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The Western Cape High Court has for the second time in 18 months exposed a defect in the controversial Sexual Offences Act, the very backbone of South Africa’s sexual offences system, prompting child rights activists to question whether the time has come for a complete review of the legislation.
The latest controversy is around the inclusion of the details of those convicted of sexual offences involving children on the National Register for Sexual Offenders.
This comes after a full Bench of the court recently declared invalid and unconstitutional a section of the act, because it doesn’t give the offender a chance to argue why they shouldn’t be on that list.
The legislation, according to the judgment, requires that the court convicting an offender of a sexual offence involving a child or mentally ill person “must”, after imposing sentence, make an order that the person’s particulars be included in the register.
But Judge Robert Henney complained that the definition, in the act, of what constitutes a sexual violation was broad, taking in everything from consensual sex between minors, to kissing someone without his or her consent.
The ultimate goal of having a sex offenders’ register, he pointed out, was to protect children and mentally ill people from sex offenders, and to eliminate the chances of offenders gaining access to them.
It could never have been the legislature’s intention to have the particulars of child sex offenders entered in the register where they did not pose a threat to other children. And the fact that the act did not allow an offender to make representations to persuade a court not to order that his or her details be entered in the register, violated the offender’s right to a fair hearing in terms of the constitution.
“In my view, there is no legitimate constitutional purpose in disallowing a court the discretion to decline to make such an order, provided that such discretion is exercised in a judicious manner,” Judge Henney said.
The court ordered that its decision will not be retrospective and, while it suspended the declaration of invalidity for 18 months to give the legislature time to amend the section to bring it in line with the constitution, the case will first have to go to the Constitutional Court for confirmation.
Judges Burton Fourie and Elize Steyn agreed.
Last year a full Bench of the same court ruled that there were fatal flaws in the act, with legislators omitting to prescribe sentences for at least 29 offences listed in the act.
The directorate hastened to take the matter further to the Supreme Court of Appeal and, in the interim, provisionally withdrew affected pending cases, and postponed those that were part-heard.
The following month, the Supreme Court of Appeal overturned the High Court’s decision, finding that the absence of a specified penalty from the charge sheet did not render the charge invalid, nor warranted its quashing.
This year the Constitutional Court reserved judgment on whether it was unconstitutional to criminalise consensual sex between children between the ages of 12 and 16.
The Teddy Bear Clinic for Abused Children and Resources Aimed at the Prevention of Child Abuse and Neglect (Rapcan) asked the court to confirm a judgment of the Pretoria High Court that sections of the act were unconstitutional because they required the prosecution of children involved in consensual kissing, petting and penetrative sex.
The organisations submitted that activities such as kissing, petting, some forms of cuddling and sexual intercourse were widely practised by adolescents, were “developmentally normative”, and contributed to positive and healthy development if conducted in ways that were consensual and respectful.
On the Western Cape High Court’s latest decision, Morgan Courtenay of the Centre for Child Law, which acted as amicus curiae (friend of the court), said the effect of the order, if confirmed, was that sex offenders would be entitled to advance argument as to why they should not be included on the register.
They would then have to prove that they are not a danger to children or the mentally disabled, and that society did not need to be protected from them.
Courtenay said there was an “inherent conflict” within the act, with offences that exclude penetration all lumped together under one heading.
“Sexual offences, particularly within the South African context, is a very emotional issue, and our legislators want to stamp it out once and for all.
“I think they tried to do it in broad strokes in the Sexual Offences Act and did not really think about the repercussions that flow from painting everyone with the same brush. I think that is the problem,” he said.
In his view, the act needed to be revisited.
“Hopefully they will consider revising the entire act in the near future to iron out these difficulties because we are seeing various cases being brought,” he said.
Childline’s Joan van Niekerk echoed Courtenay’s sentiments, saying the final version of the Sexual Offences Act was not what the Law Reform Commission had recommended.
“They made several recommendations that were simply not listened to.
“This is where we have a very specialised area of the law in which the final decision makers were politicians, who really had very little experience in the field and very little knowledge of actually working with the issue of sexual offences in our courts,” she said.
Describing the act as “a very flawed piece of legislation”, Van Niekerk said there were many issues that Childline believed required further thought. As it stood, the legislation was not victim or child friendly, and perpetuated the challenges South Africa had had with the adjudication of sexual offences matters.
Van Niekerk added that the final version of the act was also never opened up for public comment, despite the fact that many experts in the field asked for such a step.
“We foresaw the problems that we are now experiencing,” she said.
Debbie Schafer, the DA’s justice and constitutional development spokeswoman, agreed that it was clear the act still had “some issues to be ironed out”, including the definition of a sexual offence.
“I think that this judgment provides an ideal opportunity for Parliament to take another look at this act, and tighten up issues that are still problematic, in a holistic manner.”
Schafer said the section should not apply to convicted minors at all, because it was in conflict with the Child Justice Act. She was however relieved that the court held that there may be cases where it was justified to place a minor’s details on the register.
“Imagine if someone is 17 years old and convicted of a violent offence but, just because he is not 18, his name is not placed on the register. Within several years he could be working with children,” she said.
She described as “ludicrous” the fact that the definition of a sexual offences was so broad that kissing could lead to someone’s name being entered on the register.
In a recent written response to a parliamentary question, Justice Minister Jeff Radebe said there were 3 753 names on the register - about six times the number recorded three years ago.
The register records the names of those found guilty of sexual offences against children and mentally disabled people, and allows employers to check whether a potential employee is fit to work with children or the mentally disabled.
It is not the same as the Child Protection Register, which records incidents of abuse or neglect inflicted on children. - Saturday Argus