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[2014] ZACC 13
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J v National Director of Public Prosecutions and Another (CCT 114/13) [2014] ZACC 13; 2014 (2) SACR 1 (CC); 2014 (7) BCLR 764 (CC) (6 May 2014)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 114/13
In
the matter between:
J
…...........................................................................................................................................
Applicant
and
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
....................................
First Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.............................................................
Second Respondent
and
CHILDLINE
SOUTH
AFRICA
.............................................................................
First
Amicus Curiae
TEDDY
BEAR CLINIC FOR ABUSED CHILDREN
....................................
Second Amicus Curiae
NATIONAL
INSTITUTE FOR CRIME PREVENTION
AND
THE REINTEGRATION OF
OFFENDERS
...........................................
Third Amicus Curiae
Neutral
citation:
J v National Director of
Public Prosecutions and Another
[2014]
ZACC 13
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ,
Van der Westhuizen
J and Zondo J
Heard
on:
6 February 2014
Decided
on:
6 May 2014
Summary:
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
– constitutional
validity of
section 50(2)
– best interests of the child –
section 50(2)(a)
unconstitutional
ORDER
On
confirmation from the Western Cape High Court, Cape Town (per Henney
J):
1.
The second respondent’s application
for condonation is granted.
2.
The order of the Western Cape High Court,
Cape Town is set aside and replaced by the following:
a.
Section 50(2)(a)
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
is declared inconsistent with the
Constitution and invalid to the extent that it unjustifiably limits
the right of child sex offenders
to have their best interests
considered of paramount importance.
b.
The declaration of invalidity is suspended for a period of 15 months
from the date of this order to afford Parliament the opportunity
to
correct the defect in the light of this judgment.
3.
The respondents are directed by 30 July 2014 to furnish a report to
the Registrar of this Court setting out:
a.
the number of persons whose particulars were included on the National
Register for Sexual Offenders by virtue of section 50(2)(a)
who
were younger than 18 years when they committed the offence that
required their inclusion;
b.
the courts that directed that their particulars be so listed; and
c.
the dates on which the orders in question were made.
4.
There is no order as to costs.
JUDGMENT
SKWEYIYA
ADCJ (Moseneke ACJ, Cameron J, Dambuza AJ, Froneman J, Jafta J,
Khampepe J, Madlanga J, Majiedt AJ, Van der Westhuizen
J and Zondo J
concurring):
Introduction
[1]
These
are confirmation proceedings for an order of constitutional
invalidity made by the Western Cape High Court, Cape Town (High
Court). The matter concerns
section 50(2)
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act
="#_ftn1" NAME="_ftnref1">[1]
(Sexual Offences Act). It provides that a court “must
make an order” to include the particulars of a person convicted
of a sexual offence against a child or person who is mentally
disabled on the National Register for Sex Offenders (Register).
[2]
Background
[2]
The
applicant, J,
[3]
was charged
with the rape of a seven-year-old boy and two six-year-old boys in
contravention of section 3 of the Sexual Offences
Act. He was
further charged with assault with intent to cause grievous bodily
harm for stabbing a 12-year-old girl.
J was 14 years old at the
time of the commission of the offences.
[3]
In
the Magistrates’ Court, J was assisted by his mother and was
legally represented. He pleaded guilty to all four charges
and
was accordingly convicted. In relation to the three rape
charges, he was sentenced to five years’ compulsory residence
in a Child and Youth Care Centre
[4]
and a further three years’ imprisonment thereafter.
[5]
For the assault charge, he was given a suspended sentence of six
months’ imprisonment. In addition, the Magistrates’
Court made an ancillary order in terms of section 50(2) of the Sexual
Offences Act that the applicant’s particulars be entered
in the
Register. Section 50(2) provides:
“
(a)
A court that has in terms of this Act or any other law—
(i)
convicted a person of a sexual offence against a child or a person
who is mentally disabled and, after sentence has been imposed
by that
court for such offence, in the presence of the convicted person; or
(ii)
made a finding and given a direction in terms of
section 77(6)
or
78
(6) of the
Criminal Procedure Act, 1977
, that the person is by
reason of mental illness or mental defect not capable of
understanding the proceedings so as to make a proper
defence or was,
by reason of mental illness or mental defect, not criminally
responsible for the act which constituted a sexual
offence against a
child or a person who is mentally disabled, in the presence of that
person,
must
make an order that the particulars of the person be included in the
Register.
(b)
When making an order contemplated in paragraph (a), the court must
explain the contents and implications of such an order, including
section 45
, to the person in question.”
[4]
The matter came before the High Court by
way of automatic review in terms of section 85(1)(a) of the Child
Justice Act. The
High Court
mero
motu
(of its own accord) raised the
question with the Regional Magistrate and the Director of Public
Prosecutions, Western Cape (DPP)—
“
whether
it was competent for the court to make an order in terms of section
50(2) of the Sexual Offences Act if regard is had to
the provisions
of sections 2, 3 and 4 of the [Child Justice Act] dealing with the
objects of the Act, as well as section 28 of
the Constitution.”
[5]
The Regional Magistrate, in detailed
reasons for the order, and the DPP, in its written opinion, concluded
that the Magistrates’
Court was competent to make the ancillary
order and recommended that the High Court confirm it. A Full Bench
was constituted to
hear the matter.
High
Court
[6]
The
Full Bench
[6]
held that section
50(2) of the Sexual Offences Act may violate the child offender’s
rights by requiring the particulars of
a child offender to be
included in the Register. The High Court went further, however, to
hold that “because of the consequences
and impact of the
inclusion of an offender’s name in the Register, the rights of
such offender . . .
whether
a child or an adult
,
would indeed be violated.”
