Why the law was changed

ASHWIN TRIKAMJEE, president of the South African Hindu Maha Sabha, said: “(Teenage sex) is wrong as far as the morals of society are concerned. This breeds promiscuity and permissiveness.” MOULANA ABDULLAH KHAN of the Jamiatul Ulama said: “Kids at that age don’t understand the consequences of their actions. Society needs to be proactive and educate young people about not engaging in sexual activity before marriage.”

Khan said this would also fuel the high level of teenage pregnancy.

Khan said sex before marriage was not allowed in Islam. THE sweeping changes came about after two organisations at the forefront of championing children’s rights won their applicationin the Pretoria High Court, then the Constitutional Court.

The Teddy Bear Clinic for Abused Children and Resources Aimed at the Prevention of Child Abuse and Neglect (Rapcan) were supported in their quest to have the law amended by the Justice Alliance of South Africa, the Women’s Legal Centre Trust in Gauteng and the Tshwaranang Legal Advocacy Centre.

The last three organisations were joined in the proceedings against the Minister of Justice and Constitutional Development and the national director of public prosecutions as “friends of the court”.

The Constitutional Court said the Pretoria High Court was correct in ruling that certain provisions of the Criminal Law Amendment Act relating to the criminalisation of consensual sexual conduct of children of a certain age were constitutionally invalid.

The decision to order Parliament to amend the law was unanimous, said Judge Sisi Khampepe, who penned the judgment in the country’s highest court.

“Children are precious members of society and any law that affects them must have due regard to their vulnerability and need for guidance. We have a duty to ensure they receive the support and assistance necessary for their growth and development.

“This court has recognised that children merit special protection through legislation that guards and enforces their rights and liberties. We must be careful, however, to ensure that in attempting to guide and protect children, our interventions do not expose them to harsh circumstances, which can only have adverse effects on their development.”

According to the judgment, the case was not about whether children should or should not engage in sex.

“It is also not about whether Parliament may set a minimum age for consensual sexual conduct. Rather, we are concerned with a far narrower issue: whether it is constitutionally permissible for children to be subject to criminal sanctions in order to deter early sexual intimacy and combat the risks associated therewith.”

Judge Khampepe said it was argued by counsels representing the Teddy Bear Clinic for Abused Children and Rapcan that the provisions in the Sexual Offences Act had harmful effects on children – who the law was intended to safeguard.

“These effects arise largely from the exposure of minors to the harshness of the criminal justice system, and the chilling effect of such exposure on the development of a proper understanding of, and healthy attitudes to, sexual behaviour.

Infringement

“It was argued that the provisions of the act infringe a range of children’s constitutional rights, namely the rights to human dignity, privacy, bodily and psychological integrity, as well as the best interests principle,” the judge said.

The director at the Teddy Bear Clinic, Dr Shaheda Omar, said the public fear that children would engage in sex was unfounded.

“Change is always scary. People have nothing to fear. The law is not going to encourage children to become sexually active.”

She said the aim of the law was to prevent the criminal stigma and shame attached to children: “The Jules High School case ended in tragedy for the girl after she was shamed.”

Omar said the previous legislation did not include parents in the equation. “The new law will encourage collaboration. Parents must communicate and guide their children in their growing-up years. Talking about this issue during a school life orientation programme will benefit children,” she said.

Omar said the law was now tougher on adults who sexually violated children.