Sex offender register conundrum to see ruling

If a teenager forces other minors to have sex the law requires his name to be placed on the Sex Offenders Register. This violates his own rights as a child. (Gallo)

If a teenager forces other minors to have sex the law requires his name to be placed on the Sex Offenders Register. This violates his own rights as a child. (Gallo)

The Constitutional Court will rule on Tuesday on the constitutional validity of legislation providing for child sex offenders to be listed in a register.

The case originated with the sentencing of a teenage offender. When the applicant was 14 years old, he pleaded guilty to raping three children and his name was entered into the national register for sexual offenders in terms of section 50(2) of the Sexual Offences Act.

The matter was subject to an automatic review under the Child Justice Act, and was heard by the high court in Cape Town. The high court found that the convictions and sentence handed down to the teenager were in accordance with justice. The court then, on its own initiative, inquired into the constitutionality of section 50(2) of the Act.

It found the provision to be invalid and inconsistent with the Constitution as it did not provide for a court to decide whether a child offender’s details should be entered into the register. It also did not afford the child offender with an opportunity to make representations. The order was not made retrospectively and its effect was suspended for 18 months to allow the legislature time to rectify it. The application was made to the Constitutional Court on February 6 this year.

The applicant argues that the effect of section 50(2) is too broad and that the limitations it puts on the rights of the child offender are substantially disproportionate to its purpose. Also, if a child offender were given an opportunity to make representations before being placed on the register this would give expression to the guiding principles of the Child Justice Act.

The minister of justice, a respondent in the matter, did not oppose the provision being declared constitutionally invalid, but raised concerns about the high court’s proposed remedy.

Childline South Africa, the Teddy Bear Clinic for Abused Children and the National Institute for Crime Prevention and the Reintegration of Offenders joined the matter as friends of the court. They argue that section 50(2) violates the child’s right to a fair hearing and infringes on the constitutional principle that a child’s best interests are of paramount importance in every matter concerning children. – Sapa



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