[7]
[7]
The
High Court considered whether the infringement was justifiable under
section 36
[8]
of the
Constitution. It held that because the legitimate
constitutional purpose of the Sexual Offences Act is to protect
victims of sexual abuse, the limitation on the offender’s
rights by section 50(2) is reasonable and justifiable in an open
and
democratic society. Regarding child offenders, the Court held
that the best interests of the child, in terms of section
28(2)
[9]
of the Constitution, may be limited. The High Court
concluded that section 50(2) precludes a court from assessing if
the
child offender truly poses a threat to others and whether indeed the
circumstances justify placing the child on the Register.
This is
because the Sexual Offences Act criminalises a broad array of conduct
and because the presiding officer lacks discretion
when making an
order to place an offender’s particulars on the Register.
[8]
Returning
to the question of adult offenders, the High Court held that the
section infringes on the offender’s right to a
fair hearing in
terms of section 34
[10]
of the
Constitution as it does not allow for an offender to make
representations to persuade a court not to make the order.
The
High Court held the infringement to be unjustifiable as it served no
legitimate constitutional purpose. It therefore
held
section 50(2) to be invalid and inconsistent with the
Constitution and ordered words to be read into the provision.
[9]
The High Court’s order reads, in
relevant part:
“
(1)
Section 50(2)
of the
Criminal Law (Sexual Offences And Related
Matters) Amendment Act No. 32 of 2007
, is declared invalid and
inconsistent with the Constitution, insofar as it does not allow the
court to inquire and decide after
affording the accused an
opportunity to make representations, whether or not the particulars
of the accused should be included
in the National Register for Sexual
Offenders.
(2)
The declaration in para (1) shall not be retrospective and its effect
shall be suspended for 18 months to afford the legislature
an
opportunity to amend section 50(2) so that it can be constitutionally
compliant.
(3)
During the period of suspension or until such sooner date as any
amendments in para (2) above come into force, section 50(2)
shall be
deemed to read as follows: (the words inserted in the existing text
are underlined for convenience).
‘
2(a)
A court that has in terms of the Act or any other law—
(i)
convicted a person of a sexual offence
against a child or a person who is mentally disabled and, after
sentence has been imposed
by that court for such offence, in the
presence of the convicted person; or
(ii)
. . . must
subject
to the provisions of paragraph (c)
,
make an order that the particulars of the person be included in the
Register.
(b)
[When]
Before
making an order contemplated in paragraph (a) the court must
explain the contents and the implications of the order, including
section 45, to the person in question.
(c)
Notwithstanding paragraph (a) above, a
court contemplated in that paragraph, may on good cause shown direct
that such person's particulars
not be included in the Register and
shall, before making an order in terms of paragraph (a) inform the
convicted person of the
court's power to make a direction under this
paragraph (c) and afford him or her an opportunity to make
representations as to whether
such a direction should be made or
not.’
”
In
this Court
[10]
Section 172(2)(a) of the Constitution
provides that “an order of constitutional invalidity has no
force unless it is confirmed
by the Constitutional Court.”
None of the parties in this Court opposes the confirmation of the
High Court’s
order.
[11]
The applicant argues that section 50(2) is
overbroad. Depending on the circumstances, a sex offender may
not pose any threat
and there is no need to protect a particular
complainant through the use of the Register. In not allowing
good cause to be
shown before an entry is made in the Register, the
provision further infringes on the offender’s right to a fair
hearing
in terms of section 34 of the Constitution.
[12]
The
state respondents
[11]
do not
oppose the confirmation of the High Court’s order. They
acknowledge that the provision imposes an unjustifiable
limitation on
the offender’s right to be heard and, consequently, on his or
her right to a fair trial. The state respondents
argue,
however, that the High Court’s order is overbroad in two
respects. First, the High Court inaccurately declared
the
entirety of section 50(2) unconstitutional when its declaration
should have extended only to section 50(2)(a) and not section
50(2)(b) as well. Second, the High Court’s order
ostensibly extends to adult offenders. While in written
submissions
it was argued that a similar challenge to the rights of
adults might not withstand constitutional scrutiny, in oral argument
the
state respondents argued that the issues before the High Court
concerned only child offenders. Accordingly, the declaration
of
constitutional invalidity should have been limited exclusively to
child offenders.
[13]
The
amici
curiae
(friends
of the Court) are Childline South Africa, the Teddy Bear Clinic for
Abused Children and the National Institute for Crime
Prevention and
the Reintegration of Offenders.
[12]
They support the confirmation of the High Court’s order
of invalidity. They argue, however, that the Court erred
in not
holding that the provision infringed unjustifiably on the applicant’s
right in terms of section 28(2) of the Constitution.
Individual
assessments of child offenders are required to cure the defect in the
provision. The
amici
further
argue that it was impermissible for the High Court to declare the
provision constitutionally invalid in relation to adults.
Issues
[14]
The primary question for determination is
whether the High Court’s declaration of constitutional
invalidity should be confirmed.
Does the provision limit
constitutional rights and, if so, can the limitation be justified in
terms of section 36 of the Constitution?
If the limitation
cannot be justified, the provision must be declared unconstitutional
and the Court must determine a just and
equitable remedy.
[15]
Before reaching the rights analysis, a few
preliminary issues arise. The second respondent’s
application for condonation
for the late filing of its written
submissions must be considered before giving a brief overview of the
statutory framework.
The scope of the confirmation proceedings
in this Court must also be clarified: should the proceedings extend
to adult offenders
as well and should subsection (b) of section 50(2)
be included in the constitutional analysis?
Condonation
[16]
The Minister was granted an extension to
file his written submissions. Upon refusing a second request
for an extension, this
Court advised that the Minister would have to
seek condonation if he filed his submissions out of time. The
submissions were
eventually filed 17 court days late.
[17]
The Minister avers that the necessary
advice and authorisation could not be secured in time because there
was a misunderstanding
on when the senior officials were to return
from their festive-season vacation. Further, the notice that the
request for a second
extension had been declined came late to the
attention of the State Attorney. The Minister’s senior
counsel was abroad
and could not draft the application for
condonation until his return. The Minister argues that he is
not adopting an adversarial
position and he does not oppose the
confirmation of the order. However, he is of the view that the
submissions will make
a meaningful contribution to the debate and
that the parties will suffer no prejudice if condonation is granted.
