Yolande Du Preez

PRETORIA: It is no longer a criminal offence for children aged between 12 and 16 years old to engage in consensual sexual activities with each other, the Pretoria High Court ruled yesterday.

Judge Pierre Rabie’s ruling follows an application last April by The Teddy Bear Clinic for Abused Children, supported by the Centre for Child Law, challenging some provisions of the Sexual Offences Act. They requested the court to declare certain provisions unconstitutional as these infringed on a child’s right to dignity and privacy.

The application was opposed by the justice minister and the national director of public prosecutions.

The judge’s ruling was described as a “victory for the rights of children” by applicant and director of the Teddy Bear Clinic Shaheda Omar.

In his ruling, Rabie declared two sections of the Sexual Offences Act which criminalise consensual sexual activity between children older than 12 and younger than 16 invalid and inconsistent with the constitution.

The act states that all consensual sexual acts between children of that age – even kissing – are criminal offences.

This meant that both parties faced the possibility of being criminally prosecuted in terms of the act. The act also states that any person – such as a parent, a teacher, a school nurse – who is aware of consensual sexual activities between children must report the children to the police or face possible prosecution themselves.

During the trial last year, Rabie voiced his own concerns about the act. He noted that it would even be an offence if a child under 16 was kissed on the mouth when relatives came together and greeted each other.

“This shows the absurdity of some of the provisions of this act,” he said at the time.

“Very little, if anything, is added to the protection of children by criminalising consensual sexual conduct between children, and it has been proven by evidence submitted to court that children charged under the provisions will be severely harmed,” Rabie said.

Omar said the clinic was delighted by the court’s ruling.

“It promotes the best interests of children,” she said.

Mtunzi Mhaga, spokesman for the Department of Justice and Constitutional Development, said the department was considering an appeal.