1 CRIM ASSIGNMENT Teddy Bear Clinic

0
A CRITICALLY EVALUATION OF SORMA PROVISIONS (S15 & 16) WITH
SPECIFICREFERENCETO THETEDDYBEARCLINIC FORABUSEDCHILDREN
ANDRAPCANVMIN OF JUSTICE ANDCONSTITUTIONALDEVELOPMENTCCT
2014 (1) SACR 327 (CC).
by
SARVESH NAIR
ASSIGNMENT
Submitted in partial fulfilment of the requirements for the subject
Advanced Criminal Law
for the degree
MAGISTER LEGUM
in
LAW
in the
FACULTY OF LAW
at the
NELSON MANDELA METROPOLITAN UNIVERSITY
March 2015

1
Declaration by student:
I hereby declare the following:
 This is my own work and I have not copied any parts thereof from anyone else;
 I have referenced all direct quotations and paraphrased explanations of
another’s work
 I understand that plagiarism is a violation of the university disciplinary code and
that should I be guilty thereof that I will be subject to any disciplinary steps that
the university may institute against me,
Student’s name: Sarvesh Nair

2
Table of contents
1 Introduction……………………………………………………………………………...…..3
2 Legislative Provisions…………………………………………………………….………..4
2 1 The Constitution of the Republic of South Africa, 1996………………...…….……4
2 2 Criminalising consensual sexual acts under the old Sexual Offences Act...........5
2 3 The Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007………………………………………………………………………….6
2 3 1 Section 15 of the Act prior to the Teddy Bear Clinic Case……………..7
2 3 2 Section 16 of the Act prior to the Teddy Bear Clinic Case……………..8
2 4 Statutory Defenses…………………………………………………………………9-10
2 5 Critical analysis of sections 15 and 16 of the Act…………………………..…11-13
3 The Teddy Bear Clinic Case……………………………………………………………..13
3 1 The High Courts findings....................................................................................13
3 2 The Constitutional Courts findings.....................................................................14
4 Recommendations…………………………………………………………………….17-18
5 Conclusion…….…….……………………….….………..………………...………....19-20
Bibliography…….……………………………….………..………………..........................…21-24

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1 Introduction
In the same year that South Africa hosted the first world cup on African soil, an incident
occurred at Jules High School, which resulted in 3 children being prosecuted for engaging in
consensual sex. Throughout the criminal process these children were traumatised by being
on public display and dragged through the justice system in the midst of a media frenzy.1
The early morning’s crisp paged headline read: “Sex between 12 and 16 okay.”2
Following the judgment in the Teddy Bear Clinic for Abused Children and Another v the
Minister of Justice and Constitutional Development3
(hereafter the Teddy Bear Clinic Case),
the children’s sector celebrated whilst the public expressed outrage with adults stating that
“[if] anyone needs to be criminally charged for South African children having sex at too young
an age, it is the adults who have failed the kids and not the children themselves.”4
Debates
ignited around the country on twitter, the radio and in newspapers, many believing that the
ruling encouraged children to engage in consensual sex without any legal consequences.5
In order to fully appreciate South Africa’s position with regards to criminalising consensual
sexual acts between children the previous dispensation will necessarilybe canvassedas well
as all current legislative provisions pertaining to same, followed by a succinct exposé of the
arguments and effect of the Teddy Bear Clinic Case.Finally, the issueof further amendments
addressing the legislature’s deficiencies, if any, will also be canvassed.
1
Schoombie “Decriminalising Consensual Sex: Reflections on recentcourt victory by Teddy Bear Clinic for
Abused Children” 2013 PANC 1.
2
Du Preez “Sex between 12 and 16 okay” (2013-01-16) The Star 7.
3
CCT 2014 (1) SACR 327 (CC) (hereafter The Teddy Bear Clinic case)
4
Malan “Sexual Offences Act Taken to Task” (2013-05-31) Mail & Guardian 14.
5
Schoombie “Decriminalising Consensual Sex: Reflections on recentcourt victory by Teddy Bear Clinic for
Abused Children” 2013 PANC 2.