[18]
It is unacceptable that state parties
continue to make light of the Rules of this Court and to disrespect
other parties, the general
public and the Court by failing to comply
diligently with Court directions. The Minister had ample time to
prepare submissions
and the first request for an extension was
granted to the very date that the Minister elected. It is to
the great displeasure
of the Court that unprofessional conduct of
this nature continues to plague its proceedings. If it were not
for the fact
that the applicant’s counsel is funded by the
state, awarding costs against the Minister would have been an
appropriate consideration.
[19]
Nevertheless, it is not in the interests of
justice to refuse condonation in this instance as it would deprive
the Court of submissions
that are important to the determination of
the matter. This is in the light of the absence of evidence of
prejudice caused
to the applicant or opposition to the grant of
condonation.
Legal
provisions
[20]
Chapter 6 of the Sexual Offences Act
provides for the establishment of the Register which is to include—
“
particulars
of persons convicted of any sexual offence against a child or a
person who is mentally disabled or are alleged to have
committed a
sexual offence against a child or a person who is mentally disabled
and who have been dealt with in terms of
section 77(6)
or
78
(6) of
the
Criminal Procedure Act, 1977
, whether committed before or after
the commencement of this Chapter and whether committed in or outside
the Republic”.
[13]
The
purpose of the Register is to protect children and persons with
mental disabilities from coming into contact with sex offenders
by
informing relevant employers, licensing authorities and childcare
authorities that a particular person is listed on the Register.
[14]
[21]
A
number of adverse consequences flow from having one’s
particulars
[15]
entered on the
Register. Section 41(1) of the Sexual Offences Act provides:
“
A
person who has been convicted of the commission of a sexual offence
against a child or is alleged to have committed a sexual offence
against a child and has been dealt with in terms of
section 77(6)
or
78
(6) of the
Criminal Procedure Act, 1977
, whether committed before
or after the commencement of this Chapter, whether committed in or
outside the Republic, and whose particulars
have been included in the
Register, may not—
(a)
be employed to work with a child in any circumstances;
(b)
hold any position, related to his or her employment, or for any
commercial benefit which in any manner places him or her in
any
position of authority, supervision or care of a child, or which, in
any other manner, places him or her in a position of authority,
supervision or care of a child or where he or she gains access to a
child or places where children are present or congregate;
(c)
be granted a licence or be given approval to manage or operate any
entity, business concern or trade in relation to the supervision
over
or care of a child or where children are present or congregate; or
(d)
become the foster parent, kinship care-giver, temporary safe
care giver or adoptive parent of a child.”
[22]
An
employer, as defined in the Sexual Offences Act,
[16]
may not employ a person who is listed on the Register.
[17]
A licensing authority
[18]
may
not grant a licence or approve the management or operation of an
entity, business concern or trade relating to the supervision
or care
of children or persons with mental disabilities without determining
if the applicant for the licence is listed on the Register.
[19]
A relevant authority (referred to here for convenience as “childcare
authority”) may not consider or approve
an application of a
person for appointment as a foster parent, kinship caregiver,
temporary safe caregiver or adoptive parent without
first determining
whether the applicant is listed on the Register.
[20]
The Act imposes criminal sanctions against any employer,
[21]
licensing authority
[22]
or
childcare authority
[23]
for
contravening these provisions.
[23]
“
Employer”
is broadly defined. It includes in the targeted employment categories
any position, in the public or private sector,
in which one “gains
access” to a child or mentally disabled person or to a place
where children or mentally disabled
persons are “present”.
The potential breadth of the exclusion from work is extensive.
[24]
[24]
Further
to this, an offender is obliged, under threat of criminal sanction,
to disclose any previous sexual offences against children
or persons
with mental disabilities to an employer,
[25]
licensing authority
[26]
or
childcare authority.
[27]
On
the face of it, it may be understood that convicted offenders are
required in perpetuity to disclose the fact of their
convictions to
employers, licensing authorities and childcare authorities, even if
they are no longer listed on the Register.
[28]
[25]
Once
entered on the Register, a person’s particulars may only be
removed in limited circumstances.
[29]
In terms of section 51(2), two circumstances exist in which a
person’s details may never be removed from the Register.
This applies to persons sentenced to a period of imprisonment of over
18 months or who have two or more convictions of a sexual
offence
against a child or mentally disabled person. In the applicant’s
case, his particulars may never be removed from the
Register.
[26]
Only a court’s obligation to enter
the offender’s details on the Register was declared
unconstitutional because the
High Court exclusively targeted the
constitutional validity of section 50(2). An offender’s
obligation to disclose
previous convictions to an employer, licensing
authority or childcare authority remains as do the consequences of
one’s details
being entered on the Register.
[27]
From a plain reading of section 50 the
provision includes the registration of child offenders. Section
50(2)(a) applies to “a
person [convicted] of a sexual offence
against a child or person who is mentally disabled”. The
word “person”
applies both to children as it does to
adults: there is nothing in the Sexual Offences Act to infer that the
ordinary meaning of
the word is not applicable to children.
The
scope of the confirmation proceedings
[28]
The
High Court was seized with the application of section 50(2) to a
child offender. It raised the question of the provision’s
constitutional validity in specific application to child offenders
and in the context of the Child Justice Act. The Court’s
order,
[30]
however, makes no
distinction between child and adult offenders and its reasoning
indicates that this was deliberate.
[29]
In anticipation of the hearing, this Court
issued directions to the parties to address in written submissions
the application of
the High Court’s judgment to both adults and
children. The applicant had no objection to this Court
considering the
provision’s application to adults. He
acknowledged that different considerations may apply to adults as
opposed to
children. Nevertheless, adults and children are on
the same footing insofar as the Sexual Offences Act prohibits an
overly
broad array of sexual conduct and insofar as the provision
infringes on the offender’s section 34 right to a fair
hearing.
