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Bloemfontein - The criminalisation of consensual sexual conduct between consenting adolescents is unconstitutional, the Constitutional Court has ruled.
The court confirmed a lower court's order that sections 15 and 16 of the Criminal Law Amendment Act, which relate to sexual offences, were unconstitutional.
The unanimous judgment, written by Judge Sisi Khampepe, was published on the court's website on Thursday.
The sections infringed on the rights of adolescents, aged between 12 and 16, to dignity and privacy, and further violated the best interest principle contained in section 28(2) of the Constitution.
Relying on expert evidence, the court concluded that the impugned provisions criminalised developmentally normative conduct for adolescents and adversely affected the very children the act sought to protect.
The court said the effects of the impugned provisions were found not to be rationally related to the State's purpose of protecting children.
“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,” said Khampepe.
She said the matter was not about whether children should or should not engage in sexual conduct, nor was it about whether Parliament should set a minimum age for consensual sexual conduct.
Khampepe said the court was concerned with a far narrower issue - whether it was constitutionally permissible for children to be subject to criminal sanctions to deter early sexual intimacy and combat the risks associated therewith.
The judgment declared invalid provisions of the act that criminalised consensual sexual conduct between adolescents. The criminal prohibitions against non-consensual sexual conduct with children of any age remained in place.
Criminal restrictions against sexual activity between adults and older children on the one hand, and adolescents on the other, also remained.
The judgment suspended the declaration of invalidity for 18 months to allow Parliament to amend the provisions.
Khampepe ordered a moratorium on all investigations, arrests, prosecutions and criminal and ancillary proceedings (regarding adolescents) in relation to sections 15 and 16 of the act.
This remains until Parliament has remedied the defects identified.