4
2 Legislative Provisions
2 1 Constitution of the Republic of South Africa, 1996 (The Constitution)
As South Africa is a diverse developing country, based on a constitutional democracy based
on human dignity, equality and freedom, it is necessary to commence from a constitutional
vantage point. The constitutional provisions relating to children can for the sake of brevity,
be listed as follows:
Section 10 of the Constitution states that “[e]veryone has inherent dignity and the right to
have their dignity respected and protected.” While at first glance, one’s thought processes
may entertain the notion that the section refers to everyone and not every child, the
Constitutional court has in previous judgments endorsed the view that “children are individual
rights-bearers rather than mere extensions of their parents.”6
In a previous Constitutional court judgment Sachs J held that:
“Every child has his or her own dignity. If a child is to be constitutionally imagined as
an individual with a distinctive personality, and not merely as a miniature adult waiting
to reach full size, he or she cannot be treated as a mere extension of his or her
parents…Individually and collectively all children have the right to express
themselves as independent social beings, to have their own laughter as well as
sorrow, to play, imagine and explore in their own way, to themselves get to
understand their bodies, minds and emotions, and above all to learn as they grow
how they should conduct themselves and make choices in the wide social and moral
world of adulthood.”7
Section 14 of the Constitution goes on to state that “[e]veryone has the right to privacy.”8
Privacy, by definition relates to a state in which one is not observed or disturbed and is closely
linked to the quest for freedom from public attention or simply the right to be left alone.9
The
right to privacy is also protected at common law as it is recognized as an independent
personality right.10
6
Teddy Bear Clinic for Abused Children and Another v the Minister of Justice and Constitutional Development
CCT 2014 (1) SACR 327 (CC) par 40; S v M 2007 (12) BCLR 1312 (CC).
7
S v M 2007 (12) BCLR 1312 (CC) par 18-9.
8
Constitution ofthe Republic of South Africa, 1996 (the Constitution)
9
Govindjee and Vranken (eds) Introduction to Human Rights Law (2009) 101.
10
Govindjee and Vranken (eds) Introduction to Human Rights Law 102.

5
Section 12(2) holds that “[e]veryone has the right to bodily and psychological integrity…”11
The right to bodily and psychological integrity is an important innovation in the 1996 Bill of
Rights. The section expressly delineates the ambit of the right to security of the person so as
to include protection of physical integrity and extends it to the protection of psychological
integrity.12
Section 28(2) of the Constitution states that “[a] child’s best interest are of paramount
importance in every matter concerning the child”, the remainder of section28 sets out a range
of rights that provide protection for children that is additional to the protection they are given
by the remainder of the Bill of Rights.13
The best interests principle was established in South
African law in the 1940’s and is not only a principle that helps interpret other rights but is a
right in itself.14
The principle of constitutional avoidance holds that where ordinary legislation gives effect to
a right one should rely on the specific legislation enacted and only once the specific enacted
legislation is in conflict with the Constitution, should the constitutionality of the specific
legislation be challenged.15
2 2 Criminalising consensual sexual acts under the old Sexual Offences Act16
The old section 14 of the Sexual Offences Act17
was designed to protect children below the
statutory age from being sexually exploited. The section criminalised sexual intercourse with
a child less than 16 years of age (‘statutory rape’).18
It was an offense for any male to have
or attempt to have unlawful carnal intercourse with a girl under the age of 16 years19
and for
any female to have or attempt to have unlawful carnal intercourse with a boy under the age
of 16 years.20
In today’s modern society and in the context of ‘immoral or indecent’ acts in a
homosexual context, the age limit was set at 19 years of age.21
11
The Constitution.
12
Currie and De Waal The Bill of Rights Handbook 6ed (2014) 286.
13
Govindjee and Vranken (eds) Introduction to Human Rights Law ch 6; Currie and De Waal The Bill of Rights
Handbook 6ed (2014) 600.
14 Currie and De Waal The Bill of Rights Handbook 619.
15
Hoffman v SA Airways (2000) 21 ILJ 2357 (CC) and SANDU v Minister of Defence & Others (2007) 9 BLLR
785 (CC); See also Hoexter Administrative Lawin South Africa 2ed (2012) 131 – 137; Currie and De Waal The
Bill of Rights Handbook 475.
16
23 of 1957.
17
23 of 1957.
18
Burchell Principles of Criminal Law4ed (2010) 612.
19
S 14(1)(a) of the Sexual Offences Act 23 of 1957; Burchell Principles ofCriminal Law612.
20
S14(1)(b) of the Sexual Offences Act 23 of 1957;Burchell Principles of Criminal Law612.
21
Burchell Principles of Criminal Law612;Burchell notes that the constitutionalityof the distinction between the
different ages for heterosexual and homosexual conductwas successfullychallenged.

6
The section provided that if two children above the age of 12, but under 16 years of age,
engage in sexual intercourse, the male would not be guilty of rape.22
According to Burchell, it appears that mens rea, at least in the form of intention, was not
necessary to establish, however at the least, negligence would have been required for
liability.23
Negligence for instance, would be established where the accusedought reasonably
to have known that the girl was under 16 years of age.24
Burchell further argues that intention
in the form of dolus eventualis would also have sufficed as this would have penalized a
person who foresaw the possibility that a girl was under 16 years of age, but nevertheless
proceeded with the sexual intercourse.25
Under the law prior to the enactment of the Act, there was no specific offence of consensual
indecent assault. If a child victim was below the age of 12 then the accused may still be
charged in terms of the common law crime of indecent assault.26
2 3 The Criminal Law (Sexual Offences and Related Matters) Amendment Act
___32 of 2007 (hereafter the Act)
The Act was a culmination of a process which started in January 1998, with the South African
Law Reform Commission being mandated to investigate sexual offences by and against
children and to make recommendations to the Minister of Justice and Constitutional
Development for the reform of criminal law.27
The Act “represents a comprehensive legislative reform of both statutory and common-law
criminal liability in relation to the commission of sexual offences.”28
The Act repeals large
portions of the Sexual Offences Act 23 of 1957.
The Act also consolidates all crimes relating to sexual matters for example, repealing the
common law crime of rape and replacing it with an extended statutory crime of rape, which
is applicable to all forms of sexual penetration without consent, irrespective of the gender of
22
Burchell Principles of Criminal Law613
23
24
25
26
Burchell Principles of Criminal Law614.
27
Author Unknown “CabinetApproves Submission ofCriminal Law AmendmentBill” (20 November 2014)
http://www.sanews.gov.za/south-africa/cabinet-approves-submission-criminal-law-amendment-bill (accessed
2015-31-03) 1.
28
Teddy Bear Clinic Case par 10.