The state respondents and the
amici
argued that the Court should limit its consideration to child
offenders.
[30]
While
courts are empowered to raise constitutional issues of their own
accord, this power is not boundless. In order for the
interests
of justice to favour a court considering a constitutional issue of
its own accord, it is important that the issue arises
on the facts
because it is generally undesirable to deal with an issue in
abstract.
[31]
Other
issues to consider are whether declining to determine the issue would
create undesirable uncertainty or leave an issue
that was declared
unconstitutional in limbo, and whether the constitutional validity of
an issue is moot.
[32]
[31]
The facts before the High Court raised the
application of the provision to child offenders. Different
considerations apply
to child and adult offenders. These
considerations have not been ventilated properly on the facts or in
legal argument in
the Court below or in this Court, notwithstanding
the opportunity that this Court gave to the parties to make further
submissions.
It was inappropriate for the High Court to
consider the provision’s constitutional validity in relation to
adult offenders
and to extend its order to cover all offenders.
It is similarly not in the interests of justice for this Court to
make findings
on the provision’s application to adult
offenders.
[32]
The state respondents argue further that
the High Court erred in including subsection (b) of section 50(2) in
the ambit of its order.
Subsection (b) deals with the
requirement that the court must explain the contents and implications
of the order made in terms
of subsection (a) to the accused person.
This requirement does not relate to the heart of the alleged
invalidity and so should
not have been included within the ambit of
the declaration. I now focus on the constitutional validity of
section 50(2)(a),
to the exclusion of subsection (b).
Should
the order of constitutional invalidity be confirmed?
a
.
Does the provision infringe on the
rights of the child?
[33]
The
applicant submits that having one’s particulars entered on the
Register infringes that offender’s rights to dignity,
privacy,
fair labour practices, and freedom of trade, occupation and
profession.
[33]
However, the
focus of the argument follows the reasoning of the High Court: that
section 50(2) is invalid because it makes no provision
for good cause
to be shown that an order for registration should not be made. That
impedes the offender’s right to
a fair hearing in terms of
section 34
[34]
of the
Constitution.
[34]
The
state respondents argue that while the purpose of section 50(2)(a) is
constitutional, the peremptory language of the provision
is not.
The state respondents argue that “individualised justice is
required to avert injustice.”
[35]
They
contend that once it is accepted that the inclusion of an offender’s
particulars in the Register is prejudicial, the
offender should have
a reasonable opportunity to make representations. This would
respect the right to a fair trial in terms
of section 35 of the
Constitution.
[35]
The
amici
argue that the provision infringes the best interests of the child,
in terms of section 28(2) of the Constitution, which provides:
“
A
child’s best interests are of paramount importance in every
matter concerning the child.”
The
amici
are correct that the starting point for matters concerning the child
is section 28(2). This Court has held that the
“best-interests” or “paramountcy” principle
creates a right that is independent and extends beyond the
recognition of other children’s rights in the
Constitution.
[36]
The
“ambit of the [best-interests provision] is undoubtedly
wide.”
[37]
[36]
The
contemporary foundations of children’s rights and the
best-interests principle encapsulate the idea that the child is
a
developing being, capable of change and in need of appropriate
nurturing to enable her to determine herself to the fullest extent
and to develop her moral compass. This Court has emphasised the
developmental impetus of the best-interests principle in
securing
children’s right to “learn as they grow how they should
conduct themselves and make choices in the wide and
moral world of
adulthood.”
[38]
In
the context of criminal justice, the Child Justice Act affirms
the moral malleability or reformability of the child offender.
[37]
A
number of key principles arise from this approach to the best
interests of the child offender. First, the law should
generally
distinguish between adults and children.
[39]
As explained above,
[40]
section 50(2) applies, without distinction, to adult and child
offenders.
[38]
A
second important principle is that the law ought to make allowance
for an individuated approach
[41]
to child offenders. The best-interests standard should be
flexible because individual circumstances will determine which
factors secure the best interests of a particular child.
[42]
In
M
,
this Court held:
“
A
truly principled child-centred approach requires a close and
individualised examination of the precise real-life situation of
the
particular child involved. To apply a predetermined formula for
the sake of certainty, irrespective of the circumstances,
would in
fact be contrary to the best interests of the child concerned.”
[43]
[39]
Individualised
justice is foreseen in the Child Justice Act. It requires that
certain guiding principles are taken into account
in the
implementation of criminal justice concerning children. These
include that all “consequences arising from the
commission of
an offence by a child should be proportionate to the circumstances of
the child, the nature of the offence and the
interests of
society.”
[44]
[40]
A
third principle is that the child or her representatives must be
afforded an appropriate and adequate opportunity to make
representations
and to be heard at every stage of the justice
process, giving due weight to the age and maturity of the child.
[45]
This
is also accommodated in the guiding principles under the Child
Justice Act, which provide in section 3(c) that “every
child
should, as far as possible, be given an opportunity to participate in
any proceedings . . . where decisions affecting him
or her might be
taken.”
[41]
The
wording of section 50 of the Sexual Offences Act, read as a whole,
indicates that a court has no discretion whether or not to
include an
offender’s particulars on the Register. Section 50(1)
provides that the particulars of the offender “
must
be included in the Register.”
[46]
Section 50(2)(a) provides that the relevant court “
must
make
an order that the particulars of the person be included in the
Register.”
[47]
This occurs after the person has been convicted and sentenced
[48]
or after the court has made a finding in terms of
section 77(6)
or
78
(6) of the
Criminal Procedure Act.
[49
]
That a court has no discretion but to register the offender’s
particulars is affirmed in section 50(4) of the Sexual
Offences Act,
which provides:
“
Where
a court, for whatever reason, fails to make an order under subsection
(2)(a) the prosecuting authority or any person must
immediately or at
any other time bring this omission to the attention of the court
and
the court must make such order
.”
[50]
[42]
The provision requires that registration
follows automatically from conviction of and sentencing for the
particular crimes.
