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[2013] ZAWCHC 114
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Johannes v S (TSOC 73/12) [2013] ZAWCHC 114; [2013] 4 All SA 483 (WCC); 2013 (2) SACR 599 (WCC) (21 August 2013)
[REPORTABLE]
THE REPUBLIC OF
SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
High Court Ref. No: 121226
Case No. : TSOC 73/12
Magistrate/s Serial No: 26/12
Coram: Fourie J, Steyn J et Henney J
In the matter between:
IVAN JOHANNES
........................................................................................................
Applicant
and
THE STATE
.............................................................................................................
Respondent
JUDGMENT DELIVERED ON
21 AUGUST 2013
HENNEY, J
[1] This is an automatic review in
terms of the provisions of s 85(1)(a) of the Child Justice Act 75 of
2008, (‘the CJA’).
[2] The accused, at the time of the
commission of the offence, was a 14 year old minor. He was charged
with 3 counts of rape in
contravention of s 3 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act No. 32 of 2007
(‘the Sexual
Offences Act’), in that he raped, by anally
penetrating, three young boys, one being 7 years old and the other
two being
6 years old.
[3] The fourth charge was one of
assault with the intent to do grievous bodily harm, where the accused
had allegedly stabbed a 12
year old girl with a knife.
[4] The accused was legally
represented, he pleaded guilty to all these charges, was convicted
and in respect of the three rape
convictions he was sentenced to
compulsory residence in Eureka, a Child and Youth Care Centre, for a
period of five (5) years,
in terms of the provisions of s 76(1) of
the CJA.
[5] In addition, he was sentenced to
three (3) years imprisonment after the completion of the five (5)
years compulsory residence,
in terms of the provisions of s 76(3) of
the CJA.
[6] In respect of the conviction of
assault with intent to do grievous bodily harm, he was sentenced to
six (6) months imprisonment
suspended for a period of three (3) years
on condition that he is not convicted of assault committed in the
period of suspension.
[7] In addition to the sentence, an
ancillary order in terms of s 50(2) of the Sexual Offences Act was
made, which had the effect
that the accused’s name would be
entered in the National Register for Sexual Offenders (‘the
Register’).
[8] The question was raised by the
High Court with the Regional Magistrate and the Director of Public
Prosecutions Western Cape
(‘the DPP’) whether it was
competent for the court to make an order in terms of s 50(2) of the
Sexual Offences Act
if regard is to be had to the provisions of s 2,
3 and 4 of the CJA dealing with the objects of the Act as well as the
provisions
of s 28 of the Constitution of the Republic of South
Africa, 108 of 1996. The DPP was requested to provide this court with
an opinion
on the matter.
[9] Both the Regional Magistrate, in
his detailed reasons for the order, as well as the DPP concluded that
an order in terms of
s 50(2)(a)(ii) at the Sexual Offences Act was a
competent order for the Court to make and recommended that this court
should confirm
the order.
[10] The Acting Judge President of
this division, due to the importance of this issue, directed that a
full bench of this court
be constituted with Justice
Fourie
as
the Presiding Judge
, Steyn J
and I. The hearing of this
special review took place on
3 May 2013
.
[11] Mr Klopper appeared for the
accused. Ms Skelton on behalf of the Centre for Child Law acted as
amicus
curiae
and presented argument in this matter. Ms
Currie-Gamwo appeared on behalf of the office of the DPP and Mr
Tsegari appeared on behalf
of the Minister of Justice and
Constitutional Development, (the ‘Minister’).
[12] In terms of s 50(2)(a)(i) of the
Sexual Offences Act, a court that has 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 an offence, in
the presence of
a convicted person,
must
make an order that
the particulars of the person be included in the Register. (Own
emphasis here as elsewhere).
[13] Given the particular facts of
this matter and given that the accused (‘the child’) was
a 14 year old boy who had
been dealt with in terms of the CJA,
various crucial questions arise out of the granting of an order that
the child’s name
be entered in the Register.
[14] These are, whether such an
ancillary order is a competent order for a Child Justice Court to
make in terms of the
Child Justice Act; and
, if so, whether a Court
is c
ompelled
to make such an order in respect of a minor who
has been convicted of a sexual offence against a child, irrespective
of the circumstances
of the case.
Applicable Legal Provisions
[15] The Sexual Offences Act, which
came into operation on 27 December 2007, has as its purpose …
‘
To 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
…’
[16] Its further purpose is to repeal
the common law offence of rape and indecent assault and also to
create a number of new statutory
offences in dealing with certain
instances of deviant sexual behaviour.
[17] The offences are created and set
out in Chapters 2, 3 and 4 of the Act. Chapter 2 of the Act deals
with rape, compelled rape,
sexual assault, and compelled sexual
assault. Chapter 3, Parts 1, 2 and 3, deal specifically with sexual
offences against children
and has as its object specifically the
protection of children against sexual exploitation. A number of
sexual acts against children
are outlawed, including acts of
consensual sexual penetration and consensual sexual violation, sexual
exploitation of children,
etc. Chapter 4 deals with sexual offences
committed against persons who are mentally disabled.
[18] Section 42 of the Sexual Offences
Act, in its endeavour to further protect children, makes provision
for the establishment
of a National Register for Sex Offenders and in
terms of this section it is the responsibility of the Minister of
Justice and Constitutional
Development to designate a fit and proper
person as the Registrar of the National Register for Sex Offenders.
[19] The object of this register is
set out in s 43 of the Sexual Offences Act and is aimed at protecting
children and persons who
are mentally disabled by:
(a) establishing
and maintaining a record of persons who-
(i) have
been convicted of a sexual offence against a child or a person who is
mentally disabled, whether committed
before or after the commencement
of this Chapter and whether committed in or outside the Republic; or
(ii) are
alleged to have committed a sexual offence against a child or a
person who is mentally disabled in respect
of whom a court, whether
before or after the commencement of this Chapter-
(aa) in
the Republic has made a finding and given a direction in terms of
section 77
(6) or
78
(6) of the
Criminal Procedure Act, 1977
; or
(bb) outside
the Republic has made a finding and given a direction contemplated in
subparagraph (aa) in terms of
the law of the country in question;
(b) informing an
employer applying for a certificate as contemplated in this Chapter
whether or not the particulars
of an employee contemplated in
section
45
(1) (a) or (b) are contained in the Register;
(c) informing
a licensing authority applying for a certificate as contemplated in
this Chapter whether or not the
particulars of an applicant
contemplated in
section 47
are contained in the Register; and
(d) informing
the relevant authorities dealing with fostering, kinship care-giving,
temporary safe care-giving,
adoption or curatorship applying for a
certificate as contemplated in this Chapter whether or not the
particulars of an applicant,
as contemplated in
section 48
, have been
included in the Register.
Definitions
[20] Certain definitions are set out
in
s40
which are important for the purposes of the Register. These
are:
[21]
‘
Employer’
refers to persons who employ employees who in any manner during the
course of their employment will be placed in a position to
work with
a child (or mentally disabled person) or in a position of authority,
supervision or care of a child (or mentally disabled
person) or will
gain access to a child (or mentally disabled person) or places where
children (or mentally disabled persons) are
present or congregate.