7
the perpetrator or the victim.29
Not only are large portions of the Sexual Offences Act30
repealed, new sexual crimes not formerly known are now created in our law with the Act
creating comprehensive new crimes in respect of sexual acts against children.31
The commission of non-consensual sexual offences, including rape and sexual assault,
whether committed by adults or children, is dealt with by Parts 1 and 2 of Chapter 2. More to
the point is Chapter 3 of the Act, comprising sections 15 to 22 that deals with sexual offences
against children. Part 1 of Chapter 3 relates to consensual sexual acts with certain children.
A child for the purposes of section 15 and 16 of the Act is defined as “a person 12 years or
older but under the age of 16 years.”32
2 3 1 Section 15 of the Act prior to the Teddy Bear Clinic Case
Under section 15 of the Act, a person who commits an act of sexual penetration with a child
under the age of 16 years of age is guilty of a crime even though the child may have
consented to the act being performed.33
Sexual penetration of a child between the ages of
12 and 16 years of age is criminalised because such a child is not yet mature enough to
properly appreciate the consequences of sexual acts especially the sexual penetration of a
female by male.34
Section 15 of the Act deals with the offence of ‘statutory rape’ and states:
“(1) A person (‘A’) who commits an act of sexual penetration with a child
(‘B’) is, despite the consent of B to the commission of such an act,
guilty of the offence of having committed an act of consensual sexual
penetration with a child.
(2) (a) The institution of a prosecution for an offence referred to in
subsection (1) must be authorised in writing by the National
Director of Public Prosecutions if both A and B were
children at the time of the alleged commission of the
offence: Provided that, in the event that the National
Director of Public Prosecutions authorises the institution of a
prosecution, both A and B must be charged with
contravening subsection (1).
29
Snyman Criminal Law5ed (2008) 353; Burchell Principles ofCriminal Law4ed (2010) 614.
30
Sexual Offences Act 23 of 1957.
31
It is however the view of leading academics,Snyman in casu, that many provisions in the Act are long and
complicated.Even if one considers onlythose sections which create crimes,the provisions are nonetheless
very long,complicated and sometimes repetitive in nature;Snyman Criminal Law354.
32
Section 1 of the Criminal Law (Sexual Offences and Related Matters) AmendmentAct 32 of 2007(hereafter
The Act)
33
34
Snyman Criminal Law393.

8
(b) The National Director of Public Prosecutions may not
delegate his or her power to decide whether a prosecution
in terms of this section should be instituted or not.”35
Sexual penetration is defined in the Act as:
“any act which causes penetration to any extent whatsoever by—
(a) the genital organs of one person into or beyond the genital
organs, anus, or mouth of another person;
(b) any other part of the body of one person or, any object,
including any part of the body of an animal, into or beyond the
genital organs or anus of another person; or
(c) the genital organs of an animal, into or beyond the mouth of
another person”36
The crime in section 15 of the Act is usually referred to as statutory rape. As contained in the
legislation supra, the expression statutory rape is expressly included within the brackets of
the heading. As previously mentioned, the Sexual Offences Act37
punished this type of
conduct in terms of the now repealed section 14.38
Note that “[if] a person commits an act of
sexual penetration with a child below the age of 12… he or she will be guilty of rape because
any ostensible ‘consent’ by sucha young child is by law regarded as invalid.”39
However, one
is dealing with consensual children between the age differences specified above. If the
person who commits an act of sexual penetration is therefore older than 12 but younger than
16, the institution of prosecution must be authorized by in writing by the national director of
public prosecutions. Moreover, both parties to the act must be prosecuted.40
2 3 2 Section 16 of the Act prior to the Teddy Bear Clinic Case
As previously stated, there was no specific offence of consensual indecent assaultof children
mirroring the ‘old statutory rape’ as in section 15 of the Act. The Act repeals the common-law
offence of indecent assault and replaces it with a statutory offence of sexual assault,
applicable to all forms of sexual violation.41
Section 16 of the Act covers consensual sexual conduct short of sexual penetration with
certain children and states that:42
35
Section 15(1) of the Act.
36
S 1 of the Act.
37
Act 23 of 1957.
38
Act 23 of 1957.
39
40
Snyman Criminal Law393;Burchell Principles of Criminal Law614.
41
S16 of the Act.
42

