The North Gauteng High Court in Pretoria earlier this week declared unconstitutional certain sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.

The specific sections in the Act made it a criminal offence for children aged between 12 and 16 to engage in consensual sexual activities with each other. The Act also criminalised other instances of consensual sexual acts or conduct between children of that age, inter alia kissing and not only penetration. The effect of the sections was that both consensual parties could face criminal prosecution in terms of the Act. Furthermore, any person, be it parents, teachers or others, who were aware of any such consensual sexual activities between children had an obligation to report it to the police, or face possible criminal prosecution themselves in terms of the Act.

In April 2012, two organisations concerned with children’s rights - the Teddy Bear Clinic for Abused Children and the Centre for Child Law - approached the High Court and challenged the constitutionality of the relevant provisions. The application was opposed by the National Director of Public Prosecutions, as well as the Minister of Justice and Constitutional Development.

The main contention by the organisations was that the relevant provisions infringed upon children’s right to dignity and privacy. The right to dignity and privacy is important and well-entrenched in our Constitution and human dignity is one of the founding provisions of our Constitution. Everyone - including children and teenagers - has inherent dignity and the right to have their dignity respected and protected. In challenging the provisions of the Act, the Teddy Bear Clinic argued that the relevant provisions had the effect of traumatising children by exposing them to the criminal justice system - rather than protecting them.

According to reports, the Teddy Bear Clinic welcomed the court’s ruling in that "it promotes the best interests of children by protecting them from being violated by the criminal justice system, therefore advancing the rights of children."

According to Department of Justice and Constitutional Development spokesperson, Mthunzi Mhaga, the department noted the High Court’s ruling and is currently studying the judgment with a view to whether there are valid grounds upon which to appeal.

Judge Pierre Rabie stated in his judgment that "despite many reforms to make the child justice system more child-friendly...exposure to the criminal justice system is still a dramatic and harrowing experience" and that, undoubtedly, this would have negative consequences.

On the one hand, the provisions seemingly have a just aim: to protect children from various forms of sexual abuse by other children and adults, given the prevalence of sexual offences committed against women and children in South Africa. On the other hand - and on a practical note - these specific provisions may not have been drafted after properly considering factors such as the following:

• South Africa’s overburdened criminal justice system;
• overcrowding in prisons;
• the sphere of constitutional rights involved;
• the traumatic effect arrests will have on children if prosecuted in terms of the Act;
• being questioned about intimate personal details by personnel who might not have the proper training to do so; and
• further psychological (and possibly physical) trauma children will suffer from being detained at police stations.  

Furthermore, and apart from being exposed to the criminal justice system, how are children’s rights to choose or give consent to sexual activity between themselves being affected/restricted by this kind of legislation, and should children be consulted when legislation of this nature is proposed?

Should conduct such as this be criminalised and if so, why? Should legislation define and dictate the moral values and conduct pertaining to consensual sexual activities between children, especially if it is considered that in some instances, use of alcohol and tobacco product by children are regulated, as well as other matters of a highly personal consenual nature, such as getting an abortion. As the judgment reflects on the constitutionality of legislation, it must now be confirmed by the Constitutional Court. The latter Court will, without a doubt, have to consider the fine balance between what could be seen as the best interests of children - whether defined in terms of the values of society or health considerations - and those constitutional rights allowing children to make certain decisions based on mutual consent. Whether the Constitutional Court will agree with the High Court remains to be seen.

By Adv Jacques du Preez, Centre for Constitutional Rights