[22] This definition is applicable to
government departments in all spheres of government, a private
person, organisation, institution,
club or sports club and
association. It is furthermore applicable to anyone who 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
or trade relating
to the supervision of a child or mentally disabled person, or who
works with or gains access to a child or a
person who is mentally
disabled. The words
employ, employing, employed
and
employment relationship
have corresponding meanings.
[23] A ‘
licensing
authority’
is defined as any authority which is
responsible for the granting of 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.
[24] ‘
relevant
authority’
refers to: any department of state or
administration in the national or provincial sphere of government or
any municipality in the
local government sphere; or other functionary
or institution when exercising a power or performing a duty in terms
of the Constitution
of South Africa, or a provincial constitution or
exercising a public power or performing a public function in terms of
any legislation,
which is tasked with considering applications from
prospective foster parents, kinship care-givers, temporary safe
care-givers,
adoptive parents or curators.
[25] Section 44 of the Sexual Offences
Act sets out a number of persons/authorities who are entitled to
apply for a certificate
indicating whether the particulars of a
person mentioned in the application has been included in the
Register. Such persons include
an employer/employee as contemplated
in s 45(1), a licensing authority in respect of an applicant
mentioned in s 47(1) and
a relevant authority in respect of an
applicant as contemplated in s 48(1).
Obligations imposed by the Sexual
Offences Act in relation to the Register
[26] In terms of s 47(1) a licencing
authority has an obligation not to grant a licence to or approve the
management or operation
of any entity, business concern or trade in
relation to the supervision or care of a child or a person who is
mentally disabled,
without having determined from the Registrar
whether or not the particulars of such a person have been recorded in
the Register.
[27] In terms of s 47(3) any licencing
authority who intentionally contravenes s 47 is guilty of an
offence.
[28] In terms of s 48(1) a relevant
authority may not consider an application or approve the appointment
of a person as a foster
parent, kinship care-giver, temporary safe
care-giver, an adoptive parent or curator without having determined,
by way of an application
whether or not the particulars of such a
person have been recorded in the Register.
[29] Similarly, any relevant authority
under the circumstances as set out in s 48 who contravenes any of the
provisions of the section
is guilty of an offence.
[30] In terms of s 46 an employee in
the employ of an employer who is or was convicted of a sexual offence
against a child or a
person who is mentally disabled, or is alleged
to have committed a sexual offence against a child or a person who is
mentally disabled
and who has been dealt with in terms of ss 77(6) or
78(6) of the CPA must disclose such a conviction or finding to his
employer.
[31] A person who has been convicted
of a sexual offence against a child or a person who is mentally
handicapped, or who is alleged
to have committed a sexual offence
against a child or mentally handicapped person and has been dealt
with in terms of ss 77(6)
or 78(6) of the CPA, is under an obligation
to disclose such fact if he/she applies for a licence in terms of s
47(1) to manage
or operate any business, or entity or trade in
relation to the supervision or care of a child, or a person who is
mentally disabled.
[32] In terms of s 48(2) a person who
applies to become a foster parent, kinship care-giver, temporary safe
care-giver, an adoptive
parent or a curator, must disclose that he or
she has been convicted of a sexual offence against a child or a
person who is mentally
disabled or is alleged to have done so and has
been dealt with in terms of ss 77(6) or 78(6) of the CPA.
[33] In terms of s 45(2) an employer
shall, subject to sub-paragraph (d), not continue to employ an
employee whose particulars are
recorded in the Register. An employer
must immediately terminate a person’s employment if he or she
fails to disclose a conviction
of a sexual assault against a child or
person who is mentally disabled and who had been dealt with in terms
of ss 77(6) or 78(6)
of the CPA.
[34] An employer must also in terms of
the provisions of s 45(2)(d) take reasonable steps to prevent an
employee whose particulars
had been entered into the Register from
continuing to gain access to a child or a person who is mentally
disabled, in the course
of his or her employment. Such a person, if
it is reasonably possible or practicable, may also be transferred
from their current
post or position to another post or position. If
such steps taken cannot ensure the
safety of the child at risk, the
employment relationship or, the use or access to services, as the
case may be, must be terminated
immediately. In terms of s 45(3)
an employer who fails to comply with the provisions of s 45 is guilty
of an offence.
[35] An employee who fails to disclose
that he or she had been convicted of, or had been alleged to have
committed, a sexual offence
against a child or mentally disabled
person and who has been dealt with in terms of ss 77(6) or 78(6), is
guilty of an offence
in terms of the provisions of s 46(3).
Particulars to be entered in the
Register
[36] In terms of s 49(b), apart from
the personal particulars of the person whose name must be entered
into the Register,
inter alia
the following further
information must also be recorded:
(i) The sexual offence against the
child or mentally disabled person in respect of which the offender
was convicted;
(ii) The sentence imposed and the date
and place of conviction and sentence;
(iii) The court where the trial took
place and the case number;
(iv) Where it is alleged that a person
has committed a sexual offence and had been referred to a medical
institution in terms of
the provisions of ss 77(6) and 78(6) of the
CPA, the name of such institution should also be recorded.
[37] Of further relevance are the
provisions of ss 50(1) and 50(2) from which I quote sections:
‘
(1) The
particulars of the following persons must be included in the
Register:
(a) A person who in terms of this
Act or any other law –
(i) has been convicted of a sexual
offence against a child or a
person who is mentally disabled’
[38 Section 50(2)(a) provides as
follows:
‘
A court
that has in terms of this Act or any other law –
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 make an order that the
particulars of the person be included in the Register.
’
[39] The provisions of ss 50(1) and
50(2) will have far reaching implications for a person convicted of a
sexual offence against
a child or a mentally disabled person as well
as a person against whom an allegation of a sexual offence had been
made and who
has been dealt with in terms of the provisions of ss
77(6) and 78(6) of the CPA. The net is cast very wide so as to
include persons
who committed such offences before the commencement
of this Act or at least the Chapter dealing with the National
Register for
Sexual Offences.
Circumstances under which a
person’s particulars may be removed from the Register
[40] Section 51 deals with the removal
of the particulars of a person from the Register. A person’s
particulars may only be
removed from the Register in the following
circumstances:
A person who has been sentenced for a
conviction of a sexual offence against a child or a person who is
mentally disabled to:
a term of imprisonment, periodical
imprisonment, correctional supervision, or to imprisonment in terms
of s 76(1)(i) of the CPA,
without the option of a fine for a period
of at least six months but not exceeding eighteen months whether the
sentence was suspended
or not,
may apply to be removed from the
Register after a period of ten years has lapsed after that person
had been released from prison
or the period of suspension has
lapsed.
A person receiving the same type of
sentences set out in (i) but where the period of such a sentence is
six months or less, may
apply to have his/her particulars removed
from the Register after a period of
seven (7) years
has
lapsed after that person has been released from prison or the period
of suspension has lapsed.
A person who is alleged to have
committed a sexual offence against a child or a mentally disabled
person in respect of whom a
court, whether before or after the
commencement of Chapter 6, has made a finding and given a direction
in terms of ss 77(6) and
78(6) of the CPA, may apply to have his/her
particulars removed from the Register after a period of
five (5)
years
has lapsed after such person has recovered from the mental
illness or mental defect in question and is discharged in terms of
the Mental Health Care Act, Act 17 of 2002 from any restrictions
imposed on him or her.