9
“(1) A person (‘A’) who commits an act of sexual violation with a child
(‘B’) is, despite the consent of B to the commission of such an act,
guilty of the offence of having committed an act of consensual
sexual violation with a child.
(2) (a) The institution of a prosecution for an offence referred to in
subsection (1) must be authorised in writing by the relevant
Director of Public Prosecutions if both A and B were
children at the time of the alleged commission of the
offence: Provided that, in the event that the Director of
Public Prosecutions concerned authorises the institution of
a prosecution, both A and B must be charged with
contravening subsection (1).
(b) The Director of Public Prosecutions concerned may not
delegate his or her power to decide whether a prosecution
in terms of this section should be instituted or not.”43
The only two differences between section 15 and 16 of the Act, discussedimmediately supra,
is that whereas the former related to situations where a child between the ages of 12 and 16
years was sexually penetrated, in section 16, one does not deal with sexual penetration
rather sexual violation. Sexual violation is defined in section 1 of the Act and is considered
to have a wide meaning.44
The definition includes conduct of a sexual nature, short of sexual
penetration. According to Snyman, this includes conduct which would have fallen under the
definition of sexual assault under the common law.45
The conduct that the section seeks to
criminalise is therefore the sexual violation of a child. If both parties are children, as with
section 15 of the Act, the consent of the director of public prosecutions is required in writing
for the institution of public prosecution and both parties to the act must be prosecuted.46
The other difference pertains to the defenses available to the parties. Defenses will be
discussed in greater detail infra however for the purposes of perspective and context will be
briefly mentioned. Unlike section 15 of the Act, an additional defence is available for parties
contravening section 16.47
If both the accused persons were children and the age difference
43
S 16 of the Act.
44
S 1 of the Act; Snyman Criminal Law396.
45
46
47
Burchell Principles of Criminal Law4ed (2010) 615; S 56(2)(b) of the Act.

10
between them was not more than two years at the time of the commission of the offence,
then both parties will have a valid defence.48
2 4 Statutory Defenses
Sections 56(2) and (3) of the Act contain statutory defenses to a charge of statutory rape or
statutory sexual assault:
“(2) Whenever an accused person is charged with an offence under-
(a) section 15 or 16, it is, subject to subsection (3), a valid
defence to such a charge to contend that the child deceived
the accused person into believing that he or she was 16
years or older at the time of the alleged commission of the
offence and the accused person reasonably believed that
the child was 16 years or older; or
(b) section 16, it is a valid defence to such a charge to contend
that both the accused persons were children and the age
difference between them was not more than two years at
the time of the alleged commission of the offence.
(3) The provisions of subsection (2)(a) do not apply if the accused person is
related to the child within the prohibited incest degrees of blood, affinity or
an adoptive relationship.”
Tucked away at the end of the Act49
are two defenses which may be relied on. According to
section 56(2)(a), it is a valid defence if the child deceived the person charged with the crime
into believing that he or she was 16 or older. Snyman submits that the prosecution in these
matters bears the onus of proving that the person charged with the crime, was not deceived
into believing that a child was 16 or older. He further submits that the evidentiary onus would
remain on the person charged with the crimeto raise the defence and lay a factual foundation
for the existence of such belief.50
The second defence, as stated above, relates to situation where both persons are children.
Section 56(2)(b) provides a valid defence for someone charged with the crime as contained
48
Burchell Principles of Criminal Law4ed (2010) 615; S 56(2)(b) of the Act.
49
Snyman Criminal Law5ed 2008 Lexis Nexis Durban 394.
50

11
in section 16 of the Act to contend that both parties where children and the age difference
between them was not more than 2 years at the time of the alleged commission of the act.51
Again, as previously stated the close-in-age defence is only available to a charge where both
accused persons were children and contravened section 16 of the Act and not section 15.52
2 5 Critical analysis of sections 15 and 16 of the Act
The Act sets the age of consent for sexual activity at 16 and makes it an offence for any
person older than 16 to engage in sexual acts with children below the age of 16. While the
main purposes of these sections are to protect children from undue influence by adults or
significantly older children, the far reaching sections criminalise any consensual sexual acts
between children aged from 12 to less than 16 years. It appears that their real effect is aimed
more at policing morality and children’s sexuality rather than protecting children from sexual
abuse.53
The consensual sexual experiences of children are considered taboo in South African
society. Adults feel more comfortable believing that children are ignorant about sex due to
their conceptions of the innocence of childhood. 54
While the legislation can be said to be
noble, confusion reigned amidst the bizarre anomalies within the provisions. Major practical
problems regarding the criminalisation of teenage sexual experimentation arise for sections
15 and 16 of the Act.55
For example, where two children older than 12 but younger than 16, engage in consensual
sexual activity, both children will have to be charged. As referred to supra, section 15
criminalises over 12 year olds and younger than 16 year olds who have sex with each other
while section 16 criminalises children within the same age group who engage in any sexual
activity other than penetrative sex. This will mean that a 16 year old girl, who has sex with a
15 year old boy, will be prosecuted alone whilst if the pair were both 15 years old at the time
of committing the offence, both will be prosecuted together.
The provisions also appear contradictory when juxtaposed with certain other sections of the
Act. A case in point of the contradiction is evidenced where an obligation is placed on any
51
S 56(2)(b) ofthe Act.
52
53
Nomdo “Criminalising Consensual Sexual Activities of Adolescents in South Africa” 2014 16 Article-40 3
54
Nomdo “Criminalising Consensual Sexual Activities of Adolescents in South Africa” 3
55

