The Constitutional Court has declared section 50(2) of the Sexual Offences Act unconstitutional in a judgment handed down on Tuesday.
The section deals with someone convicted of a sexual offence against a child or a mentally disabled person. It prescribes that a court has to order the inclusion of the offender’s particulars on the national register for sex offenders.
The court found: “Having one’s particulars entered on the register entails certain limitations in employment, in licensing certain facilities and ventures, and in the care of children and persons with mental disabilities.”
The case originated with the sentencing of a teenage offender.
The applicant had been convicted of sexual offences committed against children and was also a child at the time of the offences. The trial court sentenced the applicant, and made an order that his particulars be entered on to the register.
On review, the Cape Town high court declared section 50(2) of the Sexual Offences Act constitutionally invalid because it unjustifiably infringed on the rights of offenders, whether children or adults.
The high court suspended the declaration of invalidity for 15 months and ordered that, in the interim, certain words be read into the provision. The matter came before the Constitutional Court for confirmation. None of the parties opposed the confirmation of the declaration of invalidity.
In a unanimous judgment, Judge Thembile Skweyiya held that section 50(2)(a) of the Act infringed on the right of child offenders to have their best interests considered of paramount importance in terms of section 28(2) of the Constitution.
“The register fulfils a vital function in protecting children and persons with mental disabilities from sexual abuse,” the court said.
“However, the limitation of the child offender’s right is unjustifiable because a court has no discretion whether to make the order and because there is no related opportunity for child offenders to make representations.”
The court limited its declaration of constitutional invalidity to child offenders. It held that the constitutionality of the provision in relation to adult offenders was not properly before the court.
“The court suspended the declaration of invalidity for 15 months to give the legislature an opportunity to correct the constitutional defect. The respondents were further directed to provide a report to the court setting out the details of child offenders currently listed on the register.”
Postive NGO response
Three NGOs involved in the case have responded positively to the ruling.
“Inclusion on the register [of sex offenders] creates barriers for the children to educational and employment opportunities that could reduce the likelihood of reoffending,” Childline SA, the Teddy Bear Clinic for Abused Children, and the National Institute for Crime Prevention and the Reintegration of Offenders said in a joint statement.
“It also results in shame and stigmatisation that could lead to mental and psychological harm.”
The three NGOs, represented by the Centre for Child Law, entered the matter as friends of the court and made submissions to the court that section 50(2)(a) was unconstitutional when applied to children. They believed that before a decision was made to place a child’s name on the register, an assessment needed to be carried out by a suitably qualified professional.
The assessment would determine the legal intervention needed, including placement of the child’s name on the register, and also treatment options. “This is important as children respond more to treatment than adult offenders as they are continually developing psychologically,” the organisations said. – Sapa