[41] In terms of s 51(2) the
particulars of a person:
(i) convicted of a sexual offence
against a child or a mentally disabled person who has received the
types of sentences mentioned
earlier under paragraph 37(i), without
the option of a fine for a period exceeding eighteen (18) months,
whether such sentence
is suspended or not; or
(ii) Who has two or more convictions
of a sexual offence against a child or mentally disabled person,
may
not be removed from the Register
.
[42] In terms of the provisions of s
52, the information contained in the Register is confidential. It may
not be disclosed by the
Registrar or any other person who assists the
Registrar, except for the purposes of giving effect to the provisions
of Chapter
6 and when required to do so by any competent court.
[43] Persons who are entitled to apply
for information in terms of s 44 may not disclose or publish such
information. If such a
person wilfully discloses such information, he
or she is guilty of an offence.
[44] A ‘child’ in terms of
the Sexual Offences Act means a person under the age of 18 years; or,
with reference to ss
15 and 16, a person 12 years or older but under
the age of 16 years.
Relevant provisions of the CJA
[45] Of particular importance in the
light of the circumstances of this case are some of the provisions of
the CJA. The accused
in this matter was 14 years of age at the time
of the commission of the offences of which he was convicted. Section
4 of the CJA
is therefore applicable.
[46] Section 4(1) of the CJA reads as
follows:
‘
Application
of Act
(1) Subject
to
subsection
(2)
,
this Act applies to any person in the Republic who is alleged to have
committed an offence and—
(a) …
(b) was 10 years or
older but under the age of 18 years when he or she was—
(i) …
(ii) …
arrested
in terms of
section
20
,
for that offence.’
[47] The object of the CJA are to be
found in s 2 of the Act, and are to:
‘
(a)
protect the rights of children as provided for in
the
Constitution
;
(b) promote the spirit of ubuntu in
the child justice system through—
fostering children’s sense
of dignity and worth;
(ii) reinforcing children’s
respect for human rights and the
fundamental freedoms of others by
holding children accountable for their actions and safe-guarding the
interests of victims and
the community;
(iii) supporting reconciliation by
means of a restorative justice response; and
(iv) involving parents, families,
victims and, where appropriate, other members of the community
affected by the crime in procedures
in terms of this Act in order to
encourage the reintegration of children;
provide for the special treatment
of children in a child justice system designed to break the cycle of
crime, which will contribute
to safer communities, and encourage
these children to become law-abiding and productive adults;
prevent
children from being exposed to the adverse effects of the formal
criminal justice system by using, where appropriate,
processes,
procedures, mechanisms, services or options more suitable to the
needs of children and in accordance with
the
Constitution
, including the use of diversion; and
promote co-operation between
government departments, and between government departments and the
non-governmental sector and civil
society, to ensure an integrated
and holistic approach in the implementation of this Act.’
[48] Some of the relevant Guiding
Principles are set out in s 3. These are:
‘
3. Guiding
principles.
—In
the application of this Act, the following guiding principles must be
taken into account:
(a) 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.
(b) A child must not
be treated more severely than an adult would have been treated in the
same circumstances.’
Relevant provisions of the
Constitution
[49] The provisions of s 28 of the
Constitution are also relevant to this case. It reads as follows:
‘
28.
Children.-(1) Every child has the right-
(c) …
(d) to be protected from
maltreatment, neglect, abuse or degradation;
(e) …
(2) A child’s best interests
are of paramount importance in every matter concerning the child.
(3) In this section “child”
means a person under the age of 18 years’.
[50] The applicable provisions of the
Constitution on which the Register may have an impact are the right
to dignity in terms of
s 10 of the Constitution; the right not to be
treated or punished in a cruel, inhuman or degrading way in terms of
s 12(1)(e) of
the Constitution and the right to freedom of trade,
occupation and profession in terms of s 22 of the Constitution.
[51] Against this background, I will
now deal with the arguments presented by the respective parties.
The Arguments
[52]
Mr Klopper
submitted that
it is trite and an acknowledged fact, that children are not
physically or mentally on par with adults and should
therefore
receive guidance and nurturing. In acknowledgement of these
principles South Africa became a signatory to the United
Nations
Convention on the rights of child (‘UNCRC’) in 1995 and
accordingly, in line with international standards,
including the
UNCRC and our Constitution, South Africa is obliged to make special
provision for the rights of children. Article
40(3) of the UNCRC
obliges South Africa to ‘
establish laws, procedures,
authorities and institutions specifically applicable to children in
conflict with the law
’. To this end, in respect of child
offenders, the CJA promotes a restorative justice response,
emphasising reconciliation.
This would include special treatment of
child offenders in order to rehabilitate and integrate such children
into society.
[53] Mr Klopper submitted, correctly
in my view, that the Regional Magistrate had no discretion to decline
to make an order in terms
of s 50(2,) that the name of the accused
must be entered in the Register, as the Sexual Offences Act does not
distinguish between
a child sexual offender and an adult sexual
offender.
[54] He conceded that the CJA makes no
distinction regarding the application of s 50(2) of the Sexual
Offences Act, between child
offenders and adult offenders but he
argues that this does not make the provisions of s 50(2) of the
Sexual Offences Act constitutionally
acceptable, compelling a Court
to enter the details of child offenders, who have committed sexual
crimes against children, in the
Register.
[55] Mr Klopper argued that in
relation to all sexual offenders, the peremptory inclusion of their
particulars in the Register makes
serious inroads into the
constitutional rights of such offenders. These rights include the
right to dignity; the right to privacy;
the right to fair labour
practices and freedom of trade, occupation and profession.
[56] Such peremptory provisions also,
generally, disregard the rights of the child and make inroads into
the specific rights set
out in s 28 of the Constitution in respect of
children. Amongst these are the right of the child to be protected
against degradation;
and the child’s right not to have its
well-being, moral or social development placed at a risk.
[57] This special dispensation for
child offenders is in line with the provisions in the Constitution
and also the laws of criminal
procedure, that place child offenders
in a different category from adult offenders, thereby recognising
their unique and vulnerable
position in society. Mr Klopper further
argued that, whilst
these limitations may be justifiable
with regard to adult offenders in terms of the limitations clause, s
36 of the Constitution,
this could not be the case in respect of
child offenders if due and proper regard is to be had to the relevant
provisions of the
CJA and s 28 of the Constitution. In this
particular case he submitted on behalf of the accused that the
inclusion of the particulars
of child offenders could not pass
constitutional muster, and that the inclusion disregards the special
dispensation for child offenders
which is part of our law.
[58] Mr Klopper argued that the
relevant factors to be considered when considering whether such a
limitation is justifiable would
include the weighing up of the rights
of the offender against those of the victims. In a case such as this,
there is an added dimension
at play when the rights of the child
offender and child victim are at stake. He therefore argued that the
obligation of courts
in respect of child offenders in terms of s
50(2) is not a constitutionally acceptable limitation.
[59] The obligation of courts to
include the particulars of a child offender in the Register fails to
take into account the long
term effects such inclusion would have on
such offender and the law fails to take into consideration the
objects of the CJA as
set out in s 2 of the CJA and as referred to
earlier.
