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[2015] ZACC 16
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Acting Speaker of the National Assembly v Teddy Bear Clinic for Abused Children and Another (CCT 54/15) [2015] ZACC 16; 2015 (10) BCLR 1129 (CC) (15 June 2015)
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Heads of arguments
CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 54/15
DATE: 15 JUNE 2015
In the matter between:
ACTING SPEAKER OF THE NATIONAL
ASSEMBLY
.....................................................
Applicant
And
TEDDY BEAR CLINIC FOR ABUSED
CHILDREN
..............................................
First
Respondent
RAPCAN
...................................................................................................................
Second
Respondent
Neutral citation:
Acting
Speaker of the National Assembly v Teddy Bear Clinic for Abused
Children and Another
[2015] ZACC 16
Coram:
Moseneke
DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Molemela
AJ, Nkabinde J, Theron AJ and Tshiqi AJ
Judgment:
Nkabinde J (unanimous)
Heard
on:
7 May 2015
Order
on:
13 May 2015
Reasons
on:
15 June 2015
Summary:
Extension
of period of suspension of declaration of invalidity — factors
to be considered — urgency — explanation
sufficient
ORDER
On
application for direct access to this Court:
1.
Paragraph
1 of the order made by this Court on 31 March 2015 is varied so that
the period of suspension is extended until Wednesday,
5 August 2015.
2.
Costs
are awarded in favour of the respondents.
REASONS FOR ORDER
NKABINDE J (Moseneke DCJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Madlanga J, Molemela AJ, Theron AJ
and Tshiqi AJ concurring):
Introduction
[1]
The applicant launched an urgent
application for direct access to this Court concerning the
declaration of invalidity granted in
Teddy
Bear Clinic.
[1]
In that case, sections 15 and 16 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act
[2]
(Act) were declared inconsistent with the Constitution and
invalid.
[3]
The declaration of invalidity was suspended, and the applicant
now seeks an extension of that suspension period. The
hearing
of the urgent application was preceded by an order granting a limited
extension of the suspension from 2 April 2015 until
15 May 2015.
The issue for determination when the application was heard on
7 May 2015 was whether the
period of suspension should be
extended further to 5 August 2015.
[2]
On
13 May 2015, this Court, having read the papers and considered the
parties’ written and oral submissions, granted the requested
extension to 5 August 2015. These are the reasons
that motivated the granting of the extension.
Parties
[3]
The applicant is the Acting Speaker of the
National Assembly (Acting Speaker).
[4]
The first respondent is Teddy Bear Clinic for Abused Children.
It is 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 respondent is Resources Aimed at the Prevention of Child
Abuse and Neglect (RAPCAN). It
is also a not-for-profit
organisation dedicated to the prevention of child victimisation and
the promotion of children’s
rights. Both organisations
(respondents) are represented in this Court by the Centre for Child
Law.
Background
[4]
On 3 October 2013 this Court, in
Teddy
Bear Clinic
, declared sections 15 and
16 of the Act to be inconsistent with the Constitution and invalid to
the extent that they impose criminal
liability on children under the
age of 16 for engaging in consensual sexual conduct.
[5]
The bases for the declaration were that the sections infringed: (1)
the rights of 12 to 16 year olds (adolescents) to dignity
and privacy
provided for in sections 10 and 14 of the Constitution and (2) the
best interests of the child principle provided for
in section 28(2)
of the Constitution. The declaration of invalidity was
suspended for a period of 18 months from the date
of judgment to
enable Parliament to correct the defects. To ensure that the
unconstitutional state of affairs did not continue
during the period
of suspension, the Court ordered that a moratorium be placed on
activities in relation to sections 15 and 16
pending Parliament’s
correction of the defects in the Act. The moratorium was placed
on all investigations into, arrests
and prosecutions of, and criminal
and ancillary proceedings against adolescents and children 16 years
and younger. It was
said that this moratorium would put in
abeyance any related reporting obligations which may otherwise have
arisen from the operation
of section 54 of the Act.
[6]
[5]
On 30 March 2015 the Acting Speaker
launched an urgent application seeking an extension of the period of
suspension to 5 August
2015. The next day, on 31 March 2015,
this Court considered that it would be in the interests of all
parties to
allow for the filing of written submissions and an oral
hearing. The Court granted a short extension to 15 May 2015 so
that
the application could be heard before the declaration of
invalidity came into effect on 2 April 2015.
[7]
[6]
At
the hearing, the issue for determination was narrow: whether the
further extension to 5 August 2015 should be granted.
