only be employed in scenarios where
legislation is
inflexible.
The
best-interests principle also applies in circumstances where a
statutory provision is shown to be against the best interests
of
children in general, for whatever reason. As a matter of logic what
is bad for all children will be bad for one child in a
particular
case. Thus, if there is evidence that exposing children to the
criminal justice system for engaging in consensual
sexual behaviour
has a negative impact on them generally, then it seems to me that a
court may declare the scheme to be contrary
to the best interests of
the child in terms of section 28(2), and therefore invalid. I now
turn to consider the best-interests
principle with regard to this
particular matter.
First, I am persuaded that the evidence tendered by the applicants
demonstrates that the existence and enforcement of the offences

created by sections 15 and 16 of the Sexual Offences Act exacerbate
harm and risk to adolescents by undermining support structures,

preventing adolescents from seeking help and potentially driving
adolescent sexual behaviour underground.
Second,
as discussed above,
51
the expert report indicates that the reporting
provisions are likely to create an atmosphere in which adolescents
will not freely
communicate about sexual relations with parents and
counsellors. In
S v M
this
Court held that—
“
section
28 requires the law to make best efforts to avoid, where possible,
any breakdown of family life or parental care that may
threaten to
put children at increased risk. Similarly, in situations where
rupture of the family becomes inevitable, the State
is obliged to
minimise the consequent negative effect on children as far as it
can.”
52
The effect
of the reporting provisions, however, is the opposite. They create a
rupture in family life and invite a breakdown of
parental care by
severing the lines of communication between parent or guardian and
child.
Third, the
imposition of criminal liability under
the impugned provisions may, at worst, lead to imprisonment, and, at
best, lead to diversion
procedures. It is salutary to have regard,
once again, to this Court’s exposition on the import of
section 28(2) in
S v M
:
“
[F]oundational
to the enjoyment of the right to childhood is the promotion of the
right as far as possible to live in a secure and
nurturing
environment free from violence, fear, want and
avoidable
trauma
.”
53
(Emphasis
added.)
With that injunction in mind, I find myself
constrained to agree with the applicants that even the prospect of
diversion cannot
save the impugned provisions. If the adolescent
charged under section 15 or section 16 is ultimately diverted from
the formal criminal
justice system, he or she may still be arrested
and forced to interact with arresting and investigating police
officials.
54
If the adolescent is to avoid a formal criminal
trial, he or she must acknowledge “responsibility for the
offence” to
a magistrate.
55
The acknowledgement is made during inquiry or
trial proceedings at which various people may be in attendance,
including the adolescent’s
guardian,
56
the relevant probation officer
57
and the prosecutor.
58
The adolescent will not only experience these
interactions with various institutions of state, but in the course
thereof will be
forced to disclose and have scrutinised details of
his or her intimate affairs. And all because he or she engaged in
developmentally
normative conduct.
Fourth,
I find unsustainable the respondents’ reliance on the argument
that the statutory prohibitions do not mean that
all
instances of “consensual sexual penetration” and
“consensual sexual violation” between children will
be
prosecuted. The respondents contend that because the NDPP or the
relevant Director of Public Prosecutions, as the case may
be, has a
discretion whether or not to prosecute a particular case, charges
will only be preferred against adolescents in
some
instances.
In principle, and as this Court has made plain,
the existence of prosecutorial discretion cannot save otherwise
unconstitutional
provisions.
59
If the discretion to prosecute exists, the
prospect of an adolescent being arraigned under the impugned
provisions is ever-present.
60
For the reasons set out above, any such
prosecution will invariably infringe the best-interests principle,
as well as the affected
adolescent’s rights to privacy and
human dignity. In other words, the mere existence of a prosecutorial
discretion creates
the spectre of prosecution, which undermines
adolescents’ rights.
61
Furthermore, the discretion cited by the
respondents only occurs at the stage of deciding whether to
prosecute, by which time
the adolescent involved may already have
been investigated, arrested and questioned by the police. In any
event, while the arguments
in relation to prosecutorial discretion
may be relevant when considering the extent of the limitation of
section 28(2) of the
Constitution, they are irrelevant when
considering whether the right has been limited at all.
Lastly, the harm created by the impugned
provisions is amplified by the irrationality of the mandatory
prosecution of both adolescents.
62
The respondents argue that it is not irrational
to prosecute both parties, but consistent with the principle of
equal treatment
before the law whenever an offence has been
committed. I disagree.
The younger child is thought to require protection from the older
child. We know from the record that the Legislature’s