12
person with knowledge that a sexual offence has been committed to immediately report such
knowledge to a police official.56
Failing to report such knowledge is a criminal offence and
the person may receive a fine and/or be imprisoned for a period not exceeding five years.57
This would mean that where adolescents who engaged in sex, consult a guidance counselor,
head nurse, parent, doctor or any other individual who is able to assist with concerns of
unwanted pregnancies or sexually transmitted diseases,these people will be open to criminal
prosecution if they failed to report such knowledge immediately to the police. It is submitted
that the situation that presents itself as a result of the provisions is simply untenable.
Another contradiction is evidenced when comparing the questionable provisions of the Act
to parts of the Children’s Act.58
In terms of that Act,59
no person may refuse to sell condoms
to children over the age of 12 or to provide a child over the age of 12 with condoms on request
where condoms are distributed or provided free of charge.60
In stark contradiction to the
provisions in the Act, the Children’s Act further states that “[a] child who obtains condoms,
contraceptives or contraceptive advice in terms of this Act is entitled to confidentiality…”61
The same section of the Children’s Act states that a child over the age of 12 may be given
contraceptives after proper medical examination and advice is given to the child. Whilst the
Children’s Act protects and upholds children’s right to privacy, provisions in the Act destroys
any prospect of confidentiality through its mandatory reporting provision. As one author puts
it “[t]he emphatic mandatory reporting provision in [the Act] is fundamentally at odds with
legislation that specifically aims to help and support children.62
Furthermore, besides the fact that the definition of sexual violation is overbroad to include
almost any kind of sexual conduct short of penetration, the legislature only saw fit to make
the age differential between the two children relevant to a charge of the lesser offence of
sexual assault (sexual violation) and not for sexual penetration (rape).63
It is submitted that the effects of sections 15 and 16 and the mandatory reporting provision
in the Act violates children’s Constitutional rights. In particular, the rights enumerated supra
56
Nomdo “Criminalising Consensual Sexual Activities of Adolescents in South Africa” 3; S54(1)(a) of the Act.
57
S 54(1)(b) ofthe Act.
58
Act 38 of 2005.
59
The Children’s Act.
60
S 134 (1) of the Children’s Act.
61
S 134 (3) of the Children’s Act
62
63

13
viz: the right to dignity, privacy, bodily integrity and the right to have their best interest
considered paramount.64
3 Teddy Bear Clinic65 Case
Following an incident during November 2010, at Jules High School, which resulted in 3
children being prosecuted for engaging in consensual sex, Teddy Bear Clinic and RAPCAN
(both organisations that deal with child victims) brought a High Court application to contest
sections 15 and 16 as well as the mandatory reporting provisions in the Act.66
The issue before the high court centred on the validity of the sections, which criminalise
various consensual sexual activities between adolescent children.
3 1 The High Court Findings
The High Court upheld the contentions raised by the applicants and declared the two sections
invalid deeming them to be inconsistent with the constitution in so far as they criminalised
children between the ages of 12 and 16 for engaging in consensual sexual penetration with
each other.67
In short Rabie J declared the criminalization of consensual sexual acts (including kissing)
between adolescents unconstitutional and explained that criminalisation would “constitute an
unjustified intrusion of control into the intimate and private sphere of children’s personal
relationships, in a manner that would cause severe harm to them.”68
In essence, the court further held that the provisions ought to be interpreted as implying that
an adult who engages in consensual sexual acts of sexual penetration and sexual violation
with a child aged 12 to 15 years will be guilty of an offence.69
Primarily, the high court
reasoned that in their current form, sections 15 and 16 of the Act infringed children’s
constitutional rights and did more harm than good in seeking to regulate their sexual
activities.
64
See heading supra at 2 1 Constitution ofthe Republic of South Africa, 1996 (The Constitution).
65
Teddy Bear Clinic for Abused Children and Another v the Minister of Justice and Constitutional Development
CCT 2014 (1) SACR 327 (CC).
66
Currie and De Waal The Bill of Rights Handbook 312.
67
Buthelezi and Bernard “The Court Knows the Law” 2014 3 TSAR 625 626.
68
Nomdo “Criminalising Consensual Sexual Activities of Adolescents in South Africa” 3.
69
Buthelezi and Bernard “The Court Knows the Law” 627.

