Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: public hearings Day 1

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Justice and Correctional Services

03 March 2015
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Meeting Summary

The meeting began with the adoption of a Committee Report to the National Assembly about the application to the Chief Justice for an extension of the period by which Parliament must have amended the Criminal Law (Sexual Offences and Related Matters) Amendment Act. The Committee then heard submissions on the proposed amendments to the Act.

Teddy Bear Clinic
This submission emphasised the highly negative impact in subjecting children to the criminal justice system for engaging in consensual sexual activities. This ranged from public humiliation and secondary victimisation to depression. Teddy Bear Clinic therefore supported the amendments decriminalising consensual sexual activities between adolescents. It noted concerns about the potential for automatic inclusion of children on the Sex Offenders Register, because this did not provide opportunity for the consideration of the best interests of the child

This submission began by presenting anecdotal evidence about the impact of the impugned provisions on children. It further provided some academic evidence about normal and healthy sexual exploration by adolescents. The submission concluded by proposing an alternative to criminalisation in having social institutions educate and guide children on sexual matters.

Justice Alliance South Africa
This submission, while grudgingly accepting that decriminalisation was the only option left following the judgement of the Constitutional Court, suggested two further amendments to the Bill. The first was that the lowest age for consensual sex between adolescents be raised to 13, thereby excluding primary school children from its ambit. Secondly, to mimic the provisions of the South African Schools Act which made it an offence for parents to knowingly allow their children to remain out of school for a sustained period, by making it a criminal offence for parents to knowingly allow their children to engage in sexual activity. Alternatively, make it reportable to an appropriate institution such as the Department of Social Development.

Commission for Gender Equality
The Commission for Gender Equality in general supported the Bill, but had concerns about the potentially unfair discrimination between children who fell within the ambit of the current close-in-age exclusion and those which did not. Further, it also supported the idea that the answer to preventing adolescent sexual activity outside of decriminalisation, was to leave the responsibility with societal organisations.

Family Policy Institute
This submission sought to emphasise the importance of the family unit as the basic group unit of society where sexual values ought to be learnt. The submission categorically rejected the notion that there was any form of healthy or normal adolescent sexual exploration or experimentation. While conceding that criminalisation was no longer an option, the submission encouraged Parliament to use every other legislative means at its disposal to curb adolescent sexual activity and support the family structure.

Foundation Nation Restoration
This submission rejected the amendments, but agreed that criminalisation was not the answer. Relying on the biblical principles which underpin the organisation, the submission encouraged a consistent application of the definition of a child found in section 28 of the Constitution and therefore arguing for the age of consent to be 18 only.

Discussion followed each of the submissions, with input from the Members generally reminding the organisations making representations that decriminalisation was the only option and asking for concrete proposals for alternative ways in which to prevent adolescent sexual activity. It was also generally agreed that a summit dealing with the network of considerations which lead to adolescent sexual activity be held to bring the issue to a larger platform where more stakeholder’s views could be accounted for.

Meeting report

Committee Report on Application to the Chief Justice for Extension
The Chairperson stated that the purpose of the meeting was to hear public submissions on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill [B18-2014] which was the result of a Constitutional Court (CC) judgement, declaring certain aspects of the principal Act unconstitutional and setting a date by which the amendment must be effected. The Committee had to apply to the Chief Justice for an extension of this deadline, because participatory democracy is a cornerstone of the legislative process and it is important that the public be given a meaningful opportunity to be heard. More than 400 submissions were received and post-extension more than 900 submissions were received. He welcomed the interest of people in this legislative process, as it would ensure the will of the people is represented in the legislation passed. He requested that the Committee Report on the request to the Chief Justice be adopted.

Mr S Swart (ACDP) suggested changing the wording in the Report to read: The Committee requests the National Assembly ‘support’ the request, rather than the National Assembly ‘condones’ the request. He was unsure about including the sentence about the extension of the submission deadline. Subject to this, he moved for adoption of the Report.