[60] The peremptory inclusion in terms
of s 50(2) of the Sexual Offences Act, of the particulars of the
child offender, in the absence
of a discretion given to a judicial
officer, flies in the face of the guiding principles as set out in s
3 of the CJA which stipulate
that the consequences arising from the
commission of an offence should be proportionate to the circumstances
of the child, the
nature of the offence and the interests of society.
[61] Mr Klopper further conceded that
the crimes that trigger the inclusion of the particulars of an
offender in the register are
very serious and that the State has a
duty to protect citizens from violence. This goal/duty however, in
respect of children, is
best achieved in terms of the CJA, through
the imposition of sentences that strive to achieve the goals of the
Act and not through
the imposition of a further burden on the child
offender that undermines the CJA’s goals and is punitive by its
nature.
[62]
Mr Klopper referred to the court’s finding in
S
v RB; S v DK and Another
2010 (1) SACR 447
, (NCK)
that the inclusion
of the particulars of a minor in the Register, if regard is to be had
to the purpose of the Register, constitutes
a justifiable limitation
of the child offender’s rights in terms of s 154(3)
1
of the CPA and the
right to privacy. Mr Klopper argued that the Court however did not
consider the other rights of an accused that
may be affected. The
court was not called upon to consider the constitutionality of the
Register in a broader context.
[63] He argued that the court in that
case did not consider the need for compliance with international
conventions and the objects
and goals of the CJA. He further argued
that the focus of the legislature was adults who may be employed or
have authority or supervision
over children or the mentally disabled.
The Register in respect of child offenders has limited application
and only becomes pertinent
when the child becomes an adult and
aspires to work in a field relating to children or wants to adopt a
child. The immediate effect
of the placement of a child offender on
the Register is that the child is stigmatised. It is for these
reasons that this Court
should consider the question afresh after
having considered all the relevant circumstances.
[64] He further argues that the
limitation of the child offender’s rights in these
circumstances is not reasonable and justifiable
in terms of the
Constitution. The nature of the rights is such that the inclusion of
child offenders in the Register does not afford
protection to child
victims when the offender is still a child and such offender is
unlikely to be placed in the situations stipulated
by the
legislature.
[65] The Register does not, as is the
case in other jurisdictions, serve as a monitoring device for police
or members of the public
in respect of child offenders and is not an
effective mechanism by which the State can protect persons from
violence. The objectives
of the Register will only come into effect
when the child offender becomes older and there is a potential for
him/her to come into
contact with children. However, the inclusion of
the child offender’s particulars in the Register has the
immediate effect
of encroaching on the child offender’s privacy
and dignity.
[66] It is further argued that such
objectives conflict with the duties imposed by, and the spirit of the
CJA, which envisions a
justice system that recognises that a child
offender, after paying a debt to society, must be given a full
opportunity to integrate
into the community as a worthy citizen.
[67] Further, in failing to grant a
presiding officer a discretion to consider relevant circumstances
before making an order, s
50(2) of the Sexual Offences Act does not
recognise the individualistic approach which the CJA seeks to
underline, namely, that
every individual is different, that crimes
differ and that not every sex offender should be treated in the same
way.
[68] Mr Klopper further argued that in
respect of child offenders there are other less restrictive ways to
achieve the goal of protection
of child victims, such as proper
sentencing and programmes aimed at rehabilitating and moulding young
offenders to respect the
rights and bodily integrity of others, which
is the ultimate goal of the CJA.
[69] It was also argued that after a
consideration of all relevant factors it would not be in the best
interests of child offenders
that they should be treated like adults
by being included in the Register.
[70]
Ms Skelton
who appeared as
amicus curiae
on behalf of the Centre for Child Law agreed
with the arguments raised by Mr Klopper, particularly that the
provisions of s 50(2)
of the Sexual Offences Act violate a number of
the rights of the accused and that it further undermines the
objectives of the Register.
[71] Ms Skelton, after having regard
to the discussion in
Director of Public Prosecutions Transvaal v
Minister of Justice and Constitutional Development and Other
2009 (4)
SA 222
(CC)
at paragraphs
82 – 84
, submitted that if
the provisions of s 50(2) of the Sexual Offences Act are incapable of
being interpreted in a manner that remedies
the purported
unconstitutionality, the Court must, after conducting a limitation
analysis, consider whether the provision is reasonable
and
justifiable.
[72] If the provision is not
reasonable and justifiable, the Court must make a declaration of
constitutional invalidity, as it is
empowered to do in terms of s 172
of the Constitution. Ms Skelton so argued, after having regard to the
decisions of
Investigating Directorate: Services Economic Offences
and Others Hyundai Motor Distributors (Pty) Ltd and Others in re:
Hyundai
Motor Distributors (Pty) Ltd and Others v Smit NO and Others
2000 (10) BCLR 1079
(“Hyundai”)
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008] ZACC 12
;
2009 (1) SA
337
(CC).
[73] The
amicus curiae
agreed
with the Minister of Justice and Constitutional Development, the
State, that in this case s 50(2) of the Sexual Offences
Act is not
capable of any constitutionally compliant meaning. She argued that
due to the fact that such a reading is not possible,
it amounts to a
prima facie
constitutional infringement of rights. For such
provision to pass constitutional scrutiny it must amount to a
reasonable and justifiable
limitation in terms of s 36 of the
Constitution. The onus of establishing that such limitation is
reasonable and justifiable rests
on the party seeking to defend the
constitutionality of the provisions.
[74] Ms Skelton submits that the
impugned provisions do not survive the limitation analysis because it
is not properly related to
the purpose it seeks to achieve and the
provision is overbroad. There are less restrictive means available to
achieve the stated
purpose.
[75] Ms Skelton argued that the
primary aim of the Register is to protect children and persons with
mental disabilities from predatory
adults by limiting such adults’
employment opportunities to job categories which do not involve
access to children (or mentally
disabled persons). She submitted that
the impugned provision is not properly connected to this purpose,
because the State has not
shown that there is evidence to suggest
that children who commit sexual offences against their peers become
adult sex offenders
who prey on children. Such a fact according to
the
amicus
is also not self-evident.
[76] In order to show that the
impugned provision is reasonable and justifiable the State has to
show that there is a high degree
of probability that children who
commit sexual offences against other children will go on to become
adult sex offenders who prey
on children. The Minister in fact
provided the Court with statistics indicating the involvement of
children as victims of sexual
offences but not as perpetrators.
[77] In order for the State to have
shown that the impugned provision is properly related to its purpose
it should have shown the
prevalence of children committing sexual
offences against other children and that there is a high probability
of such children
committing sexual offences against children, as
adults.
[78] This, the
amicus
argues,
the State failed to do. On this ground alone s 50(2) of the Sexual
Offences Act should fail the s 36 limitation analysis
and should be
struck down.
[79] Ms Skelton further submits that
the impugned provision is overbroad and there are plainly less
restrictive means for achieving
the purpose of the provision.
The over breadth of this provision
rests in part on the comprehensive definition of sexual assault. A
sexual offence for the purposes
of s 50(2) includes every offence
from rape to kissing. This scheme of the Register has the effect that
all children who are convicted
of any sexual offence against their
peers will end up on the Register for one of the three statutory time
periods.
