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 certain provisions of the Sexual Offences Act.
The two organisations argued the Act often resulted in many underage pregnant girls not wanting to have abortions at clinics, as this would lead to criminal charges against them and their partners.
They requested the court to declare certain provisions unconstitutional as they 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.
While the judge’s ruling was described as a “victory for the rights of children” by the applicant and Teddy Bear Clinic director Shaheda Omar, the Department of Justice and Constitutional Development said it would impact on the escalating rate of sexual violence among children under the age of 16.
In his ruling, Judge Rabie declared the two sections of the Sexual Offences Act, which criminalise consensual sexual activity between children under the age of 16 years and above 12 years, invalid and deemed them to be inconsistent with the constitution.
The Sexual Offences Act states that all consensual sexual acts between children of that age, even kissing and not only penetration, are criminal offences. This meant that both consensual parties faced the possibility of being criminally prosecuted in terms of the act.
The act also stated that any person, be it parents, teachers or others, who were aware of consensual sexual activities between children had to report the children to the police, or face possible prosecution themselves.
During the trial last year, Judge Rabie voiced his own concerns about the legislation.
He noted that in terms of the act, it would even be an offence if a child under 16 was kissed on the mouth when relatives came together and greeted each other by kissing.
“This shows the absurdity of some of the provisions of this act,” he said at the time.
According to the respondents, the act is there to protect children from predatory adults and sexual predators. It is also meant to protect children from the criminal justice system, and to correct and regulate the sexual activity of children, among others.
“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,” Judge Rabie said.
Omar said the Teddy Bear Clinic was delighted by the court’s ruling.
“It promotes the best interests of children by protecting them from being violated by the criminal justice system, therefore advancing the rights of children,” she maintained.
Mthunzi Mhaga, spokesman for the Department of Justice and Constitutional Development, said the department had noted Judge Rabie’s ruling. “We are currently studying the judgment and reflecting on all the legal issues canvassed therein, with a view to exploring whether there are valid grounds upon which an appeal can be lodged.
“(This) judgment has far-reaching implications in the escalating rate of sexual violence among children under the age of 16 years,” he added.
Mhaga said the decision whether to appeal would be determined after a proper analysis of the judgment.