The Chairperson said the holding of this public hearing was a consequence of the judicial pronouncements and indicative of Parliament being aware of civil society’s legitimate role in the legislative process. The large number of submissions received demonstrate the public’s interest in the matter. Not all the submissions have been invited for oral submissions, the submissions were studied and all will be taken into account. A select few which deviated from the commonalities or had additional content were invited to make additional submissions.

Teddy Bear Clinic
Dr Shaheda Omar, Director of Clinical Service: Teddy Bear Clinic, reviewed the history of the Teddy Bear Clinic which is a non-profit organisation. The TBC works with both victims of sexual abuse and child sex offenders and has done so for 28 years. The TBC’s medical/legal work is located at Johannesburg General Hospital and falls under the Paediatrics department of the Medical School at the University of the Witwatersrand. It was established following the need for urgent medical examination of children, specifically comprehensive services for child victims of abuse and child victimisers. This includes forensic and psychological assessments, counselling and therapeutic support. TBC also provides training for educator training on sexual abuse and diversion for child sex offenders, conducts research and runs sexual awareness campaigns in schools.

Dr Omar said the TBC decided to take the matter to court, because sections 15 and 16 criminalised all forms of consensual sexual behaviour between children aged between 16 and 12, including holding hands, cuddling, kissing and other behaviours part of normal adolescent’s sexual development. Rabie J ruled in favour of the applicants stating that provisions in the Criminal law (Sexual Offences and Related Matters) Amendment Act (Sexual Offences Act) “criminalised a significant number of children for engaging in consensual sexual activities”. These provisions cover a wide range of sexual acts commonly performed by children engaged in normal sexual exploration. TBC supports the decriminalisation and the Bill, because criminalisation is both labelling and disempowering; inducing secondary trauma upon the child in contravention of their best interests. Apart from creating anomalies when read with other legislation, these sections infringe a range of children’s constitutional rights and were not rationally connected to the purpose which is to protect children and persons with disabilities from abuse by adults. Even where diversion occurred the children are not protected from exposure to earlier processes in the criminal justice system, such as arrest, questioning by police and detention in cells. The questioning had negative effects on the dignity of the children and the arrest and detention obviously exacerbated this effect.

Dr Omar said TBC’s experience in dealing with adolescents engaging in consensual sex included:
▪ Public exposure and humiliation are a real risk as was seen in the Jules High School incident in Gauteng. The wider school public suffered from this exposure and the stigma which emerged, adding to the victimisation of the children who were both directly and indirectly implicated. The children involved in these consensual sexual activities were forced to attend a diversion programme and appear in court suffering its rigours. While diversion has a lot of merit, in this instance it was not appropriate. One of the girls involved in the Jules High matter was in therapy for a long time, racked with guilt, self-blame and stigma. In addition she manifested compelling symptoms of depression, self-mutilation and suicidal thoughts. She felt labelled and questioned her behaviour, which had a devastating impact on her wellbeing. She failed to complete her schooling, dropping out as she could not handle it emotionally.
▪ These provisions are particularly harmful for girl children, as they can bear a physical marker of sexual intercourse in pregnancy, where boys do not. Girls will thus be an easy target for prosecution under these misguided laws. Far from deterring risky behaviour, the provisions discouraged girls from reporting rape for fear of being charged with consensual sexual penetration or violation. This puts them at risk and lends itself to deep psychological scarring from the discrimination which they would experience by the state and potentially the community as was found in the Jules High saga. Two of the girls implicated in the incident changed schools, while the media coverage and involvement of senior government officials further exposed one of their identities.
▪ Turning to the vengeful farther syndrome, Dr Omar said TBC had received allegations from fathers stating their daughters had been raped, when in fact the sex was consensual. A typical example was a 15 year old girl who was in a consensual sexual relationship with a 15 year old boy from her school, when this was accidentally discovered by the father, he laid a charge of rape. Both were sent for diversion through TBC and through this process the girl made a disclosure that the sex was consensual. During the diversion, the girl started to present signs of secondary trauma as what had happened became public knowledge in her school. Similar incidents have been reported by other parents, resulting in an intrusion of control into the intimate and private sphere of children’s person relationships, in a manner which could cause severe harm to them by inducing secondary trauma and victimisation.
▪ Instead of being helpful, it is more harmful and therefore counterproductive. Presenting with an increased incidence of teenage pregnancies, because if these girls went to healthcare facilities to obtain contraception, they would be reported and subjected to the criminal justice system. The same applies for backstreet abortions, as girls were too afraid to seek termination of pregnancy through the state, because this would result in their being reported to the authorities under the legal obligation to report according to section 54 of the Sexual Offences Act. Back street abortions present further problems, like incomplete abortions and infections.