Acting Speaker’s submissions
[7]
The
Acting Speaker contended that it was not through any dilatoriness on
his part that an extension was sought. He submitted
that the
work required to comply with the order is at an advanced stage.
Broadly, the steps taken since 3 October 2013, the
date of
judgment in
Teddy Bear Clinic
,
until the application was ultimately lodged were the following:
(a) From October 2013 to February 2014, the
Department of Justice and Correctional Services (Department) engaged
in internal discussions
regarding how best to correct the defects
identified by this Court;
(b) From February
2014 until May 2014, the government delayed the process to await this
Court’s judgment in
J v NDPP
;
[8]
(c) By 31 July 2014 a
draft amendment Bill was finalised for public comment; and
(d) From October 2014 until March 2015 the
public consultation process was undertaken.
[8]
It is to the final process that the Acting
Speaker attributes the need for an extension of the suspension
period. The applicant
avers that the public consultation
process undertaken resulted in a considerably greater degree of
public participation than had
been anticipated. It further
averred that the extension would permit Parliament to comply with its
constitutional obligations
under sections 59(1) and 72(1) of the
Constitution by allowing for a full engagement with the public in
respect of the prospective
amendments.
[9]
[9]
The main reason advanced for the date of 5
August
2015 was that it would bring the
period of suspension in line with that set by this Court in
J
v NDPP
. The Acting Speaker
contended that the Minister for Justice and Correctional Services
(Minister) was considering the amendments
to sections 15 and 16
together with those to section 50(2)(a), thereby addressing
concerns in both
J v NDPP
and
Teddy Bear Clinic
simultaneously.
[10]
The Acting Speaker also highlighted that this Court, in
Teddy
Bear Clinic,
recognised the sensitivity
of the subject matter of the impugned provisions and the high degree
of public scrutiny it would attract,
thus finding that Parliament is
institutionally best-suited to ensure that the ultimate statutory
regime is decided upon in an
open, inclusive and transparent manner.
It is contended that no prejudice would result if the extension is
granted in the light
of the moratorium imposed by the Court during
the suspension period.
Respondents’ submissions
[10]
The
respondents expressed gratitude to the Portfolio Committee on Justice
and Correctional Service (Committee) for the work done
in the process
of amending the legislation. Having closely observed the work
of the Committee and the significant volume
of submissions received,
the respondents did not oppose the granting of the extension,
especially given that the amendments necessitated
by
Teddy
Bear Clinic
and
J
v NDPP
are being considered in a single
Bill. However, they remained steadfast that they would oppose
any application for extension
beyond 5 August 2015. The primary
reason for their opposition was that last minute proposals were made
by the Department,
after the public consultation period had closed,
which they view to be a “radical departure” from the
draft Bill that
was the subject of that consultation. This, in
their view, could necessitate a further application.
Legal principles
[11]
The Constitution empowers this Court to
make a just and equitable order, following a declaration that
impugned provisions are invalid
for being inconsistent with the
Constitution.
[11]
A just and equitable remedy includes an order suspending the
declaration of invalidity for a period determined by the Court
to
enable Parliament to correct the defects.
[12]
When Parliament fails to correct the defects during the period
of suspension, an application requesting an extension must
be made
before the suspension period expires.
[13]
[12]
Although the extension was sought during
the period of suspension, it is well established that the power to
suspend must, for the
sake of finality, be sparingly exercised.
[14]
Factors which the Court will take into account, when exercising
its broad remedial powers under section 172(1) of the Constitution,
include: the sufficiency of the explanation for failing to correct
the defect within the period of suspension; the prejudice likely
to
be suffered if the suspension is not extended; the prospects of
correcting the defect within the extended period; as well as
the need
to promote a functional and orderly state administration for the
benefit of the general public.
[15]
I address these factors below, but before I do so, I deal first
with the manner in which this Court was approached and the
reasons
for urgency.
[13]
As an indication of the effort to comply,
the Acting Speaker cited the fact that the Committee wrote a letter
to the Speaker on
5 February 2015, requesting her to approach this
Court for an extension.
[16]
On 5 March 2015 it was decided that an extension should be sought.
Funding was only approved on 24 March 2015.
The urgent
application was lodged on 30 March 2015, allowing the Court
approximately two days within which to enable
the respondents to file
opposing papers and consider the merits of the application.
[14]
The
explanation proffered for the urgency is somewhat unsatisfactory.