14
The high court attempted to remedy the provisions by introducing a close-in-age defence to
sexual penetration committed between children who are younger than 18 years old and with
an age difference of two years or less.70
The matter then proceeded to the Constitutional Court during May 2013 for confirmation of
the declaration of unconstitutionality.
3 2 The Constitutional Courts findings
Khampepe J commenced by making it clear the court views children as individual bearers of
all the fundamental rights entrenched in the Constitution.71
The court held that adolescents
human dignity was clearly infringed by the provisions as they stood in the Act, as the
criminalisation of private sexual choices is a form of stigmatisation which is both degrading
and invasive.72
Furthermore, the categories of activities prohibited were so broad that it
included activities undertaken in the normal course of development.73
In fact, during the case,
the evidence provided by Flisher and Gevers demonstrated that it is developmentally
normative for adolescent children between ages 12 and 16 to engage in intimate
relationships. Section 15 and 16 of the Act criminalised adolescent sexual activity but the law
did so in a confusing manner.74
The court reasoned that punishing normal developmentally
sexual expression inflicts a state of disgrace on a child.75
On the issue of the right to privacy, the court referred to the continuum of privacy which holds
that one’s inner sanctum of personhood would be safer from limitation than for instance the
right to privacy in the public realm.76
This inner sanctum was protected by the right to privacy
and includes the right to sexual expression which clearly sections 15 and 16 of the Act
applied.77
The court moreover, articulated that the sections of the Act allowed public officials
to intrude into the deeply personal realm of adolescent’s intimate relationships.78
70 Buthelezi and Bernard “The Court Knows the Law” 628.
71
McQuoid-Mason “Decriminalisation ofConsensual Sexual ConductBetween Children:WhatShould Doctors
do Regarding the Reporting ofSexual Offences Under the Sexual Offences Act until the Constitutional Court
Confirms the Judgmentofthe Teddy Bear Clinic Case?” 2013 6 SAJBL 10.
72
Teddy Bear Clinic case atpar 55.
73
74
75
76
77
Teddy Bear Clinic case atpar 55 & 69.
78

15
The court reaffirmed the position of the best interest of a child principle as a standard against
which provisions effecting children are tested.79
With the evidence or lack thereof before the
court, the court concluded that the evidence showed that criminalisation exacerbated harm
and risk to adolescents by undermining support structures, potentially running the risk of
driving the adolescent’s behaviour underground.80
Enforcing the provisions may also cause
adolescents to cease communication thereby causing a rupture in family life and severing
lines of communication between adults and children.81
The court held that even diversion could not save the provisions as there is intensive
interaction between state institutions from the time of arrest to the decision to divert.82
During
this time, children would have already been required to disclose intimate affairs.83
Khampepe J further held that the prosecution of both adolescents where irrational as it was
contrary to the purpose of the Act; he therefore confirmed the declaration of the constitutional
invalidity by the North Gauteng High Court of parts of sections 15 and 16 affecting the
consensual conduct by adolescent children under 16 years of age.84
The court further ordered that the criminal records or diversion orders of any adolescents
under 16 years of age be expunged as a result of the invalidity of parts of sections 15 and 16
of the Act.85
The court with writer’s full admiration and support held that it was fundamentally irrational to
state that adolescents did not have the capacity to make choices about their sexual activity,
yet in the same breath contend that they can be criminally liable.86
The court ordered a
moratorium on all criminal and ancillary proceedings in respect of consensual sexual conduct
by children aged 16 or 17 years with the order of invalidity suspended for 18 months to allow
parliament to correct the defects.87
The court also mentioned that Parliament may wish to
reconsider the close-in-age defence and whether it should apply to sexual penetration.88
79
Teddy Bear Clinic case atpar 65 – 79.
80
Ibid.
81
Teddy Bear Clinic case atpar 65 – 73.
82
83
84
85
86
Teddy Bear Clinic case case atpar 79.
87
88

