CCT12/13

[2013] ZACC 35

2013 (12) BCLR 1429 (CC)

2014 (2) SA 168 (CC)

2014 (1) SACR 327 (CC)

Khampepe J

30 May 2013

3 October 2013

http://hdl.handle.net/20.500.12144/3706

Application for a confirmation of an order of constitutional invalidity of the Pretoria High Court: Teddy Bear Clinic for the Abused Children and Another v Minister of Justice and Constitutional Development and Another (73300/10) [2013] ZAGPPHC 1 (4 January 2013).

Application for confirmation of an order of constitutional invalidity of sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The Teddy Bear Clinic applied to the North Gauteng High Court, Pretoria for an order declaring the sections unconstitutional to the extent that they criminalise consensual sexual conduct between children. The order was granted by the High Court. The Court declared sections 15 and 16 of the Act unconstitutional in that they infringe the rights of adolescents (12 to 16-year olds) to dignity and privacy, and further that they violate the best interests of the child principle contained in section 28(2) of the Constitution. Relying on expert evidence, the Court concluded that the impugned provisions criminalise developmentally normative conduct for adolescents, and adversely affect the very children the Act seeks to protect. Therefore, the effects of the provisions were found not to be rationally related to the State’s purpose of protecting children and were declared invalid only to the extent that they criminalise consensual sexual conduct between adolescents. Accordingly, the declaration of constitutional invalidity was confirmed and the operation of the order was suspended for 18 months to allow Parliament to amend the provisions. The Court ordered a moratorium on all investigations, arrests, prosecutions of, and criminal and ancillary proceedings (regarding adolescents) in relation to sections 15 and 16 of the Act, until Parliament has remedied the defects identified. The Minister was ordered to take the necessary steps to ensure that the details of any adolescent convicted of an offence in terms of sections 15 or 16 of the Act do not appear in the National Register for Sex Offenders and to issue the adolescent with a certificate of expungement. Judgment: Khampepe J (unanimous).