This infringes the best interests of the
child. The opportunity for an individuated response to the
particular child offender,
taking into account the child’s
representations and views, is excluded both at the point of
registration and in the absence
of an opportunity for review.
The limited circumstances in which an offender can apply for his or
her removal from the Register
are insufficiently flexible to consider
the particular child’s development or reform.
[43]
Being
placed on the Register bears serious consequences for the offender.
As outlined above,
[51]
restrictions are placed on the ability to work, on the ability to
license certain facilities or ventures, and on the privileges
of
certain roles in the care of children or mentally disabled persons.
While it is clear that child offenders fall within
the ambit of
“persons” to be registered under section 50(2)(a), the
consequences that flow from the provision may not
always affect the
child offender while still a child.
[52]
The impact of registration is reduced in practical terms and
varies according to the particular child’s circumstances
and
age. However, this Court has held that consequences for the
criminal conduct of a child that extend into adulthood (such
as
minimum sentences) do implicate children’s rights.
[53]
So, in the case of J, the fact that he was a child when the
offence was committed means that his rights as a child are
implicated,
albeit that the consequences of registration will, for
the most part, only be felt as an adult.
[44]
Child
offenders who have served their sentences will remain tarred with the
sanction of exclusion from areas of life and livelihood
that may be
formative of their personal dignity, family life, and abilities to
pursue a living. An important factor in realising
the
reformative aims of child justice is for child offenders to be
afforded an appropriate opportunity to be reintegrated into
society.
[54]
Furthermore, it is undoubted that there is a stigma attached to being
listed on the Register
[55]
even if the Sexual Offences Act closely guards the
confidentiality
[56]
of its
contents. Given that a child’s moral landscape is still
capable of being shaped, the compulsory registration
of the child sex
offender in all circumstances is an infringement of the
best-interests principle.
[45]
Having found that the provision limits the
child offender’s right in terms of section 28(2) of the
Constitution, it is not
necessary to consider the further
infringements alleged by the parties.
b.
Is the limitation justifiable?
[46]
The
right of the child offender in terms of section 28(2) is nevertheless
not absolute and can be limited.
[57]
Section
36 of the Constitution provides for the limitation of rights when it
is justifiable in an open and democratic society, 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.”
Context
and proportionality must be kept in mind when conducting the
limitations analysis.
[58]
[47]
The importance of the best-interests
principle cannot be gainsaid, particularly when, as here, one is
dealing with children exposed
to the criminal justice system.
How we treat and nurture our children today, including child
offenders, impacts the shared
dignity of the broader community for
years to come. It is nevertheless a laudable and legitimate
constitutional aim that
the Register seeks to achieve – to
provide spaces of safety for children and persons with mental
disabilities to learn and
grow, be it in schools, in foster homes or
places to play and socialise. Caring for and educating children
and persons with
mental disabilities is a responsibility that should
not be afforded to persons who will harm them.
[48]
Sexual
violence threatens a victim’s rights to freedom and security of
the person,
[59]
privacy
[60]
and dignity
[61]
in a profound
way. Sexual offences have effects that ripple far beyond the
horrific immediacy and physicality of the crime.
Our success or
failure as a community to prevent and protect against sexual violence
has bearing on us all, collectively and individually.
I can
think of few endeavours more important for a community than
protecting vulnerable persons in particular, such as children
and
persons with mental disabilities, from sexual abuse.
[49]
The
limitation aims to achieve a valuable purpose. The objectives
of the Register are, however, premised on the idea that
the relevant
offenders pose a risk to children and persons with mental
disabilities. And patterns of recidivism for sexual
offences
may vary significantly between adults and children.
[62]
The automatic operation of section 50(2)(a) means that the
limitation will not always achieve its purpose for child offenders.
[50]
There
are less restrictive means to achieve the aims of the Register.
Affording courts a discretion and the concomitant opportunity
to the
child offender to lead evidence and make argument on the question of
registration would permit the possibility of greater
congruence
between the limitation and its purpose. Where a court decides
on matters affecting children, discretion plays
an important role in
allowing for an individuated response to meet the child’s best
interests.
[63]
Modifications
to registration parameters (such as when registration is triggered
and how it is terminated) may also permit
for more individualised
concerns to be taken into account in a consistent fashion.
[51]
I conclude that the limitation of the right
of child offenders in section 50(2)(a) is not justified in an
open and democratic
society. While the limitation promotes
legitimate and constitutionally sound aims, there exist accessible
and direct means
to achieve the purpose that are less restrictive to
the child offender’s rights. Section 50(2)(a) is
constitutionally
invalid and must be declared so.
Remedy
[52]
Following
a declaration of constitutional invalidity, the Court is empowered to
grant a just and equitable remedy,
[64]
which may include ordering a suspension of the declaration and a
temporary reading-in, as the High Court did.
[53]
The state respondents have pointed to a
number of problems in the High Court’s order, including
that the interim reading-in
leads to inequitable results for
different categories of offenders. The applicant is in favour
of an interim reading in
but is against a retrospective
declaration of constitutional invalidity as there may be child
offenders on the Register who do
pose a threat as sexual predators.
The
amici
argued for a 12-month period of suspension of the order of
constitutional invalidity coupled with a moratorium against further
children’s particulars being placed on the Register.
This, they argued, would be a low-risk solution that is cleaner
than
the reading-in proposed.
[54]
The Legislature must be afforded time to
correct the constitutional defect, taking into account expert opinion
on the unique circumstances
of child sex offenders and victims in
South Africa. The Court is confronted with a number of
difficulties that challenge
its capacity to grant a just and
equitable interim order. The Sexual Offences Act creates
complex mechanisms regulating the
treatment of offenders following
their conviction. Of these, only section 50(2)(a) is before
us. This Court cannot
craft an interim remedy within the bounds
of our democratic limits that would not do violence to the statutory
scheme.