rationale for the close-in-age exemption in section 56(2)(b) being
restricted to two years was that the greater the age gap between
the
participants in sexual conduct, the more likely it is that the older
child may have unduly influenced the younger child.
However,
prosecuting the younger child in these circumstances along with the
older child is irrational. It simply does not make
sense to reason
that the younger the child or the greater the age gap between the
children involved, the stronger the requirement
to prosecute the
younger child, particularly when the purpose behind the statutory
provision is the protection of the younger
child.
For these stated reasons I find that sections 15 and 16 of the
Sexual Offences Act are contrary to the best-interests principle
and
have the effect of harming the adolescents they are intended to
protect. Indeed, it strikes me as fundamentally irrational
to state
that adolescents do not have the capacity to make choices about
their sexual activity, yet in the same breath to contend
that they
have the capacity to be held criminally liable for such choices.
Importantly, the right in terms of section 28(2),
like the
rights to human dignity and privacy, is not inviolable and is
subject to justifiable limitation to the extent that section
36 of
the Constitution permits. It is that justification inquiry to which
I now turn.
Limitation analysis
The importance of the purpose of the limitation
When
making submissions on the underlying purpose of the prohibitions,
counsel for the respondents equivocated between stating
that the
provisions were intended to target the risks associated with
particular sexual conduct, and stating that they were intended
to
prohibit any act which may give children sexual gratification,
regardless of the negative consequences that may flow from
it. In my
view the second purported objective could not have been intended by
the Legislature. Such a purpose could find no place
in an open and
democratic society founded on human dignity, equality and freedom.
I
accept that the purposes of discouraging adolescents from
prematurely engaging in consensual sexual conduct which may harm
their development, and from engaging in sexual conduct in a manner
that increases the likelihood of the risks associated with
sexual
conduct materialising, are legitimate and important.
Nature and extent of the limitation
I
have already found that the impugned provisions constitute a deep
encroachment on the rights to human dignity and privacy, as
well as
the best-interests principle.
The
respondents rely extensively on the prosecutorial discretion and
diversion measures in other relevant legislation to justify
the
limitation of the aforementioned rights. However, as already
explained, these temper only some of the harm.
63
Adolescents would still be exposed to earlier
processes in the criminal justice system such as being arrested and
questioned by
police and other authorities about their intimate
sexual behaviour. A prosecutor choosing to act with circumspection
does not
do enough to alleviate the invasion of children’s
rights occasioned by those earlier processes.
The relation between the limitation and the statutory purpose
As a starting point, it is important to note that
where a justification analysis rests on factual or policy
considerations, the
party seeking to justify the impugned law –
usually the organ of state responsible for its administration –
must
put material regarding such considerations before the court.
64
Furthermore, “[w]here the state fails to
produce data and there are cogent objective factors pointing in the
opposite direction
the state will have failed to establish that the
limitation is reasonable and justifiable.”
65
The
respondents submit that there is a clear relationship between the
prohibitions and the purpose sought to be achieved by the
Act –
the purpose of protecting adolescents from risks associated with
sexual acts. According to the respondents, the connection
is
twofold. First, adolescents will not easily and knowingly engage in
the proscribed acts in view of the prohibitions. Second,
parents and
guardians will be empowered by the provisions to drive home the
risks of early sexual intimacy to their children.
In
relation to the respondents’ first proposition, there is
evidence before this Court demonstrating that some sexual behaviour

carries risks and that it may be undesirable for adolescents to
engage in some kinds of sexual conduct on the basis that it may
harm
them psychologically. When questioned by
the Bench during
oral argument, counsel reiterated that sexual penetration, even when
consensual, leads to such “devastating
effects” as
unwanted pregnancies and the contraction of sexually transmitted
diseases. It is these “material risks”
which the
Legislature has sought to discourage by promulgating sections 15 and
16 of the Sexual Offences Act, and it is therefore
the case, so the
respondents contend, that both non-consensual and consensual sexual
conduct must be prohibited by criminal sanction.
However,
this is insufficient to justify sections 15 and 16 of the Sexual
Offences Act as constitutionally valid. What the respondents
need to
demonstrate is that the existence and enforcement of the impugned
provisions can reasonably be expected to control the
aforementioned
risks. The Minister, however, has not tendered any evidence, expert
or otherwise, to corroborate these claims.
Thus, we have before us
no evidence at all to demonstrate that adolescents may be deterred
by sections 15 and 16 from engaging
in sexual conduct and thus avoid
the risks associated with engaging in sexual activity at a young
age. Rather, the evidence we
do have before us is to the contrary.
It shows that the impugned provisions increase the likelihood of
adolescents participating
in unsafe sexual behaviour and therefore
actually increase the materialisation of the associated risks.
66
In
the ordinary case it may well be that the state may, without more,
rely on the nominal deterrent effect that the criminalisation
of
particular conduct may have. But where there is expert evidence
indicating that the statute under challenge will not have
the
desired deterrent effect, more is required from the state if the
relevant criminal prohibitions are to survive.
67
The
expert report clearly demonstrates that the impugned provisions
cultivate a society in which adolescents are precluded from
having
open and frank discussions about sexual conduct with their parents
and caregivers.
68
Rather than deterring early sexual intimacy, the
provisions merely drive it underground, far from the guidance that
might otherwise
be provided by parents, guardians and other members
of society. As Flisher and Gevers opine:
“
Sections
15 and 16 of the [Sexual Offences] Act contribute to social taboos
and silences around adolescent sexuality particularly
by discouraging
adolescents to seek help and disabling adults from providing
appropriate and helpful guidance and support that
will promote
adolescents’ growth and development.”
Significantly,
the respondents did not dispute the veracity of the evidence given
by Flisher and Gevers. Quite the reverse. They
attempted to rely on
it and to argue that the evidence was open to a different
interpretation. However, this is not so. The report
compiled by
Flisher and Gevers comes to the unequivocal conclusion that “[i]n
essence, sections 15 and 16 of the Act currently
increase
adolescents’ risk of being involved in unhealthy, risky sexual
behaviour.”
In
relation to the respondents’ second proposition, that the
impugned provisions empower parents and caregivers to emphasise
the
risks of early sexual intimacy, I note that there is also no
evidence to suggest that this is the case. On the contrary,
the
evidence of Flisher and Gevers indicates that caregivers and
institutions are disempowered in dealing with adolescents because

