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05 May 2014 18:32
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
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
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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