[55]
There
is no evidence before us that children or persons with mental
disabilities will not be harmed. This Court cannot issue a moratorium
on the registration of further child offenders or allow the
declaration to operate retrospectively. The Register fulfils
an
important purpose. Given the urgency of protecting vulnerable
persons from sexual abuse in places where they should be
safe, it is
not just and equitable for the provision to cease to operate in the
interim.
[65]
[56]
For
these reasons, section 50(2)(a) must be declared constitutionally
invalid and Parliament must be instructed to remedy the defect
within
15 months, during which period the declaration will be suspended.
Given that the rights infringements to child offenders
will continue
to operate in the interim period, a shorter period for correction of
the defect is preferred. Because the constitutionality
of
certain provisions of the Sexual Offences Act in relation to their
effect on children is already under consideration,
[66]
it is feasible that the Legislature is positioned to move on the
correction of the defects. In so doing, Parliament should
be
mindful of the operation of the Sexual Offences Act as a whole, the
disclosure provisions and the definition of “employer”
in
particular. Parliament would be advised to consider the
creation of a provision for child offenders included on the Register
to have the opportunity to motivate that their particulars be
expunged upon application.
[57]
In
the interim, however, it is necessary that some mechanism be provided
to identify those child offenders whose names have already
been
entered on the Register in conflict with the principles set out in
this judgment. This will enable them to obtain legal
advice and
assistance. That is the path this Court followed in
Centre
for Child Law
,
[67]
where minimum sentences applying to under-18s were struck down, but
only limited retrospective relief was granted. The order
that
follows provides for a similar mechanism. It is correct that
the information contained in the Register is confidential.
But,
for the purpose of salvaging the rights of children already included
in conflict with the principles set out in this judgment,
it is
necessary for the Court to require the respondents to furnish the
details in question. This is done in the exercise
of the
Court’s wide jurisdiction to make an order that is just and
equitable. The Court will in turn make the information
available to persons or organisations seeking to assist those child
offenders.
Order
1.
The second respondent’s application
for condonation is granted.
2.
The order of the Western Cape High Court,
Cape Town is set aside and replaced by the following:
a.
Section 50(2)(a)
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
is declared inconsistent with the
Constitution and invalid to the extent that it unjustifiably limits
the right of child sex offenders
to have their best interests
considered of paramount importance.
b.
The declaration of invalidity is suspended for a period of 15 months
from the date of this order to afford Parliament the
opportunity to
correct the defect in the light of this judgment.
3.
The respondents are directed by 30 July 2014 to furnish a report to
the Registrar of this Court setting out:
a.
the number of persons whose particulars were included on the National
Register for Sexual Offenders by virtue of section 50(2)(a)
who
were younger than 18 years when they committed the offence that
required their inclusion;
b.
the courts that directed that their particulars be so listed; and
c.
the dates on which the orders in question were made.
4.
There is no order as to costs.
For
the Applicant:
Advocate
M Calitz instructed by Legal
Aid
South Africa.
For
the Respondents:
Advocate
S Hassim and K Ramaimela
instructed
by the State Attorney.
For
the Amici Curiae:
Advocate
A Skelton instructed by the
Centre
for Child Law.
[1]
32
of 2007.
[2]
See
below at [3] for the full text of section 50(2).
[3]
On
6 February 2014, this Court issued an order to secure the
applicant’s anonymity as he was a child at the time of the
offences and was still a child at the time of the hearing. No
person shall publish any information which reveals, or may
reveal,
the identity of the applicant.
[4]
In
terms of
section 76(1)
of the
Child Justice Act 75 of 2008
.
[5]
Id
section 76(3).
[6]
J
v S
[2013]
ZAWCHC 114
;
2013 (2) SACR 599
(WCC).
[7]
Id at para 102. Emphasis added.
[8]
See
[46] below for the relevant portions of
section 36.
[9]
See [35] below for the full text of
section 28(2).
[10]
Section
34 of the Constitution provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[11]
During
the hearing in this Court, counsel for the second respondent, the
Minister of Justice and Constitutional Development (Minister),
indicated that she had been briefed to make her oral submissions on
behalf of the National Director of Public Prosecutions (NDPP
or
first respondent) as well as the Minister, the latter on whose
behalf her written submissions had been filed. For
convenience’s sake, I will refer to the first and second
respondents together as the “state respondents”.
[12]
The
three
amici
curiae
are
all non-profit organisations that provide support services and
programmes to children.
[13]
Section
42(1).
[14]
Section
43. See
Teddy
Bear Clinic for Abused Children and Another v Minister of Justice
and Constitutional Development and Another
[2013]
ZACC 35
;
2014 (2) SA 168
(CC);
2013 (12) BCLR 1429
(CC) (
Teddy
Bear Clinic
)
at para 57.
[15]
Section
49 requires that the following details of the offender are recorded,
amongst others: their title and full name; profession
or trade; last
known physical address, postal address and any other contact
details; identity number, passport number and driver’s
licence
number; the sexual offence of which the person is convicted; the
sentence imposed; the date and place of conviction;
prisoner
identification number; the trial court and case number; and other
particulars as prescribed by regulation.
[16]
“
Employer”
is defined in section 40 of the Sexual Offences Act as—
“
(a)
any—
(i)
department of state or administration in the national or provincial
sphere of government or any municipality in the local
sphere of
government; or
(ii)
other functionary or institution when exercising a power or
performing a duty in terms of the Constitution of the Republic
of
South Africa, 1996, or a provincial constitution or exercising a
public power or performing a public function in terms of
any
legislation,
which—
(aa)
employs employees who, in any manner and during the course of their
employment, will be placed in a position to work with
a child or in
a position of authority, supervision or care of a child or will gain
access to a child or places where children
are present or
congregate; or
(bb)
employs employees who, in any manner and during the course of their
employment, will be placed in a position to work with
a person who
is mentally disabled or in a position of authority, supervision or
care of a person who is mentally disabled or
will gain access to a
person who is mentally disabled or places where persons who are
mentally disabled are present or congregate;
or
(b)
any person, organisation, institution, club, sports club,
association or body who or which, as the case may be—
(i)
employs employees who, in any manner and during the course of their
employment, will be placed in a position of authority,
supervision
or care of a child or a person who is mentally disabled or working
with or will gain access to a child or a person
who is mentally
disabled or places where children or persons who are mentally
disabled are present or congregate; or
(ii)
owns, manages, operates, has any business or economic interest in or
is in any manner responsible for, or participates or
assists in the
management or operation of any entity or business concern or trade
relating to the supervision over or care of
a child or a person who
is mentally disabled or working with or who gains access to a child
or a person who is mentally disabled
or places where children or
persons who are mentally disabled are present or congregate”.