they cannot promote behaviour that the provisions have deemed
illegal and further because, in the course of attempting to provide

guidance and assistance, they may well be told intimate information
which they will be obliged to report to the authorities.
69
Thus,
the impugned provisions have the opposite of their intended effect.
In addition, sections 15 and 16 of the Sexual Offences
Act also give
rise to unintended and irrational consequences that are patently at
odds with the purposes of the provisions. An
example will suffice.
As
the second and third amici submitted, some instances of rape stem
from scenarios in which there was consent for the initial,

consensual sexual conduct. For instance, if a child of 12 consented
to kissing another child of 15, but was subsequently raped
by the
15-year old, then, if the 12-year old reported the instance of rape
to the police, he or she could be prosecuted for the
initial
consensual kiss (in terms of section 16 of the Act). In these
instances, victims may be discouraged from reporting crimes
such as
the rape for fear of being investigated and prosecuted for
consensual sexual violations they have committed, which is
at odds
with the statutory purpose of protecting children.
70
Because
of the lack of a rational link between the impugned provisions and
their stated purpose, sections 15 and 16 of the Sexual
Offences Act
do not pass constitutional muster. The provisions are all the more
indefensible when one considers the availability
of less restrictive
means, to which I now turn.
Less restrictive means
A
limitation will not be proportional if other, less restrictive means
could have been used to achieve the same ends. And if it
is
disproportionate, it is unlikely that the limitation will meet the
standard set by the Constitution, for section 36 “does

not permit a sledgehammer to be used to crack a nut.”
71
A provision which limits fundamental rights must,
if it is to withstand constitutional scrutiny, be appropriately
tailored and
narrowly focused.
72
However, this Court has held that the state ought to be given a
margin of appreciation in relation to whether there are less

restrictive means available to achieve the stated purpose.
73
During
oral argument counsel for the respondents made several submissions
to the effect that the persistence of sexual conduct
amongst
adolescents indicates that less restrictive means, such as education
programmes and guidance from parents, have failed
to curb
adolescents’ sexual behaviour. We were not directed to a
single fact in the record to support these submissions.
I pause to
emphasise two points. First, where one party has put forward cogent
expert documentary evidence indicating that the
impugned provisions
do not pass constitutional muster, the party seeking to uphold the
validity of those provisions must advance
evidence of a similar
nature if he or she is to have any hope of success. Mere statements
from the bar will not suffice.
74
Second, in matters concerning children, it is
particularly important that courts be furnished with information of
the best quality
that can reasonably be obtained.
75
In my
view, there are clearly less restrictive means available for
achieving the stated purposes of the impugned provisions. First,

assuming criminalisation could be shown to be an appropriate
response to deter consensual sexual acts which carry the risks of

psychological harm, pregnancy or the contraction of sexually
transmitted diseases, a narrowly focussed provision would target

only those acts where these are potential risks. I have already
noted that sexual penetration as defined goes well beyond sexual

intercourse. Similarly, most of the acts falling within the ambit of
sexual violation are not carriers of the recited risks.
Thus, in
relation to the purposes of preventing adolescents from suffering
psychological harm, contracting sexually transmitted
diseases and
becoming pregnant, the impugned provisions are clearly and
impermissibly over-inclusive. In any event, I am highly
doubtful
that the introduction of criminal prohibitions could ever be shown
to be a constitutionally sound means of preventing
the occurrence of
such risks as teenage pregnancy. Certainly the respondents have put
forward neither argument nor evidence to
convince me otherwise.
Moreover,
on the basis of the expert report, I am persuaded that there are
various methods the state could use that do not involve

criminalisation of consensual sexual conduct between adolescents in
order to encourage them to lead healthy and responsible sexual