[80] The
amicus
curiae
accordingly argued that at first glance it may appear that the
Register is graded so that less serious offences attract a shorter
period of time on the Register. This is deceptive as more than one
count of any sexual offence can land a child on the Register
for
life. She used as an example the case of a 16 year old boy convicted
of more than one count of statutory rape of his 15 year
old
girlfriend, whose particulars would be entered in the Register for
the rest of his life.
[81] The
amicus
disagrees with
the State that, because of the fact that the Court
a quo
took
all counts together for sentencing purposes, the risk of the
particulars remaining on the Register for life, is obviated.
This,
because on a plain reading of the statute, it is provided that a
conviction on more than one sexual offence (regardless of
its
seriousness) renders an offender’s particulars to be entered in
the Register for the rest of his or her life. On this
further basis
the impugned provision fails the s 36 limitations analysis and falls
to be struck down. In the light of the above,
the
amicus
argues that should the court find the impugned provision
unconstitutional for the reason cited above, the appropriate remedial
order is the declaration that s 50(2)(a)(i) of the Sexual Offences
Act is unconstitutional insofar as it allows for persons who
were
under the age of 18 years at the time of the commission of the
offence, to be placed on the Register.
[82] Ms Skelton proposes that the word
‘adult’ be read in immediately before the word ‘
person
’,
the first time it appears in s 50(2)(a)(i) so that the section reads
as follows:
‘
A court
that has in terms of this Act or any other law –
(i) convicted
an adult
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 make an order that the
particulars of the person be included in the Register.’
[83]
Mr Tsegari
who appeared on
behalf of the Minister argued that the provisions of the impugned
section that creates the Register, are intended
to protect children
(and persons who are mentally disabled) from sexual predators. The
accused in this matter readily admitted
that he is a sexual predator
of children, in stating in his plea that he lusts for sex with
children.
[88] It was argued that to the extent
that the inclusion of the particulars of the accused in the National
Register infringes upon
his (potential) right to choose and practise
his trade, occupation or profession (in the event of him choosing to
work with children)
pursuant to s 22 of the Constitution, such
limitation is perfectly justifiable so as to protect children from
potential sexual
abuse or even rape by him.
[85] The Minister further argues that
the inclusion of the accused’s particulars in the Register
cannot reasonably be said
to be an infringement of his inherent right
to dignity because the contents of the Register are not for public
consumption. Such
particulars are only available on application in
the prescribed manner and only to the categories of persons listed in
s 44 of
the Sexual Offences Act, for the purpose of complying with
the obligations imposed on them by that Act. A person may have an
opportunity
to apply for his/her particulars to be removed from the
Register.
[86] Mr Tsegari further argued that
although s 51(2)(b) of the Sexual Offences Act rules out any
possibility of the removal from
the Register of the particulars of a
person who has two or more convictions of sexual offences relating to
a child, the Magistrate
in this case expressly indicated that all
three offences are taken together for the purposes of sentence. He
argued that the accused
was treated fairly and equitably by the
Magistrate and the Department of Justice and Constitutional
Development. He was apprised
of all his rights during the trial.
[87] The inclusion of his particulars
in the Register does not therefore fall foul of the reconciliatory
approach demanded by the
CJA and it also does not offend any of the
objectives or provisions of the Children’s Act or s 2 of the
CJA.
[88] Mr Tsegari, with reference to the
Hyundai
judgment, argues that the court in interpreting the
legislation is under a duty to take account of the objectives and
purpose of
the Act and to read the provisions of the legislation, so
far as possible, in conformity with the Constitution. The purpose and
object of the Sexual Offences Act is to combat and ultimately
eradicate the relatively high incidence of sexual offences in the
Republic. We were referred to statistics of the South African Police
Services. For the year 2010/2011, more than 50% of the 56 272
sexual offences cases reported, involved children. For the financial
year 2011/12, sexual offences cases reported involving children
constituted 40,1%. It was therefore argued that the suggestion that
the peremptory provisions of s 50(2) of the Act should not
apply to
children convicted of rape or other sexual offences, would defeat the
very object of the Sexual Offences Act.
[89] It was argued that the courts
should be careful in following the principle that judicial officers
must prefer interpretation
of legislation that falls within
constitutional bounds over those that do not. For this proposition
the
Hyundai
case was quoted at
para 24
. Mr Tsegari
argued that this is not a case where the legislative provision in
issue is unclear and imprecise to the extent that
it does not lend
itself to reasonable understanding by citizens and officials and
where it is necessary to apply this principle
in order to save the
impugned provisions from unconstitutionality.
[90] Accordingly it was argued that
the provisions of s 50(2) of the Sexual Offences Act clearly confer
upon the court the power
to direct that the particulars of a sex
offender who has been convicted of rape (including a child sex
offender) be included in
the Register for the purposes as set out in
Chapter 6 and with the overall object of eradicating the high
incidence of sexual offences
in South Africa. There is no ambiguity
or lack of clarity in the legislature’s intention.
[91] It was the further contention of
Mr Tsegari that even if an interpretation of the impugned provision
was to be countenanced
that exempts child sex offenders from the
provisions of s 50(2) of the Sexual Offences Act; such a construction
is not the only
possible construction of the section. It was
submitted that if proper regard is to be had to the Sexual Offences
Act, and the general
principles of the Children’s Act and the
CJA, such a construction would be unreasonable and strained. The
State, in terms
of the Constitution, and in terms of International
Law, is obliged to protect the public in general, and women and
children in
particular, against the invasion of their fundamental
rights by perpetrators of sexual offences. Counsel drew the court’s
attention to the views expressed by the Constitutional Court in the
decisions of
F v Minister of Safety and Security and Other
2012
(1) SA 536
(CC)
at
para 37
and Carmichele v Minister of
Safety and Security and Another (ALS Intervening)
[2001] ZACC 22
;
2001 (4) SA
938
(CC)
at
paragraph 62
, regarding the State’s duty
to protect the public in general and children in particular against
perpetrators of sexual offences.
Counsel argued that the remarks of
the Constitutional Court equally apply to children who are sexual
victims of other children.
[92] On behalf of the Minister this
court was requested to confirm the Magistrate’s order including
the order that the particulars
of the applicant be included in the
National Register for sex offenders.
[93]
Ms BE Currie-Gamwo on behalf of the DPP was of the view that
the value of a register containing the names of all sex offenders
cannot
be minimised and has been internationally accepted and the
court convicting the accused was competent to order that his name be
entered into the Register since the wording of the relevant section
is peremptory and a court does not have discretion to deviate
from
the provisions of the section. She also submitted that even if the
court did have discretion, an order resulting in the name
of a child
offender being entered into the Register would not be
unconstitutional or offend the spirit and tenure of the CJA.
Analysis
[94] In this particular matter under
review the court is dealing with a child offender. As such the court
has to deal with him in
terms of the provisions of the CJA. In
dealing with any child accused regard should be had to the objects of
the CJA as set out
in s 2 of the CJA and the guiding principles as
set out in s 3 of the CJA, which were referred to and discussed
earlier.
[95] In my view both the CJA as well
as the provisions of the Sexual Offences Act, relating to children,
seek to protect and give
meaning to the rights of children as set out
in the Constitution. They have as a common purpose the protection of
the rights of
children.