16
In summation, the following conclusions may be drawn: The findings of invalidity of sections
15 and 16 of the Act are limited to thosethat criminalisesexual conductof adolescent children
under 16 years of age.89
The criminalisation of non-consensual sexual conduct is not
affected.90
The court had insufficient evidence to decide whether sections 15 and 16 of the
Act had the same constitutional implications for 16 and 17 year olds.91
The court was not
prepared to read in a close-in-age defence or confirm the High Court’s judgment in this
regard.92
The case was not about reducing the age of sexual consent. The case did not say
adolescents between the ages of 12 and 16 have a right to have sex but should they decide
to do so, they should not be treated like criminals.
4 Recommendations
Cabinet has approved the submissionof the The Criminal Law (Sexual Offences and Related
Matters) Amendment Act Amendment Bill, 2014 (hereafter the Bill), to Parliament. The Bill
addresses two separate judgements handed down by the Constitutional Court, to remedy
the current position of constitutional invalidity.93
89 McQuoid-Mason “The Teddy Bear Clinic Constitutional CourtCase:Sexual ConductBetween Adolescent
Consenting Children Aged 16 Years Decriminalised and a Moratorium on the Reporting Duties ofDoctors and
Others” 2014 104 SAMJ 3
90
McQuoid-Mason “The Teddy Bear Clinic Constitutional CourtCase:Sexual ConductBetween Adolescent
Others” 3
91
McQuoid-Mason “The Teddy Bear Clinic Constitutional CourtCase:Sexual ConductBetween Adolescent
Others” 3
92
93
Author Unknown “CabinetApproves Submission ofCriminal Law AmendmentBill” (20 November 2014)

17
The Bill reaffirms that the primary objective of sections 15 and 16 remains to protect
adolescents. Clause 1 of the Bill aims to amend section 1 of the Act by omitting the reference
to an adolescent person, namely a ‘‘person who is 12 years or older but under the age of
16’’, from the definition of ‘‘child’’.94
The section now provides that a child will be a person
below the age of 18 for purposes of all the sections in the Act. RAPCAN, the applicants in
the matter, expressed their endorsement of the removal of the section causing confusion, by
stating that “this is a positive development as the special definition of a child as under 16 has
caused confusion for people working with the Act. 95
This proposed amendment is also in line
with the Bill of Rights in the Constitution which says that a child is a person below the age of
18 years.”96
Clause 2 of the Bill aims to effect section 15 of the Act, by inserting a reference to an
adolescent person in subsection (1) for purposes of clarity and decriminalising consensual
sexual acts between two adolescent persons in line with the Constitutional Court’s finding.97
The Bill further amends section 15 by decriminalising consensual sexual acts between a 16
or 17 year old person and an adolescent person where the age gap between the two persons
is not more than two years. In respect of sections 15 and 16 following the Constitutional
Courts judgment,98
the meaning and effects as contained in the Bill now mean that the age
of consent is 16 years (whereas the legislation was previously somewhat unclear).99
http://www.sanews.gov.za/south-africa/cabinet-approves-submission-criminal-law-amendment-bill (accessed
2015-31-03) 1.
94
Memorandum on the Objects of the Criminal Law (Sexual Offences and Related Matters) AmendmentAct
AmendmentBill,2014.
95
The Centre for Child Law, University of Pretoria Submissions on the Criminal Law (Sexual Offences and
Related Matters) AmendmentAct AmendmentBill [B18-2014]2015 1.
96
97 Memorandum on the Objects of the Criminal Law (Sexual Offences and Related Matters) AmendmentAct
AmendmentBill,2014.
98
Teddy Bear Clinic Case where the court at par 49 held that s15 and s16 of the Act infringes on children’s
fundamental human rights;atpar 55 where the court held that criminilsation is a form of stigmatization thatis
degrading and invasive;at par 74 where the court held that the use of diversion cannotsave the impugned
provisions;atpar 79 where the court held that it was fundamentallyirrational to state that adolescents do not
have the capacity to make choices abouttheir sexual activity and yet in the same breath contend that they have
the capacity to be held criminallyliable for such choices and par 101,where the court held that s15 and s16
were unconstitutional in so far as they criminalised adolescents for engaging in consensual sexual conduct.
99

18
The requirement that a decision whether to prosecute a 16 or 17 year old person (where the
age gap between such person and the adolescent person is more than two years) or not,
should be taken by the relevant Director of Public Prosecutions is retained.100
Clause 3 of the Bill aims to amend section 16 of the Act, dealing with statutory sexual assault,
in the same manner as clause 2 does in respect of section 15 of
the Act. The proposed insertion of the two year age gap in respect of 16 or 17
year old persons and adolescents requires that the two year age gap defence as
reflected in section 56(2)(b), should be omitted from that section.101
The amendments have been met with further approval from RAPCAN as the age of consent
stays the same as it was prior to the Teddy Bear Clinic case and a person who is 18 years
or older may still not engage in consensual sexual acts with a person who is below the age
of 16, this remains a criminal offence.102
However, there is now no criminalisation, for
consensual sexual activity, of children who are between the ages of 12 and 16 years old;
children who are 16 and 17 years will only be charged if the age gap between them and the
other child concerned is more than 2 years.103
Needless to say, non-consensual sexual activity still remains a crime.
5 Conclusion
The High Court judgment in the Teddy Bear Clinic case was largely confirmed by the
Constitutional Court. The judgment of the High court initially sent out mixed signals and was
100
Memorandum on the Objects of the Criminal Law (Sexual Offences and Related Matters) AmendmentAct
AmendmentBill,2014.
101
ibid
102
103
Ibid.

