Johannesburg - The Constitutional Court has declared a section of the Sexual Offences Act unconstitutional and suspended it for 15 months.
The section in question, section 50(2) of the Sexual Offences Act, prescribes that when a person is convicted of a sexual offence against a child or mentally disabled person, a court must order that their particulars be included in the National Register for Sex Offenders.
The section posed a problem as it failed to give a court the power to decide whether to put a child offender on the register. It also did not allow an offender an opportunity to argue why he or she should not be listed in the register.
In the unanimous ruling on Tuesday, the Constitutional Court noted the list adversely affected sex offenders placed on the list by limiting their employment and licensing opportunities, and ability to care for children and the mentally disabled.
Justice Thembile Skweyiya said: “(The suspended section) is declared inconsistent with the constitution and invalid to the extent that it unjustifiably limits the right of child sex offenders to have their best interests considered of paramount importance.”
In the Sexual Offences Act, employers or licensing authorities can face criminal sanctions if they hire or provide prohibited services to a sex offender on the registry.
The section prevented sex offenders from having “their best interests considered of paramount importance”.
The case was championed by Childline South Africa, the Teddy Bear Clinic for Abused Children and the National Institute for Crime Prevention.
The NGOs, listed as “friends of the court”, supported the order of invalidity, and because they felt that an assessment needed to be made by a qualified professional before a child offender was entered into the registry.
The case was heard first by the Western Cape High Court, which struck down the section.
The applicant who brought the case to court had been charged with raping three young boys when he was 14.
The high court declared the clause temporarily invalid while Parliament reviewed the clause.
The court asked that the justice and constitutional development minister and the national director of public prosecutions compile a report by July, with the particulars of all people on the register who were younger than 18 when they committed their offence.
It was upheld in the Concourt.