[96] Furthermore, the purpose of the
CJA, in accordance with the values underpinning the Constitution, is
to grant special protection
to children who are in conflict with the
law and are accused of committing offences. The focus and spotlight
is entirely on the
child offender. The Sexual Offences Act seeks to
protect children from sexual abuse and exploitation. There is
therefore a shift
in emphasis and focus in dealing with children from
the offender to the victim. Both seek to promote a constitutionally
permissible
purpose.
[97] The Sexual Offences Act has as
one of its measures to protect children (and mentally disabled
persons) from sexual exploitation
and abuse, the establishment of a
National Register.
[98] In my view, whilst the inclusion
of the particulars of a child offender in the Register in certain
circumstances may not be
consistent with the purpose and objects of
the CJA, it may be justified in other well deserved cases where the
interest of justice
so demands.
[99] Mr Klopper argued that the
importance of the Register in respect of child offenders has limited
application and only becomes
pertinent when the child becomes an
adult and has to work in a field requiring contact with children or
wants to adopt a child.
However, in my view there may well be
circumstances in which there is a need to protect other children
against such a child offender
and which demand the inclusion of the
child’s particulars in the Register, whilst the offender is
still a child.
[100] I am in agreement with the
arguments and submissions of Mr Klopper and Ms Skelton that the
provisions of s 50(2) of the Sexual
Offences Act in requiring the
particulars of a child sexual offender who has committed a sexual
offence against another child,
to be included in the Register, may
violate such child offender’s rights.
[101] The question is then, whether
the inclusion of the name of such an offender in the Register in
terms of the provisions of
s 50(2) of the Sexual Offences Act,
violates the rights of such an offender?
[102] In my view, because of the
consequences and impact of the inclusion of such an offender’s
name in the Register, the
rights of such offender, as referred to
earlier, whether a child or an adult, would indeed be violated.
[103] The question to be considered is
how does the court then deal with such a situation? As a starting
point, the preferred manner
in dealing with such a purported
violation of rights is for the Court to interpret the impugned
legislation in such a manner that
gives effect to the fundamental
values of the Constitution (s 39(2) of the Constitution). In
Hyundai
it was held as follows:
‘
[23] In
De Lange v Smuts NO and Others, Ackermann J stated that the
principle of reading in conformity does “no more
than give
expression to a sound principle of constitutional interpretation
recognised by other open and democratic societies based
on human
dignity, equality and freedom such as, for example, the United States
of America, Canada and Germany, whose constitutions,
like our 1996
Constitution, contain no express provision to such effect. In my
view, the same interpretative approach should be
adopted under the
1996 Constitution.”
Accordingly, judicial officers must
prefer interpretations of legislation that fall within constitutional
bounds over those that
do not, provided that such an interpretation
can be reasonably ascribed to the section.
[24]
Limits must, however, be placed on the application of this
principle
.
On the one hand,
it is the duty of a judicial officer to interpret legislation in
conformity with the Constitution so far as this
is reasonably
possible. On the other hand, the Legislature is under a duty to pass
legislation that is reasonably clear and precise,
enabling citizens
and officials to understand what is expected of them
.
A balance will
often have to be struck as to how this tension is to be resolved
when considering the constitutionality of legislation.
There
will be occasions when a judicial officer will find that the
legislation, though open to a meaning which would be
unconstitutional,
is reasonably capable of being read 'in conformity
with the Constitution'. Such an interpretation should not, however,
be unduly
strained
.’
[104] In this particular case, it is
not possible, in my view, to interpret s 50(2) in a constitutionally
compliant manner as enjoined
by s 39(2) of the Constitution.
[105] The rights of a convicted sexual
offender who has committed sexual offences against children, are
limited by the obligations
imposed on courts to enter such offender’s
particulars in the Register. Such rights, in terms of s 36 of the
Constitution,
may only be limited by a law of general application,
and must be reasonable and justifiable in an open and democratic
society based
on human dignity, equality and freedom.
[106] In conducting the limitation
analysis the Court should consider all relevant factors, including,
the nature of the right;
the importance of the limitation; the nature
and the extent of the limitation; the relation between the limitation
and its purpose;
and a less restrictive means to achieve this
purpose.
[107] In the instant matter, the
purpose of the Register is to maintain a record of persons who have
been convicted of a sexual
offence against a child or person who is
mentally disabled. The ultimate goal is to protect children (and
mentally disabled persons)
from sexual offenders and to eliminate the
possibility that such offenders gain access to them.
[108] Our courts are acutely aware of
the extent of sexual violence against women and children in this
country. This fact in my
view is self-evident. In
F v Minister of
Safety and Security and Others
2012 (1) SA 536
(CC)
at
para 37
the Constitutional Court made the following remark in this regard:
‘
The abuse
of women and girl-children is rife in this country. The police
service is constitutionally required to combat these and
other
crimes
’.
[109] In
DPP, WC V Prins
2012 (2)
SACR 183
at
page 186 para [1] Wallis JA
in a case dealing
with the interpretation of the penalty provisions of offences set out
in Chapters 2, 3 and 4 of the Sexual Offences
Act, made the following
comment:
‘
[1]
No
judicial officer sitting in South Africa today is unaware of the
extent of sexual violence in this country and the way in which
it
deprives so many women and children of their right to dignity and
bodily integrity and, in the case of children, the right to
be
children; to grow up in innocence and, as they grow older, to awaken
to the maturity and joy of full humanity. The rights to
dignity and
bodily integrity are fundamental to our humanity and should be
respected for that reason alone. It is a sad reflection
on our world,
and societies such as our own, that women and children have been
abused and that such abuse continues, so that their
rights require
legal protection by way of international conventions
2
and domestic laws, as South
Africa has done in various provisions of our Constitution
3
and in the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the
Act). It was rightly stressed in argument,
in the light of evidence
tendered and admitted in this appeal, that the Act is a vitally
important tool in the on-going fight against
this scourge in our
society.’
[110] This important constitutional
purpose, namely, the protection of the dignity, freedom and physical
integrity of women and
children which the Sexual Offences Act seeks
to enforce, was also spelled out in the decision of
S and Another
v Acting
Regional Magistrate, Boksburg and Another 2011(2)
SACR 274 (CC)
at
para 23
, to which
Wallis JA
refers
to in the
Prins
matter.
Mthiyane AJ
dealt in that
matter with the provisions of s 69 of the Sexual Offences Act where
he said:
‘
Our
Constitution sets its face firmly against all violence and in
particular sexual violence against vulnerable children, women
and
men. Given this and the Act’s emphasis on dignity, protection
against violence against the person, and in particular
the protection
of women and children, it is inconceivable that the provision could
exonerate and immunize from prosecution acts
that violated these
interests.’
[111] If regard is therefore to be had
to the legitimate and constitutional purpose the Sexual Offences Act
seeks to protect, I
am of the view that the inclusion of the
particulars of an offender who commits a sexual offence against a
child, constitutes a
limitation that is reasonable and justifiable in
an open and democratic society such as ours. It seeks to protect the
human dignity
and the right of victims of sexual abuse, in this case,
including children (and mentally disabled persons).