[17]
Section
45.
[18]
Section
40 of the Sexual Offences Act defines “licensing authority”
as—
“
any
authority which is responsible for granting licences or approving
the management or operation of any entity, business concern
or trade
relating to the supervision over or care of a child or a person who
is mentally disabled”.
[19]
Id
section 47(1).
[20]
Id
section 48(1).
[21]
Id
section 45(3).
[22]
Id
section 47(3).
[23]
Id
section 48(3).
[24]
Le Roux and Williams “Sections 40-53: National Register for
Sex Offenders” in Smythe and Pithey
Sexual
Offences Commentary: Act 32 of 2007
(Juta & Co. Ltd, Cape Town 2011) at 17-8 argue that the objects
of the Sexual Offences Act suggest that a conservative approach
is
warranted to the interpretation of these provisions. However,
the repetition of the aim to prevent “access to”
children and persons with mental disabilities in section 2(g)
of the Act and the use of the words “in any manner”
in
the definition of “employer” makes clear the breadth of
the intended exclusion from employment.
[25]
Section
46 of the Sexual Offences Act.
[26]
Id
section 47(2).
[27]
Id
section 48(2).
[28]
Le Roux and Williams above n 24 at 17-28 are of the view that by
placing these obligations on employees and potential employees,
the
Legislature aims to cover those who are convicted but not captured
on the Register.
[29]
Under
section 51(1)(a)(iii) of the Sexual Offences Act, persons who are
dealt with under
sections 77(6)
or
78
(6) of the
Criminal
Procedure Act 51 of 1977
may apply to the Registrar to have their
particulars removed after five years have lapsed since their
recovery from mental illness
and their discharge from any
restrictions placed on them in terms of the
Mental Health Care Act
17 of 2002
. Those offenders sentenced to six or fewer months’
imprisonment may apply to the Registrar to have their particulars
removed after seven years following their release or the expiration
of the period of suspension in terms of
section 51(1)(a)(ii).
For lesser sentences, a person may apply for removal after five
years have lapsed since their inclusion on the Register
(section 51(1)(b)).
Offenders sentenced to a period of
imprisonment between six and 18 months may apply to have their
particulars removed only
after 10 years following their release or
after the period of suspension has lapsed
(section 51(1)(a)(i)).
[30]
See
[9] above.
[31]
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) (
DPP
)
at para 43.
[32]
Sibiya
and Others v Director of Public Prosecutions, Johannesburg and
Others
[2005] ZACC 6
;
2005 (5) SA 315
(CC);
2005 (8) BCLR 812
(CC) at para
44.
[33]
In terms of sections 10, 14, 23(1) and 22 of the Constitution,
respectively.
[34]
As
quoted above at n 10. Conceivably, section 35, guaranteeing
the right to a fair trial, could also be relevant.
[35]
On
individualised justice, see the statement of Ngcobo J in
DPP
above
n 31 at para 120.
[36]
Minister
of Welfare and Population Development v Fitzpatrick and Others
[2000]
ZACC 6
;
2000 (3) SA 422
(CC);
2000 (7) BCLR 713
(CC) (
Fitzpatrick
)
at para 17. See also
Fraser
v Naude and Others
[1998] ZACC 13
1999 (1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) at para
9.
[37]
S
v M (Centre for Child Law as Amicus Curiae)
[2007]
ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) (
M
)
at para 15.
[38]
Id
at para 19. At para 20, the Court further expressed the role
of the law as being to “create conditions to protect
children
from abuse and maximise opportunities for them to lead productive
and happy lives.” (Footnote omitted.)
[39]
See
Centre
for Child Law v Minister of Justice and Constitutional Development
and Others
[2009] ZACC 18
;
2009 (6) SA 632
(CC);
2009 (11) BCLR 1105
(CC) at
paras 26-9, in which this Court explained the importance of
differentiating the treatment of children from that of adults:
“
The
Constitution draws this sharp distinction between children and
adults not out of sentimental considerations, but for practical
reasons relating to children’s greater physical and
psychological vulnerability. Children’s bodies are
generally
frailer, and their ability to make choices generally more
constricted, than those of adults. They are less able to
protect
themselves, more needful of protection, and less resourceful
in self-maintenance than adults.
These
considerations take acute effect when society imposes criminal
responsibility and passes sentence on child offenders.
Not
only are children less physically and psychologically mature than
adults: they are more vulnerable to influence and pressure
from
others. And, most vitally, they are generally more capable of
rehabilitation than adults.
These
are the premises on which the Constitution requires the courts and
Parliament to differentiate child offenders from adults.
We
distinguish them because we recognise that children’s crimes
may stem from immature judgment, from as yet unformed character,
from youthful vulnerability to error, to impulse, and to influence.
We recognise that exacting full moral accountability
for a misdeed
might be too harsh because they are not yet adults. Hence we
afford children some leeway of hope and possibility.
This
is not to say that children do not commit heinous crimes.”
[40]
See [27] above.
[41]
Centre
for Child Law
above
n 39 at para 32.
[42]
Fitzpatrick
above
n 36 at para 18.