lives.
76
For instance, Flisher and Gevers find that—
“
adolescents
who discuss sex and sexual health with their parents openly are less
likely to engage in sexual risk behaviour. Parent-child
sexual
communication that is open and includes specific information and
discussion about risk and risk reduction strategies has
been shown to
have a positive influence on adolescent sexual behaviour.”
(Endnotes omitted.)
Thus, according to the experts, efforts are needed “to make
adolescents feel more comfortable in confronting sexuality
issues in
safe environments with guidance from more mature individuals.”
Furthermore—
“
[c]omprehensive
sex education has been found to be more effective than
abstinence-only or no sex education in reducing [risky sexual

behaviour by young people,] including delays in sexual debut,
reductions in [the] number of sexual partners, and reductions in

pregnancy and diagnosed STIs among youth. Abstinence-only education
programmes have been found to have no significant impact on

adolescents’ values or attitudes toward sexual activity.”
(Endnotes omitted.)
This judgment should not be seen as prescribing to Parliament which
of a range of policy choices it ought to make in order to
achieve
its stated purpose of protecting adolescents from the risks
attendant on early sexual conduct. However, in terms of section

36(1)(e), we have an obligation to consider the alternative means by
which the Legislature could have achieved its stated purpose
and it
is pursuant to that analysis, amongst others, that I conclude that
the impugned provisions do not pass constitutional
muster.
Accordingly,
the limitations cannot be justified in terms of section 36 of the
Constitution and sections 15 and 16 are unconstitutional
insofar as
they impose criminal liability on adolescents for engaging in
consensual sexual conduct. It follows that the High
Court’s
declarations of constitutional invalidity should be confirmed. What
remains to be determined is the remedy to be
granted to address this
invalidity.
Remedy
In
terms of section 172(1)(a) of the Constitution we are obliged to
declare the impugned provisions invalid to the extent of their