[112] The right of a sexual offender
to gain access to a child, during the course of his or her
employment, or to conduct a business
wherein he or she would gain
access to a child, or to foster or be a guardian of a child, cannot
be regarded as more important
than those of the child (or mentally
disabled person) to be protected from such offenders.
[113] For these reasons I am satisfied
that the inclusion of an offender’s particulars in the Register
is a reasonable and
justifiable limitation of such an offender’s
rights.
The applicability of Section 50(2)
of the Sexual Offences Act to Child Offenders
[114] This brings me to the question
whether the provisions of s 50(2) undermine the principles of the
CJA, in compelling a court
to insert the details of a child offender
who has committed a sexual offence against another child, in the
Register.
[115] A child offender cannot be less
of a sex offender merely because such an offender is a child. Such an
offender will remain
a sex offender, irrespective of whether such a
person’s particulars will be included in the Register or not.
The mere fact
that an offender is a child sex offender, in my view,
is not sufficient justification
per sé
for not having
such a person’s particulars entered in the Register. Under
certain circumstances, it may well be that entering
such details is a
reasonable and justifiable limitation of the rights of such an
offender, and this would be especially so where
such a child sex
offender might reasonably pose a threat or harm to children or
mentally disabled persons. However, in my view,
such decision to do
so in the case of children, has to be constitutionally compliant and
has to be a measure of last resort given
the circumstances of a
particular case.
[116] In terms of s 28(2) of the
Constitution the best interests of the child are of paramount
importance in every matter concerning
the child. In the instant case
the court has to consider the best interests of the child offender
and weigh it up against the best
interests of a child who is a victim
of sexual abuse and exploitation.
[117] Our courts have held that this
principle under certain circumstances is capable of limitation. The
following was held in
S v M (Centre for Child Law as Amicus
Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
at
[26]
:
‘
This
court, far from holding that s 28 acts as an overbearing
and unrealistic trump of other rights, has declared that the
best-interests injunction is capable of limitation. In Fitzpatrick
this court found that no persuasive justifications under s 36
of the
Constitution were put forward to support the ban on foreign persons
adopting South African-born children, which was contrary
to the best
interests of the child. In De Reuck, in the context of deciding
whether the definition and criminalisation of
child pornography
was constitutional, this court determined that s 28(2) cannot be said
to assume dominance over other constitutional
rights. It emphasised
that “ . . constitutional rights are mutually interrelated and
interdependent and form a single constitutional
value system. This
court has held that s 28(2), like the other rights enshrined in the
Bill of Rights, is subject to limitations
that are reasonable
and justifiable in compliance with s 36.”
Similarly, in Sonderup this court
stated that the international obligation to return a child to the
country of his or her residence
for determination of custody
would constitute a justifiable limitation, under s 36, of s 28
rights. This limitation on s 28(2)
was counterbalanced by the duty of
courts to weigh the consequences of the court's decision on children.
Accordingly, the fact
that the best interests of the child are
paramount does not mean that they are absolute. Like all rights in
the Bill of Rights
their operation has to take account of their
relationship to other rights, which might require that their
ambit be limited.’
[118] The provisions of the Sexual
Offences Act are applicable to all child offenders including the
provisions relating to the offender’s
particulars to be
included in the Register.
[119] A court dealing with a child
offender who has committed a sexual offence, must have regard to the
aims and objects of the
CJA. Therefore, a Court in concluding that a
child is a sexual offender in terms of the Sexual Offences Act, has
to deal with such
a child in terms of the provisions of the CJA. In
giving effect to s 28 of the Constitution, the CJA seeks to protect
the rights
of the child offender. It further seeks to give
consideration to the best interests of the child.
[120] Where a child, however, has
committed a serious sexual offence, and there is a need to have the
child’s particulars
entered in the Register, and where there is
a need for a Court to counterbalance the rights of the child offender
against the particular
harm and danger such a child offender would
pose to victims of sexual abuse and exploitation, the best interests
and paramountcy
principle of the child offender may be required to be
limited.
The overbroadness of section 50(2)
[121] One of the difficulties I have
is that this provision provides that
all
sexual offenders who
commit sexual offences against children or mentally disabled persons,
must be included in the Register. In
my view, there may be particular
circumstances in a case involving a child sex offender and his or her
child victim, that do not
call for the inclusion of the former’s
details in the Register, owing to the fact that the ultimate goal of
protecting children
against sexual abuse and exploitation is not
served by such an approach. Considerations that may justify a
decision to decline
to include the details in the Register, include
the seriousness of the offence committed, the presence of the consent
of both parties,
and the respective ages of the parties involved.
[122] However, the lack of discretion
granted to a presiding officer, together with the broad range of
offences that fall under
the term ‘sexual offence’, some
of which may not be as serious as others, means that courts cannot
take the particular
circumstances into account, whether or not the
child offender truly poses a threat to children, and whether or not
the circumstances
of a case justify such an approach. The broad range
of offences comprising sexual offences is clear from the discussion
below.
[123] Section 12 creates a sexual
offence between two individuals where there is an incestuous
relationship between them as set
out in s 12(2). In such a case if
the DPP decides to institute a prosecution against a child offender
and the victim is also a
child, such a child offender, if convicted,
will have his or her particulars included in the Register.
[124] In terms of s 16 a person who
commits an act of sexual violation with a child despite the latter’s
consent to the commission
of such an act, is guilty of a sexual
offence. In terms of s 16(2)(a) the DPP must authorise in writing the
prosecution of such
an offence where both the ‘victim’
and the offender were children at the time of the commission of the
offence. The
definition of sexual violation for the purposes of this
section is very wide. It also includes direct or indirect contact
between
the 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
animal or object, etc. It can also be direct or indirect contact
between the mouth of one person and the genital organs or anus
of
another person or breasts of a female, or it can be direct or
indirect contact between the mouth of one person and another person
(kissing).
[125] It could never have been the
intention of the legislature to have the particulars of these child
sex offenders entered in
the Register, where they pose no threat to
other children.
Section 50(2) and the Offender’s
Right to be heard
[126] The further difficulty I have
with this provision is that it does not allow a sexual offender an
opportunity to make representations
to persuade the court not to make
such an order. This violates an offender’s right to a fair
hearing in terms of Section
34 of the Constitution. It offends
against the principle of
audi alteram
partem
.
[127] In
De Beer NO v North Central
Local Council and South Central Local Council
and Others
2001
(11) BCLR 1109
(CC)
[2002 (1) SA 425]
this principle of our law
was reaffirmed as follows by
Yacoob J
at
para [11] at p
1118:
‘
This
section 34 fair-hearing right affirms the rule of law which is a
founding value of our Constitution. The right to a fair hearing
before a court lies at the heart of the rule of law. A fair hearing
before a court as a prerequisite to an order being made against
anyone is fundamental to a just and credible legal order. Courts in
our country are obliged to ensure that the proceedings before
them
are always fair. Since procedures that would render the hearing
unfair are inconsistent with the Constitution courts must
interpret
legislation and rules of the court, where it is reasonably possible
to do so, in a way that would render the proceedings
fair. It is a
crucial aspect of the rule of law that court orders should not be
made without affording the other side a reasonable
opportunity to
state their case. That reasonable opportunity can usually only be
given by ensuring that reasonable steps are taken
to bring the
hearing to the attention of the person affected. Rules of courts make
provision for this. They are not, however, an
exclusive standard of
reasonableness. There is no reason why legislation should not provide
for other reasonable ways of giving
notice to an affected party. If
it does, it meets the notice requirements of section 34.’