Dr Omar emphasised that at no stage was or is sexual conduct between teenagers condoned or encouraged. TBC is a child abuse clinic and focuses on the wellbeing of each child. No request was ever made for the age of consent to be lowered. The age of consent remains the same, at 16 years.

Dr Omar turned to false allegations of rape in the case of pregnancy. Young girls have alleged at TBC that they were raped by strangers because of their pregnancies, because they were too afraid to admit that they were in consensual sexual relationships due to the legal implications. Criminalisation, coupled with a duty to report hinders the ability of both parents and support organisations to educate, empower and guide children in their sexual relationships. This they cannot do because they cannot be seen to promote behaviour which is illegal. Parents are obliged to report any intimate behaviour between children, while what is required is an open and frank discussion between children and adults about positive sexual behaviour.

Dr Omar highlighted that these cases do not deal with any acts of sexual violence, they simply deal with consensual sexual activity between adolescents. Violent sexual offences committed by children will still be dealt with in the criminal justice system under the Child Justice Act. There are glaring contradictions in arguing that adolescents are incapable of understanding the implications of their choices about sexual activity, yet potentially holding them criminally liable for such a choice.

Dr Omar noted that TBC supports the proposed amendments to sections 15 and 16 flowing from the CC’s ruling. It would like to propose the following: parents should support and educate the children to help them make informed decisions, without fear of incriminating the child or themselves. Secondly, what is required is an open and frank discussion about positive sexual behaviour. Government departments should invest in parenting programmes to facilitate discussions between parents and children. Schools should be equipped to provide adequate education and information through their life skills programme; theoretically schools should already be doing so but there are practical limitations. Finally, there should be a shift from punishment to prevention.

Dr Omar said TBC would like to draw attention to sections 46 to 48. The TBC support the Bill’s proposed amendments to these sections which deal with the responsibility to disclose inclusion on the sex offenders register. TBC supports the Bill with amendments, which are as follows:
▪ Children convicted of a sexual offence should not automatically go onto the register, as it is problematic to treat children the same way as adults;
▪ Children should not automatically be placed on the register, unless the child presents a high risk of reoffending or has committed more than one offence;
▪ Compelling circumstances should be required for inclusion and it should be at the discretion of the court to decide what constitutes such circumstances;
▪ It should be the responsibility of the state to ensure that individual assessments are made;
▪ Currently it requires the child to make representations against inclusion and this has cost implications, therefore making the process unavailable to children who cannot afford legal representation;
▪ The costs of the representations against inclusion should be borne by the state, to ensure that all children have equal access; and
▪ Issue of assessments is critical, yet there is no clarity about who pays the costs, who conducts them nor who the suitably qualified persons are who are to conduct the assessments.

In conclusion, she quoted the Zulu proverb umuntu ngumuntu ngabantu (a person is a person, because of people).

The Chairperson thanked Dr Omar for the submission, saying it was clear that TBC had done its work through the provision of empirical evidence. Emphasis has been placed on parents, professionals, government departments and school. In society there are children giving birth to children and such people are captured by the term parents and this needs to be looked into. It is important to also look at what already exists within society. In traditional communities, Queen Mothers take the responsibility of educating children in this way and perhaps the support spoken about should be government supporting such community structures.