[43]
M
above
n 37 at para 24. See also
AD
and Another v DW and Others (Centre for Child Law as Amicus Curiae;
Department for Social Development as Intervening Party)
[2007]
ZACC 27
;
2008 (3) SA 183
(CC);
2008 (4) BCLR 359
(CC) at para 55 in
which this Court held:
“
Child
law is an area that abhors maximalist legal propositions that
preclude or diminish the possibilities of looking at and evaluating
the specific circumstances of the case. . . . This means that
each child must be looked at as an individual, not as an
abstraction.”
[44]
Section 3(a).
[45]
C
and Others v Department of Health and Social Development, Gauteng,
and Others
[2012]
ZACC 1
;
2012 (2) SA 208
(CC);
2012 (4) BCLR 329
(CC) at para 27.
Section 10 of the Children’s Act 38 of 2005 embodies this
component of the best-interests principle
in requiring that every
“child that is of such an age, maturity and stage of
development as to be able to participate in
any matter concerning
that child has the right to participate in an appropriate way and
views expressed by the child must be
given due consideration.”
See also Article 12 of the Convention on the Rights of the Child,
November 20, 1989, 1577
UNTS 3;
28
ILM 1456
(1989), which obliges state parties to ensure that a child who is
capable of forming his or her own views enjoys the right to
express
those views in matters affecting the child and that those views be
given due weight. See, in this respect, Committee
on the
Rights of the Child, “General Comment No 12 (2009): The right
of the child to be heard” Fifty-first Session,
20 July 2009,
CRC/C/GC/12 at paras 1 and 15. At para 57, the Committee
affirmed that the right extends “throughout
every stage of the
process of juvenile justice.” See also Committee on the
Rights of the Child, “General Comment
No 10 (2007): Children’s
rights in juvenile justice” Forty-fourth Session, 25 April
2007, CRC/C/GC/10 at paras 12
and 43-5.
[46]
Emphasis
added.
[47]
Emphasis
added.
[48]
See
the wording of section 50(2)(a)(i).
[49]
Section
50(2)(a)(ii).
[50]
Emphasis
added.
[51]
See
[21] above.
[52]
For
example, it is a criminal offence to employ a child under 15 years
in terms of
section 43
of the
Basic Conditions of Employment Act 75
of 1997
. It would therefore have no effect with respect to
employment restrictions to have a child under 15 on the Register
until
such a time as the child becomes eligible to be employed.
Similarly, licensing authorities and childcare authorities may
be
unlikely to grant licences and authorise custodial care of a child
to another child. In terms of
section 231(2)(c)
of the
Children’s Act, a prospective adoptive parent must be over the
age of 18 years. While there is no explicit
requirement in the
Children’s Act that foster parents must be over the age of 18
years, it is “inconceivable that
a children’s court
could ever regard a child as a suitable person to be entrusted with
the foster care of another child.”
(Schäfer
Child
Law in South Africa: Domestic and International Perspectives
(LexisNexis, Durban 2011) at 468.)
[53]
Centre
for Child Law
above
n 39 at para 35.
[54]
See,
for example,
S
v Saayman
2008 (1) SACR 393
(ECD) at 403B-C in which Pickering J discusses the
role of reintegration within a restorative approach to criminal
justice.
[55]
Teddy
Bear Clinic
above
n 14
at
para 57.
[56]
Section
52 of the Sexual Offences Act.
[57]
M
above
n 37 at para 25-6. See also
Teddy
Bear Clinic
above n 14 at para 79 and
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 55.
[58]
M
above
n 37 at para 37.
[59]
Section
12 of the Constitution.
[60]
Id
section 14.
[61]
Id
section 10.
[62]
The
particular nature of recidivism in child sexual offenders has been
researched by a number of writers. Examples include:
Grover
“Delinquency and Punishment: The Impact of State v. Williams
on Juvenile Sex Offender Registration in Ohio”
(2013) 81
University
of Cincinnati Law Review
291 at 302; Human Rights Watch
Raised
on the Registry: The Irreparable Harm of Placing Children on Sex
Offender Registries in the US
(Human Rights Watch, United States of America 2013); Jaffé
“Child and adolescent abusers – For a rehabilitative
approach driven by scientific evidence” in Council of Europe
Protecting
children from sexual violence: A comprehensive approach
(Council of Europe Publishing, Strasbourg 2010) at 225 and 231;
Lussier and Blokland “The adolescence-adulthood transition
and
Robin’s continuity paradox: Criminal career patterns of
juvenile and adult sex offenders in a prospective longitudinal
birth
cohort study” (2013) 42
Journal
of Criminal Justice
153.
Available at
http://dx.doi.org/10.1016/j.jcrimjus.2013.07.004
,
accessed on 3 March 2014; Piquero et al “Sex offenders and sex
offending in the Cambridge study in delinquent development:
prevalence, frequency, specialization, recidivism, and
(dis)continuity over the life-course” (2012) 35
Journal
of Crime and Justice
412 at 412;
Reingle
“Evaluating the continuity between juvenile and adult sex
offending: a review of the literature” (2012) 35
Journal
of Crime and Justice
427;
Vess
et al “International sex offender registration laws: research
and evaluation issues based on a review of current scientific
literature” (2013) 14
Police
Practice
and Research: An International Journal
205 at 209
;
and
Zimring et al “Investigating the continuity of sex offending:
Evidence from the second Philadelphia birth cohort”
(2009) 26
Justice
Quarterly
58.
[63]
DPP
above
n 31 at paras 120 and 123.
[64]
Section 172(1) of the Constitution.
[65]
I
am aware of the existence of the National Child Protection Register,
operating in terms of sections 111-28 of the Children’s
Act.
While the National Child Protection Register may afford similar
protections to children as does the Register under
present
consideration, no independent register exists in my knowledge to
protect persons with mental disabilities. However,
insofar as
there is any similarity or overlap with the Register presently under
consideration, it would be prudent for the Legislature
not to
consider section 50(2)(a) of the Sexual Offences Act in isolation.
[66]
See
Teddy
Bear Clinic
above n 14.
[67]
Above n 39.