inconsistency with the Constitution. For the reasons set out above,
77
sections 15 and 16 of the Sexual Offences Act are
inconsistent with the Constitution to the extent that they
criminalise the consensual
sexual conduct of adolescents and must
accordingly be declared invalid.
However,
we must also determine whether it would be just and equitable to
grant further relief and, if so, what form that relief
should take.
78
In
Van Rooyen and Others v The State
and Others (General Council of the Bar of South Africa
intervening)
,
79
this Court set out the manner in which
appropriate relief should be determined when dealing with possibly
unconstitutional legislation:
“
[L]egislation
must be construed consistently with the Constitution and thus, where
possible, interpreted so as to exclude a construction
that would be
inconsistent with judicial independence. If held to be
unconstitutional, the appropriate remedy ought, if possible,
to be in
the form of a notional or actual severance, or reading in, so as to
bring the law within acceptable constitutional standards.
Only if
this is not possible, must a declaration of complete invalidity of
the section or subsection be made.”
80
(Footnotes
omitted.)
In
the circumstances of this case an interpretation of sections 15 and
16 so as to ensure consistency with the Constitution is
not
possible. There is no reading of those sections that would meet the
requirements of section 36 of the Constitution without
doing
violence to the clear meaning of the impugned provisions. Indeed,
none of the parties has sought to remedy the problems
with the Act
by proposing an innovative interpretation thereof.
The
applicants contend for a combination of severance and reading-in.
They argue that section 15(2)(a) and (b) and section 16(2)(a)
and
(b) should be severed from the statute. I assume that this severance
is argued for on the basis that it would remove the
irrational
obligation on the prosecuting authorities to choose between
instituting proceedings against both (or all) children
involved, or
none at all. They further argue that words should be read in to the
Sexual Offences Act such that (a) a child may
not be charged with
the commission of statutory rape or statutory sexual assault and (b)
a close-in-age defence will apply with
regard to a charge of
statutory rape (at present it only applies with regard to a charge
of statutory sexual assault). This relief
was granted by the High
Court.
An
order of severance should only be granted if (a) it is possible to
sever the valid provisions from the invalid provisions (that
is, to
separate the good from the bad and remove the latter) and (b) if,
after severance, the statutory provision still achieves
the relevant
object.
81
Furthermore, granting an application for
severance, as with the award of any other form of relief, “should
not infringe
upon the doctrine of separation of powers, or usurp the
power of the legislature to legislate.”
82
Similar considerations regarding severance apply
in relation to reading in.
83
The reading-in must remedy the defect, must
interfere as little as possible with the legislation and must still
give effect to
the purpose of the legislation.
84
For the reasons that follow I am of the opinion that the severance
and reading-in proposed by the applicants and accepted by
the High
Court are inappropriate in the circumstances of this case. First, it
cannot be denied that, notwithstanding their flaws,
the impugned
provisions serve an important function insofar as they impose
criminal liability on an adult for engaging in sexual
conduct with a
consenting adolescent. No other provisions in the Sexual Offences
Act serve this essential function. Any relief
granted must preserve
the criminalisation of such conduct by an adult.
Second,
sections 15 and 16 clearly form part of a more general scheme
regarding sexual offences, and are interlinked with various
other
provisions in the Sexual Offences Act. Severing portions from, and
reading words into, those sections might therefore have
unintended
consequences in relation to the operation of the Act as a whole,
such that holistic legislative revision by Parliament
would be more
appropriate to address the concerns set out in this judgment.
Indeed, courts should guard against patchwork judicial
intervention
in legislation.
85
Third, the regulation and legislation of sexual
conduct in the public interest fall squarely within the
Legislature’s domain,
subject, as always, to the prescripts of
the Constitution. The force of those prescripts was shown in
National Coalition
,
86
as were their limits in
Jordan
.
87
While the current statutory regime is patently
unconstitutional, it is quite conceivable that Parliament may wish
to reconsider
the close-in-age defence in the light of the finding
set out above, or that it may wish to regulate “sexual
penetration”
between an adolescent and a minor aged 16 or 17
in a manner different to that proposed by the applicants. There is a
significant
difference between declaring the current Act to be
unconstitutional, and instructing Parliament which of a range of
constitutional
policy choices it should make in addressing that
unconstitutionality. The subject matter of the impugned provisions,
in addition
to being policy-laden, is sensitive and has attracted a
high degree of public scrutiny. In our participatory democracy
Parliament
is institutionally best-suited to ensure that the
ultimate statutory regime is decided upon in an open, inclusive and
transparent
manner, with all relevant parties who so desire being
given the opportunity to shape the debate and the eventual outcome.
88
I am
therefore of the opinion that, while sections 15 and 16 should be
declared invalid, justice and equity warrant that their
invalidity
should be suspended for a period of 18 months in order to allow
Parliament to remedy the defects in the statute.
The
applicants strongly opposed any suspension of the declaration of
invalidity, on the basis that it would allow investigations
and
prosecutions pursuant to sections 15 and 16 to continue until
Parliament has enacted the necessary amending legislation.
While I
do not agree with the applicants’ proposed solution of
severance and reading-in (for the reasons set out above),
their
concerns have merit. It is for that reason that I order a moratorium
on all investigations into, arrests of, and criminal
and ancillary
proceedings against adolescents in relation to sections 15 and 16 of
the Sexual Offences Act, pending Parliament’s
remedying of the
defects in the statute. This moratorium will put in abeyance any
related reporting obligations which may otherwise
have arisen from
the operation of section 54 of the Act.
I
consider it necessary to order the Minister, as the responsible
authority in terms of section 87(3) of the Child Justice Act,
89
to take the appropriate steps to ensure that the
conviction and sentence of any adolescent pursuant to sections 15 or
16 of the
Sexual Offences Act be expunged. I also consider it
necessary to order the Minister, as the member of the Executive with
ultimate
responsibility for the administration of the Sexual
Offences Act, to take whatever steps are required to have the
particulars
of any adolescent convicted under the impugned
provisions removed from the Register. Expungement and removal from
the Register
will, to some extent, ensure that adolescents who were
convicted and sentenced under the Sexual Offences Act do not
continue
to suffer the unconstitutional consequences of sections 15
and 16 in the future.
Before
concluding, I pause to clarify the scope of the findings in this
judgment. The applicants’ challenge was only against
the
criminalisation of consensual sexual conduct between children. This
judgment therefore does not implicate the criminalisation
of
non-consensual sexual conduct (including cases of undue influence or
other instances where consent has not properly been given)
or the
criminalisation of sexual conduct between adults and children.
Furthermore,
the findings of invalidity have been limited to the extent to which
sections 15 and 16 of the Sexual Offences Act
criminalise the
conduct of adolescents – children between the ages of 12 and
16 years. This is due to the reasons set out
in paragraph [51]
above. The applicants also sought to impugn the constitutionality of
section 15 insofar as it imposes criminal
liability on 16- and
17-year olds. However, the challenge was more limited than the
challenge regarding adolescents in that the
applicants accept as a
point of departure that 16- and 17-year olds may be criminalised for
engaging in consensual sexual conduct
with adolescents. The
applicants would, nevertheless, have us read in a close-in-age
defence for such children similar to the
defence contained in
section 56(2)(b). This must fail, for two reasons.
First,
as I have already explained, the expert evidence does not relate to
children other than adolescents, and the applicants
have not sought
to challenge Parliament’s decision to differentiate between
categories of children and to grant only one
such category –
adolescents – protection. We therefore have little basis for
concluding that the impugned provisions
have the same constitutional
implications for 16- and 17-year olds as they do for adolescents, or
that the differentiation between
the two groups of children is
somehow impermissible. Second, for the reasons set out above,
90
I do not consider it appropriate for this Court
to address the problems raised by the applicants by reading
provisions into the
Sexual Offences Act.
Costs
The
applicants have been substantially successful in defending the
constitutional rights infringed by the Sexual Offences Act.
There is
therefore no reason why costs should not follow the cause, such
costs to include the costs of two counsel.
Order
[117] The following order is made:
The order of the North Gauteng High Court, Pretoria is set aside and
replaced by the following:
1. Sections 15 and 16 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 (Act) are declared
inconsistent
with the Constitution and invalid to the extent that
they impose criminal liability on children under the age of 16 years.
2. The declaration of invalidity is suspended for a period of 18
months from the date of this judgment in order to allow Parliament
to
correct the defects in the light of this judgment.
3. From the date of this judgment, a moratorium is placed on all
investigations into, arrests of, prosecutions of, and criminal
and
ancillary proceedings against children under the age of 16 years in
relation to sections 15 and 16 of the Act, pending Parliament’s