There is no explanation on the papers for the delay
of a full 19 days
between the decision being taken and funding being approved.
Yet this Court was expected to consider the
respondents’ papers
and decide the application within three days. This should not
be countenanced.
[15]
Evidently
the Acting Speaker was aware, or ought to have been aware, at least
by December 2014, when the draft Bill was advertised
for public
comment, that the defects in the impugned provisions would not be
corrected before 2 April 2015. Nonetheless,
the application was
launched at the eleventh hour. This Court is not
institutionally designed to consider urgent applications
of this
kind. All state institutions must with due deference to
the rule of law, the separation of powers and the
accepted checks and
balances treat this Court with the respect which the Court
accords to organs of state in its dealing
with them. It bears
repeating that the kind of tardiness exemplified in this case should
not be countenanced in the future.
Sufficiency of the explanation for extension
[16]
That said, the explanation by the Acting
Speaker for the delay in implementing this Court’s order is,
however, adequate.
The responses from the public consultation
process were extensive and deserved proper consideration.
Indeed, the Constitution
mandates it. In addition, there is
reason in Parliament’s decision to deal with the amendments to
the Act occasioned
by this Court’s judgments in
Teddy
Bear Clinic
and
J
v NDPP
, in a single Bill. The
principle of separation of powers means that courts ought to be wary
of directing Parliament as to
how to regulate its own processes, and
where possible, permit Parliament to proceed with those it seeks to
pursue in giving effect
to its constitutional obligations.
[17]
[17]
Although the order was directed to
Parliament to correct the defects in the impugned provisions, one
cannot discount the belated
proposals by the Department which might
have added to the delay. Contrary to the Acting Speaker’s
submissions, the
respondents raised concerns regarding these
proposals not so that this Court may pronounce on their validity, but
to identify a
factor that suggests that the process may not be
completed within the proposed period of extension. At the
hearing, however,
this Court was assured, repeatedly, that Parliament
will complete the process within the extended period and that there
is no possibility
of an application for a further extension. We
had, and still have, no reason to doubt the veracity and good sense
of the
Acting Speaker’s counsel in this respect, and are thus
not in a position to regard those proposals as a challenge to the
ability of Parliament to comply with the timeline.
Prejudice and whether the extension will be just and
equitable
[18]
The question remains whether prejudice is
likely to be suffered if the period of suspension is not extended.
The parties submitted
that no prejudice would ensue in the light of
the moratorium imposed by the Court. It is correct that the
moratorium would
continue to be operative. However, despite the
parties’ submissions that no prejudice is likely to be
suffered, we
should be mindful of the reasons why the declaration of
invalidity was suspended in the first place. Potential
remedies,
including severance and reading-in, were considered by this
Court in
Teddy Bear Clinic
.
[18]
Notably, the Court held that these remedies might have “unintended
consequences in relation to the operation of the
Act as a whole”.
[19]
[19]
The
Court considered that a “holistic legislative revision by
Parliament would be more appropriate”. Khampepe
J said:
“
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 [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 [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.
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. .
. . 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.
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.”
[20]
(Footnotes omitted.)
These remarks remain apposite. It follows
that a further extension would, in the circumstances, promote an
orderly state administration
for the benefit of the general public
and be just and equitable.
Costs
[20]
As to costs, at the same time as granting
the extension, this Court granted costs in favour of the
respondents. Although the
respondents did not ultimately oppose
the extension, there were cogent reasons why they filed papers and
made submissions.
[21]
The applicant correctly conceded, at the hearing, that the
respondents are entitled to their costs, hence the costs award.
For the Applicant: L G Nkosi-Thomas SC and
G Ngcangisa
For the First and Second Respondents: A M Skelton
Instructed by the Centre for Child Law.
Instructed by the State Attorney.
[1]
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
).
[2]
32 of 2007.
[3]
The relevant parts of the order in
Teddy
Bear Clinic
read:
“
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,
when 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.”
[4]
Although Parliament was not cited in the
proceedings in
Teddy Bear Clinic
,
the declaration of invalidity was suspended in order to allow
Parliament, the institution best-suited to balance the competing
interests this sensitive topic raises, to correct the defect in the
invalid sections.
[5]
Section 15 deals with the criminalisation of
“sexual penetration”, commonly known as statutory rape,
while section
16 deals with the criminalisation of “sexual
violation”, commonly known as statutory sexual assault.