19
heavily criticised by different sectors of the society, with many regarding the judgment as
encouraging sexual promiscuity among teenagers.104
It is likely that the criticism may be misplaced by critics who include parents, clergymen and
even politicians by not reading the judgment carefully.105
It is not disputed that South Africa
is facing a significant problem with its youth generally. The AIDS pandemic, sky-rocketing
teenage pregnancies and a prevalence of predators that prey on teenagers are but a few
examples.106
However, criminalising teenage or child sex, kissing and petting only treats the
symptoms of the problem, instead of dealing with the root cause.107
Snyman notes that “… prosecution may cause more harm than good and some form of
educational treatment by, for example, by welfare authorities may prove to be more beneficial
than the institution of criminal proceedings.”108
Considering the treatment of the children
concerned in, for example, the Jules High School case, one can hardly argue that it is not
harmful for children to be exposed to the criminal justice system. The children under
investigation in the Jules high case were required to give detailed statements to investigating
officers, prosecutors, and the magistrate in separate interviews, all in the presence of their
parents and without the assistance of a legal representative. They were subjected to intense
media scrutiny which stigmatised them to the extent that one of the children never went back
to school to write year-end exams.109
The judgment was not about morals. It did not say that sex below 16 years of age is
acceptable. It did not say that adolescents had a right to sex. In light of the courts finding,
clarity needs to rein in the minds of the legislatures. Criminalising activity that is
developmentally normal between adolescent children between ages 12 and 16 was an
example of paternalistic legislation attempting to police morality. Children are bearers of
rights as entrenched in the Constitution and are entitle to the full enjoyment of such, however
with rights comes responsibility and one can only hope that the youth are responsible bearers
of those rights.
104
Buthelezi and Bernard “The Court Knows the Law” 2014 3 TSAR 625 626.
105
Ibid.
106
Information Standard “Looking After Your Sexual Health” NHS (2014) 2.
107
Buthelezi and Bernard “The Court Knows the Law” 636.
108
109

20
BIBLIOGRAPHY
LEGISLATION
Sexual Offences Act 23 of 1957

21
Constitution of the Republic of South Africa, 1996
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
The Children’s Act 38 of 2005
The Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill,
2014
BOOKS
Burchell Principles of Criminal Law 4ed (2010) Jut & Co CapeTown
Currie and De Waal The Bill of Rights Handbook 4ed (2011) Juta & Co CapeTown
Currie and De Waal The Bill of Rights Handbook 6ed (2014) Juta & Co CapeTown
Hoexter Administrative Law in South Africa 2ed (2012) Juta & Co CapeTown
Govindjee and Vranken (eds) Introduction to Human Rights Law (2009) Lexis Nexis Durban
Snyman Criminal Law 5ed (2008) Lexis Nexis Durban
JOURNAL ARTICLES
Buthelezi and Bernard “The Court Knows the Law” 2014 3 TSAR 625
McQuoid-Mason “Decriminalisation of Consensual Sexual Conduct Between Children:
What Should Doctors do Regarding the Reporting of Sexual Offences Under the Sexual
Offences Act until the Constitutional Court Confirms the Judgment of the Teddy Bear Clinic
Case?” 2013 6 SAJBL 10.
McQuoid-Mason “The Teddy Bear Clinic Constitutional Court Case: Sexual Conduct
Between Adolescent Consenting Children Aged 16 Years Decriminalised and a Moratorium
on the Reporting Duties of Doctors and Others” 2014 104 SAMJ
16 Article-40
Schoombie “Decriminalising Consensual Sex: Reflections on Recent Court Victory by
Teddy Bear Clinic for Abused Children” 2013 PANC
TABLE OF CASES
Hoffman v SA Airways (2000) 21 ILJ 2357 (CC)
J v National Director of Public Prosecutions and Another 2014 (7) BCLR 764 (CC)

22
SANDU v Minister of Defence & Others (2007) 9 BLLR 785 (CC)
S v M 2007 (12) BCLR 1312 (CC)
Teddy Bear Clinic for Abused Children and Another v the Minister of Justice and
Constitutional Development CCT 2014 (1) SACR 327 (CC)
WEBSITES
Author Unknown “Cabinet Approves Submission of Criminal Law Amendment Bill” (20
November 2014)
http://www.sanews.gov.za/south-africa/cabinet-approves-submission-criminal-law-
amendment-bill (accessed 2015-31-03)
MISCELLANEOUS
Du Preez “Sex between 12 and 16 okay” (2013-01-16) The Star
Malan “Sexual Offences Act Taken to Task” (2013-05-31) Mail & Guardian
The Centre for Child Law University of Pretoria “Submissions on the Criminal Law (Sexual
Offences and Related Matters) Amendment Act Amendment Bill [B18-2014] 2015” Power
Point Presentation
Information Standard “Looking After Your Sexual Health” NHS (2014)

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