correction of the defects in the Act.
4. The Minister of Justice and Constitutional Development is required
to take all steps necessary to ensure that, w
hen a
court has convicted a child
under the age of 16 years
of an offence referred to in sections 15 or 16 of the Act or issued a
diversion order following a charge under those provisions,
the
details of the child will not appear in the National Register for Sex
Offenders and a certificate of expungement is issued directing
that
the conviction and sentence or diversion order of such child be
expunged.
5. The respondents are ordered to pay the
applicants’ costs, including the costs of two counsel, in the
High Court and in
this Court.
For
the Applicants: Advocate S Budlender, Advocate A Skelton and
Advocate N Ferreira instructed by the Centre For Child
Law.
For
the First and Second Respondents: Advocate V Maleka SC and Advocate F
Karachi instructed by the State Attorney.
For
the First Amicus Curiae: Advocate DJ Cook instructed by Norman, Wink
and Stephens Attorneys.
For
the Second and Third Amici Curiae: Advocate M O’Sullivan and
Advocate C De Villiers instructed by the Women’s Legal
Centre
Trust.
1
De
Reuck v Director of Public Prosecutions, Witwatersrand Local
Division, and Others
[2003] ZACC 19
;
2004 (1) SA 406
(CC);
2003
(12) BCLR 1333
(CC) at para 63.
2
32
of 2007 (Sexual Offences Act).
3
It
is important to note that the commission of non-consensual sexual
offences, including rape and sexual assault, whether committed
by
adults or children, is dealt with by Parts 1 and 2 of Chapter 2. The
criminalisation of such conduct is not under challenge
in these
proceedings.
4
Section
28(3).
5
For
ease of reference, and as indicated in [11] above, I shall refer to
children who fall within this category as “adolescents”

throughout this judgment.
6
Sections
42(1) and 50(1)(a)(i).
7
Section
56(2)(b) of the Sexual Offences Act.
8
This
is not entirely clear. The defence only applies to offences
committed under section 16, for purposes of which only minors
under
the age of 16 years are children. Furthermore, the defence only
applies if “both the accused persons” were
charged, and
it is only in situations where the parties are children under the
age of 16 years that both will be charged. Where
one party is
younger than 16 years and the other party is 16 years or older, it
is only the latter who has committed an offence.
9
In
terms of section 10 of the Constitution.
10
In
terms of section 14 of the Constitution.
11
In
terms of section 12(2) of the Constitution.
12
For
ease of reference I shall refer to the principle in section 28(2) of
the Constitution
requiring that the best
interests of a child must be paramount in any matter relating to the
child as the “best-interests
principle”.
13
75
of 2008.
14
38
of 2005.
15
In
terms of Chapter 8 of the Child Justice Act a prosecutor may seek
the “diversion of a matter involving a child away from
the
formal court procedures in a criminal matter”. Possible
diversion procedures include requiring that the relevant child
make
an oral or written apology, be placed under a guidance or
supervision order, receive counselling or therapy, make restitution

to the victim of his or her offence and refrain from visiting a
particular place. The objects of relying on diversion proceedings

rather than the ordinary processes of the criminal justice system
include “[promoting] the reintegration of the child into
his
or her family and community”, preventing the stigmatisation of
the child, “[preventing the child from suffering]
the adverse
consequences flowing from being subject to the criminal justice
system” and “[promoting] the dignity
and well-being of
the child”.
16
That
is, the applicants’ submissions regarding the criminalisation
of consensual “sexual violation”, the inclusion
of
children in the Register and the reporting provisions regarding the
commission of offences in terms of sections 15 and 16
of the Sexual
Offences Act.
17
In
the alternative, and to the extent that section 15 of the Act (shorn
of subsection 2(a)) infringes upon the constitutional
rights of
children, JASA submits that such infringement is reasonable and
justifiable under section 36 of the Constitution.
18
Section
10 reads as follows:
“
Everyone
has inherent dignity and the right to have their dignity respected
and protected.” (Emphasis added.)
Section
14 states in relevant part that “
[e]veryone
has the
right to privacy”. (Emphasis added.)
19
Section
36 of the Constitution reads as follows:
“
Limitation of rights
(1) 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.
(2) Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched
in the Bill of Rights.”
20
[2007]
ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) (
S v M
).
21
Id
at paras 18-9.
22
Lord
Wilberforce in
Minister of Home Affairs
and Another v Fisher and Another
[1979]
3 All ER 21
(PC) at 25H, cited in
S v
Zuma and Others
[1995] ZACC 1
;
1995
(2) SA 642
(CC);
1995 (4) BCLR 401
(CC) (
S v Zuma
)
at para 14. See also
S v Mhlungu
and Others
[1995] ZACC 4
;
1995 (3) SA
867
(CC);
1995 (7) BCLR 793
(CC) at para 8.
23
The
respondents have sought to place reliance on a report by the South
African Law Reform Commission. However, no such report
was ever
placed before us.
24
The
expert report was compiled on the basis of some 43 academic works on
children’s sexuality and development.
25
Flisher
and Gevers explain the term “developmentally normative”
as indicating 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.”
26
B
oth
for statutory sexual assault, as is currently provided for in
section 56(2)(b), and for statutory rape, for which the Sexual

