The Constitutional Court will hear an application on Thursday for confirmation of an order granted by the high court in the Western Cape, which declared part of the Sexual Offences Act unconstitutional.
The high court declared section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (Sexual Offences Act) unconstitutional.
The applicant, who admitted raping three minor children while he himself was still a minor, was sentenced in terms of the Child Justice Act and his name was entered into the National Register for Sexual Offenders in terms of section 50(2) of the Sexual Offences Act.
The high court held that the applicant's conviction and sentence were in accordance with justice. Of its own accord, it proceeded to inquire into the constitutionality of section 50(2) of the Sexual Offences Act.
The court found that section 50(2) is invalid and inconsistent with the Constitution to the extent that it does not allow a court to decide whether a child offender's details should be entered into the register, or provide the opportunity for a child offender to make representations.
The order was not made retrospective and its effect was suspended for 18 months to afford the legislature time to rectify the unconstitutionality of the provision.
The minister of justice and constitutional development, Jeff Radebe, who is the second respondent in the matter, does not oppose the confirmation of the order of constitutional invalidity, but argues that the remedy ordered by the high court is problematic.
The amici curiae (friends of the court) – Childline South Africa, the Teddy Bear Clinic for Abused Children and the National Institute for Crime Prevention and the Reintegration of Offenders – argue that in addition to violating the right to a fair hearing, the challenged provision infringes the constitutional principle that a child's best interests are of paramount importance in every matter concerning the child.
Last year, the Constitutional Court struck down two sections of the Sexual Offences and Related Matters Amendment Act that made it illegal for adolescents to engage in consensual sexual acts, including kissing and hugging.
The state argued it had a right to prevent teenagers from having sex by criminalising the act but child's rights groups argued that the law did more harm to children than good, and that there were other ways to encourage healthy sexual behaviours.
In a unanimous judgment, Judge Sisi Khampepe said that sections 15 and 16 of the Sexual Offences and Related Matters Amendment Act are unconstitutional as they infringe on the rights of adolescents to dignity and privacy. Non-consensual sexual acts with or between children of any age remains illegal and is prosecutable under the law.
The court found that the sections criminalised developmentally normal behaviour and could have a negative effect on the children the Act was meant to protect. – Sapa, additional reporting by Staff Reporter