[128] In
National Director of
Public Prosecutions and Another v Mohamed NO and Another
[2003] ZACC 4
;
2003 (5)
BCLR 476
(CC) at para
[37]
– [38],
it was put as follows:
‘
[37]
It
is well established that, as a matter of statutory construction, the
audi
rule
should be enforced unless it is clear that the legislature has
expressly or by necessary implication enacted that it should
not
apply or that there are exceptional circumstances which would justify
a court not giving effect to it.
[38] For stronger
reasons this approach should apply when construing a statutory
provision in order to determine its constitutionality.
Accordingly,
in construing section 38, where no express reference is made to the
audi
principle, or its exclusion, the question to be asked is
not whether the
audi
principle can be implied in the section,
but rather whether it has been excluded from the section by clear
necessary implication,
or whether there are exceptional circumstances
which would justify a court not giving effect to it.
’
[129] The question now to be
considered is whether s 50(2) can be interpreted to give effect to
the
audi
rule. This would be the interpretation a court is
obliged to follow in terms of s 39(2) of the Constitution, as laid
down in
Hyundai
. However, it is impossible to read such an
interpretation into s 50(2), because a court is, upon conviction,
obliged to make such
an order, although it must explain the contents
and implications of such an order to the convicted person.
[130] Further, in my opinion, it
cannot be said that the failure to afford an offender the right to be
heard before an order is
made in terms of s 50(2), is a reasonable
and justifiable limitation of the rights of a sexual offender in
order to enforce and
protect the dignity, freedom and physical
integrity of children (and mentally disabled persons) against sexual
abuse and exploitation.
[131] In my view, there is no
legitimate constitutional purpose in disallowing a court the
discretion to decline to make such an
order, provided that such
discretion is exercised in a judicious manner.
[132] In
DPP v Minister of Justice
and Constitutional Development
2009 (7) BCLR 637
(CC) (supra)
which dealt with the discretion of a judicial officer to appoint an
intermediary in terms of s 170 of the CPA,
Ncgobo J
(as he
then was) stated as follows at para
[120] – [122]:
‘
[120]
The
importance of judicial discretion cannot be gainsaid. Discretion
permits judicial officers to take into account the need for
tailoring
their decisions to the unique facts and circumstances of particular
cases. There are many circumstances where the mechanical
application
of a rule may result in an injustice. What is required is
individualised justice, that is, justice which is appropriately
tailored to the needs of the individual case. It is only through
discretion that the goal of individualised justice can be achieved.
Individualised justice is essential to the proper administration of
justice. As Dean Pound pointed out some fifty years ago:
“
in
no legal system, however minute and detailed its body of rules, is
justice administered wholly by rule and without any recourse
to the
will of the judge and his personal sense of what should be done to
achieve a just result in the case before him.”
[121] However,
discretion must be confined, structured and checked. This is the
function of the Constitution and the law.
[122] In Dawood,
albeit in a different context, we held that discretion “permits
abstract and general rules to be applied
to specific and particular
circumstances in a fair manner.” Judicial officers are provided
with discretion to ensure that
the principles and values with which
they work can be applied to the particular cases before them in order
to achieve substantive
justice. Discretion is a flexible tool which
enables judicial officers to decide each case on its own merits. In
the context of
the appointment of an intermediary, the conferral of
judicial discretion is the recognition of the existence of a wide
range of
factors that may or may not justify the appointment of an
intermediary in a particular case.’
[133] Section 50(2) offends against a
person’s right to a fair hearing where it does not allow the
court a discretion to consider
whether or not an order should be
made. These concerns, as raised by the respective parties, as well as
the Minister, can be adequately
addressed if the offender as well as
the prosecution is given an opportunity to address the court as to
whether it would be in
the interests of justice that an order be made
directing that the particulars of the accused person be entered in
the Register.
[134] Both Mr Klopper and
the
amicus curiae,
Ms Skelton, in argument, conceded, and in my view
correctly so, that s 50(2) should be declared unconstitutional and
invalid only
to the extent that a presiding officer is not allowed a
discretion whether or not to make such an order and that an offender
is
not given an opportunity to make representations before such an
order is made. This limitation of the right to a fair hearing cannot
be justified. To this extent only, I hold that the provisions of s
50(2) are invalid and inconsistent with the Constitution.
[135] This court
mero moto
raised the constitutional issue with the relevant and interested
parties or any party who may be affected by the challenge or who
may
have a legitimate interest in the case, obtained their detailed
submissions and heard their arguments, including the arguments
of a
duly appointed
amicus curiae,
challenging the
constitutionality of s 50(2) or opposing the challenge to the
section. Accordingly, in the interests of justice,
and in view of the
urgency of the matter, the court dispenses with compliance with the
provisions of rule 16A of the Rules of Court
and to the extent
required, condones the non-compliance with the provisions of this
rule.
Order:
[136] In respect of this present
matter under consideration I propose the following order:
That the convictions and sentences in
S v Johannes,
with High Court Ref no
121226,
the review
before court, are in accordance with justice;
[137] I propose the following order in
terms of s 172 of the Constitution:
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.
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 s 50(2) so that it
can be constitutionally compliant.
During the period of suspension or
until such sooner date as any amendments in para (2) above come into
force, s 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
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
…
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
.
4) This order is referred to the
Constitutional Court for confirmation of the order of constitutional
invalidity.
___________________________
HENNEY, J
Judge of the High Court
I agree.
___________________________
STEYN, J
Judge of the High Court
I agree, it is so
ordered.
___________________________
FOURIE, J
Judge of the High Court
For
the Applicant
: Adv
Kenneth John Klopper
Instructed
by
: Legal Aid South
Africa
For
the Respondent
:
Adv B E Currie-Gamwo
Instructed
by
: Director of Public
Prosecutions: Western Cape
For
the Minister of Justice and Constitutional Development
:
Adv C
Tsegarie
For
the Amicus Curiae
:
Adv A M
Skelton
Instructed
by
: The
Centre for Child Law
Date(s)
of Hearing
: 3 MAY 2013
Judgment
delivered on
:
21
AUGUST 2013
1
Section
154(3) prohibits the publication of any information that reveals the
identity of an accused under the age of eighteen
years or a witness
in criminal proceedings except with the Court’s authorisation.
2
The
principal ones to which we were referred by counsel for the first
amicus were the United Nations Convention on the Rights
of the Child
(Article 19) and the African Charter on the Rights and Welfare of
the Child (Article 16). Counsel for the second
amicus referred us
principally to articles 4 and 23 of the Protocol to the African
Charter on Human and Peoples’ Rights
on the Rights of Women in
Africa, Article 2 of the United Nations Convention on the
Elimination of All Forms of Discrimination
against Women and Article
4 of the Declaration on the Elimination of Violence against Women.
3
Particularly
ss 9, 10, 12(2), 28(1)(
d
) and 28(2) of the Constitution.