Offences Act does not provide a defence of that nature.
27
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12)
BCLR 1517
(CC) (
National Coalition
) at para 28.
28
See
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC)
(
Khumalo v Holomisa
)
at para 27. See also
Cameron “Dignity and Disgrace – Moral Citizenship and
Constitutional Protection”, lecture
delivered at the
University of Oxford’s
Understanding
Human Dignity
conference (26 –
29 June 2012) (as yet unpublished) at 10-2.
29
De
Reuck
above n 1.
30
S
v M
above n 20 at para 18.
31
Above
n 27.
32
Id
at paras 23 and 28.
33
The
prohibitions cover conduct ranging from hugging and kissing to
sexual intercourse. See the summary of the expert evidence
in this
regard at [45] – [46] above.
34
See
Khumalo v Holomisa
above n 28.
35
The
case is referred to thus because two of the three children involved
were learners at Jules High School at the time that the
incident
occurred.
36
Section
41(1) of the Sexual Offences Act.
37
[1996]
ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) (
Bernstein v
Bester
) at para 67.
38
Id
at paras 67 and 79. See also
Mistry v Interim Medical and Dental
Council of South Africa and Others
[1998] ZACC 10
;
1998 (4) SA
1127
(CC);
1998 (7) BCLR 880
(CC) at paras 23 and 27.
39
Above
n 27 at para 32.
40
[2002]
ZACC 22
;
2002 (6) SA 642
(CC);
2002 (11) BCLR 1117
(CC) (
Jordan
).
41
Id
at para 80.
42
Id
at para 29.
43
See
Khumalo v Holomisa
above n 28 and
South African National
Defence Union v Minister of Defence and Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) (
SANDU
) at para
8.
44
National
Coalition
above n 27 at para 32. See also
Khumalo v Holomisa
above n 28.
45
Minister
of Welfare and Population Development v Fitzpatrick and Others
[2000] ZACC 6
;
2000 (3) SA 422
(CC);
2000 (7) BCLR 713
(CC) at paras
17-8.
46
In
this regard they seek to place reliance on
Director of Public
Prosecutions, Transvaal v Minister of Justice and Constitutional
Development, and Others
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (7) BCLR 637
(CC) at para 123.
47
[2009]
ZACC 18
;
2009 (6) SA 632
(CC);
2009 (11) BCLR 1105
(CC)
.
48
[2012]
ZACC 1
;
2012 (2) SA 208
(CC);
2012 (4) BCLR 329
(CC) (
C
).
49
Id
at para 77.
50
In
relation to the first role see, for example,
S v M
above n 20
at paras 24-6.
51
See
the discussion in [47] above.
52
Above
n 20 at para 20.
53
Id
at para 19.
54
In
terms of section 52(1) of the Child Justice Act, diversion may occur
during a pre-trial preliminary inquiry or during a criminal
trial.
In both cases the child involved will already have had his or her
presence before the presiding officer secured, which
may have
occurred by way of arrest.
55
Sections
41(1)(a) and 52(1)(a) of the Child Justice Act.
56
Id
section 44(1)(b).
57
Id
section 44(1)(c).
58
Id
section 44(1).
59
See,
for example,
S v Mbatha; S v Prinsloo
[1996] ZACC 1
;
1996 (2)
SA 464
(CC);
1996 (3) BCLR 293
(CC) at para 23.
60
See
S v Zuma
above n 22 at para 28.
61
See
the discussion based on
National Coalition
above n 27 in [54]
and [55] above.
62
As
set out in [21] and [23] above, if charges are pursued in terms of
sections 15 or 16 in circumstances where both or all parties
are
adolescents, both or all adolescents must be prosecuted.
63
See
the discussion in [74] – [76] above.
64
Moise
v Greater Germiston Transitional Local Council
[2001]
ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC)
at
para 19.
65
S
v Steyn
[2000] ZACC 24
;
2001 (1) SA
1146
(CC);
2001 (1) BCLR 52
(CC) at paras 31-7.
66
See
[47] above.
67
On
the importance of submitting sufficient evidence to defend a
challenge to the constitutionality of a statutory provision see,
for
example,
Centre for Child Law
above n 47 at paras 54-60.
68
See
the discussion of the expert evidence in [47] above.
69
Id.
70
For
another instance of the irrational consequences that flow from the
impugned provisions, see the discussion in [77] and [78]
above.
71
S
v Manamela and Another (Director-General of Justice Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR
491
(CC) at para 34.
72
Islamic
Unity Convention v Independent Broadcasting Authority and Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC) at para
49. See also
SANDU
above n 43 at para 18.
73
See
S v Makwanyane
and Another
[1995] ZACC 3
;
1995 (3) SA
391
(CC);
1995 (6) BCLR 665
(CC) at para 104.
74
S
v
Steyn
above
n 65 at para 37.
75
S
v M
above n 20 at para 9.
76
The
applicants submit that these are the kinds of measures that the
Ministers of Health and Basic Education were attempting to
implement
in schools until they were made aware that the existence of the
impugned provisions would make it impossible to do
so.
77
See
the discussion at [52] – [100] above.
78
Section
172(1) of the Constitution reads:
“
(1) When deciding a
constitutional matter within its power, a court
¾
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
(b) may make any order that is just and equitable,
including
¾
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority
to correct the defect.”
79
[2002]
ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC).
80
Id
at para 88.
81
Coetzee
v Government of the Republic of South Africa; Matiso and Others v
Commanding Officer Port Elizabeth Prison and Others
[1995]
ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC) at para 16.
82
Premier,
Limpopo Province v Speaker of the Limpopo Provincial Legislature and
Others
[2012] ZACC 3
;
2012 (4) SA 58
(CC);
2012 (6) BCLR 583
(CC) at para 27.
83
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs
and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR
39
(CC) at paras 67-8.
84
Bishop
“
Remedies” in Woolman et al (eds)
Constitutional Law of South Africa
2 ed RS 1 at 9-105.
85
See,
for example,
Minister of Home Affairs and Another v Fourie and
Another (Doctors for Life International and Others as
Amici
Curiae
); Lesbian and Gay Equality Project and Others v Minister
of Home Affairs and Others
[2005] ZACC 20
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC) at paras 58 and 116. See also
Ngewu and
Another v Post Office Retirement Fund and Others
[2013] ZACC 4
;
2013 (4) BCLR 421
(CC) at para 18, where this Court emphasised the
importance of Parliament taking steps to consider how the
consequences of a
declaration of invalidity would “affect the
structure and application of the relevant legislation.”
86
Above
n 27.
87
Above
n 40.
88
See
Dawood and Another v Minister of Home Affairs and Others; Shalabi
and Another v Minister of Home Affairs and Others; Thomas and

Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 64, where
O’Regan J held as follows for a unanimous Court:
“
Where, as in the present
case, a range of possibilities exists, and the Court is able to
afford appropriate interim relief to
affected persons, it will
ordinarily be appropriate to leave the legislature to determine in
the first instance how the unconstitutionality
should be cured. This
Court should be slow to make those choices which are primarily
choices suitable for the legislature.”
89
Section
87 reads in relevant part as follows:
“
(1) (a) Where a court has
convicted a child of an offence referred to in Schedule 1 or 2, the
conviction and sentence in question
fall away as a previous
conviction and the criminal record of that child must, subject to
subsections (2), (3) and (5),
on the written application of the
child, his or her parent, appropriate adult or guardian (hereafter
referred to as the applicant),
in the prescribed form, be expunged
after a period of—
(i) five years has elapsed after the date of conviction
in the case of an offence referred to in Schedule 1; or
(ii) 10 years has elapsed after the date of conviction
in the case of an offence referred to in Schedule 2,
unless during that period the child is convicted of a
similar or more serious offence.
(b) In the case of a dispute or uncertainty as to
whether another offence of which a child is convicted during the
period is similar
to or more serious than the offence in respect of
which a record exists, the opinion of the Cabinet member responsible
for the
administration of justice prevails.
(2) The Director-General: Justice and Constitutional
Development must, on receipt of the written application of an
applicant referred
to in subsection (1), issue a prescribed
certificate of expungement, directing that the conviction and
sentence of the child
be expunged, if the Director-General is
satisfied that the child complies with the criteria set out in
subsection (1).
(3) Notwithstanding the provisions of subsection (1),
the Cabinet member responsible for the administration of justice
may, on
receipt of an applicant’s written application in the
prescribed form, issue a prescribed certificate of expungement,
directing
that the conviction and sentence of the child be expunged,
if he or she is satisfied that exceptional circumstances exist which

justify expungement, where, in the case of the child—
(a) the period of five years, referred to in subsection
(1)(a)(i); or
(b) the period of 10 years, referred to in subsection
(1)(a)(ii),
has not yet elapsed, if the Cabinet member responsible
for the administration of justice is satisfied that the child
otherwise
complies with the criteria set out in subsection (1).”
90
[107]
– [109].