It is
important to note that the criminalisation of non-consensual
sexual offences, including rape and sexual assault, whether
committed
by adults, adolescents or children, was not under
challenge in that case. In addition, no party challenged the
prohibition
against “consensual” sexual activity between
adults and adolescents or between adults and children. The
case
concerned only the criminalisation of consensual sexual
activities between adolescents.
[6]
Above n 1 at para 111.
[7]
The order of 31 March 2015 reads:
“
The Constitutional Court has considered
the application for a six-month extension of its previous order
suspending the declaration
of constitutional invalidity. It
has concluded that it would be in the interests of all parties to
allow for oral hearing
and the filing of written submissions as
directed. Accordingly, it is appropriate to grant a short
extension as set out
in the order below.
Order:
1. Paragraph 2 of the order made by this Court on 3
October 2013 in the matter of
Teddy Bear Clinic for Abused
Children and Another v Minister of Justice and Constitutional
Development and Another
(CCT 12/13)
[2013] ZACC 35
is varied so
that the period of suspension is extended until Friday, 15 May 2015.
2. The issue of costs will be decided together with
the merits of the application.”
[8]
J v National Director of Public Prosecutions
and Another
[2014] ZACC 13
;
2014 (7)
BCLR 764
(CC);
2014 (2) SACR 1
(CC) (
J
v NDPP
).
In this case, this Court ultimately found section 50(2)(a) of
the Act invalid in so far as it precluded judicial discretion
in
determining whether the particulars of persons convicted of sexual
offences against children or mentally disabled individuals
be
recorded in the National Register for Sexual Offenders.
[9]
Section 59(1) provides:
“
The National Assembly must—
(a)
facilitate
public involvement in the legislative and other processes of the
Assembly and its committees; and
(b)
conduct
its business in an open manner, and hold its sittings, and those of
its committees, in public, but reasonable measures
may be taken—
(i)
to
regulate public access, including access of the media, to the
Assembly and its committees”.
Section 72(1) provides:
“
The National
Council of Provinces must—
(a)
facilitate
public involvement in the legislative and other processes of the
Council and its committees; and
(b)
conduct
its business in an open manner, and hold its sittings, and those of
its committees, in public, but reasonable measures
may be taken—
(i)
to
regulate public access, including access of the media, to the
Council and its committees”.
[10]
See
Teddy Bear Clinic
above n 1 and
J v NDPP
above n
8.
[11]
Section 172(1) of the Constitution provides:
“
When deciding a constitutional matter
within its power, a court—
(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—
(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.”
[12]
Id.
[13]
Ex Parte Minister of Social Development and
Others
[2006] ZACC 3
;
2006 (4) SA 309
(CC);
2006 (5) BCLR 604
(CC) (
Ex Parte
Minister of Social Development
) at
para 27.
[14]
Cross-Border
Road Transport Agency v Central African
Road Services (Pty) Ltd and Another
[2015] ZACC 12
at para 50 and
Zondi v
MEC Traditional and Local Government Affair, and Others
[2004] ZACC 19
;
2006 (3) SA 1
(CC);
2006 (3) BCLR 423
(CC) (
Zondi
)
at para 47.
[15]
Zondi
id.
See also
Minister for Transport and
Another v Mvumvu and Others
[2012]
ZACC 20
;
2012 (12) BCLR 1340
(CC) at para 7 and
Ex
Parte Minister of Social Development
above n 13 at para 50.
[16]
The Committee’s intention to approach this
Court was announced on the government website on 3 February 2015.
[17]
See sections 55 and 57(1) of the Constitution and
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 para 66.
In this case the Court said:
“
The other consideration a court must
keep in mind is the principle of the separation of powers and,
flowing therefrom, the deference
it owes to the Legislature in
devising a remedy for a breach of the Constitution in any particular
case. It is not possible
to formulate in general terms what
such deference must embrace, for this depends on the facts and
circumstances of each case.
In essence, however, it involves
restraint by the Courts in not trespassing onto that part of the
legislative field which
has been reserved by the Constitution, and
for good reason, to the Legislature.”
[18]
These remedies were granted by the High Court in
The Teddy Bear Clinic For Abused
Children v Minister of Justice and Constitutional Development
2013 JDR 0025 (GNP) and were motivated for in this Court by the
respondents.
[19]
Teddy Bear Clinic
above n 1 at para 108.
[20]
Id at paras 107-10.
[21]
These were: (1) that there was reason to believe
that the defect may not be corrected within the extended period; (2)
that there
was a period in the delay in the execution of this
Court’s order that may not have been satisfactory; and (3)
that any
further extension would be opposed.