Mr Swart said this was an issue that has been struggled with for many years and noted that he was part of the initial drafting of the Sexual Offences Act. The ACDP’s moral stance is that sexual conduct by adolescents is wrong and he did not think anyone was promoting that. At hand was a judgment, which required that Parliament had to now adjust the legislation. Clearly the legislation needed to be adjusted and he thanked TBC for taking the matter to court, bringing clarity to the provisions on the register and the broad definitions of sexual violation. He noted the principle of de minimus non curat lex and said it was regrettable that the Sexual Offences Act became known as the “kissing Bill” as there was never the intention that kissing would be prosecuted. The issue, dealt with in many other jurisdictions, was full penetrative sex, of a hetero or homosexual nature, between adolescent children and what the role of state, family and faith based organisations (FBOs) should be in dealing with the problem. The judgment has given some parameters, which he may not necessarily agree with, but which must be abided by. He asked what the role of the state should be, given that the court found at paragraph 81 that “except for the purpose of discouraging adolescents from prematurely engaging in consensual sexual conduct which may harm their development and engaging in sexual conduct in a manner that increases the likelihood risks associated… materialising, are legitimate and important”. This indicates that the CC was of the opinion that the state does have a role to play, barring criminalisation. He felt a mechanism was needed to prevent adolescents from penetrative sex which obviously carries risk. Secondly, while the age of consent is not at issue, several of the submissions have made the point that practically the age of consent has been reduced by decriminalisation from 16 to 12. Does TBC see this as the case? Further, how are children to be protected, given that the reason for restricting the age for gambling, purchasing cigarettes and driving to 18 is children’s lack of cognitive development? This being the ambit of the debate, he asked for Dr Omar’s input.

The Chairperson agreed that this is the ambit of the debate and said therefore Dr Omar cannot be expected to answer outside her competencies.

Dr Omar replied that if the Children’s Act is looked at, this Act addresses children who are at risk or vulnerable children. Therefore, statutory intervention is made there for children who would be a danger to themselves or others. This would allow for these children to receive the intervention through statutory programmes and the like. On decriminalisation’s effect on the cognitively impaired, if the children are not as cognitively developed as they should be, then these cases are catered for in the Children’s Act through psychological assessment and in the non-governmental (NGO) sector children who present challenging behaviour are regularly individually assessed. On the various roles and responsibilities, she said the Chairperson had highlighted an important fact, that the interventions occur in an ecological framework starting with the family and peer environment and education by government departments. Essentially, the intervention must be holistic and aimed at protecting children and their best interests.

Mr Swart repeated his question about the effect of decriminalisation on the effective age of consent.

Dr Omar replied that she had pointed out the anomalies in her submission. If various pieces of legislation are looked at, contradictions appear and evidence of government departments working in silos. For example a child of any age is entitled to a termination of pregnancy, without the consent of their parents. However, if a further medical procedure is required consequent to the termination of pregnancy, then the consent of the parents is required, due to the age of consent for surgery being 18. The same applies to consent for HIV testing.  

Mr Mpumlwana said it seems that the main concern is the criminalisation of children who have consensual sex.

Dr Omar replied that the concern was secondary trauma, because the harsh legal processes of the criminal justice system have the effect of exposing children to undue mental stress, leading to problems such as post-traumatic stress or depression. Therefore, the criminal justice system causes more damage to the child.

Mr Mpumlwana wanted to know if a distinction is being made between a child who has consented to sex and one which had not. If this is the case, he asked if Dr Omar was aware of the difficulties for the prosecution associated with having to prove consent and how should this be dealt with. Secondly, there could pressure on a girl who had not in fact consented, to say they had consented. He also asked for examples of the compelling circumstances which would warrant a court ordering inclusion in the sex offenders register.

The Chairperson said he did not want to interfere with the Mr Mpumlwana’s line of questioning, but it dealt with rules around burdens of proof in court which Dr Omar may not be privy to. He turned over to her, with the proviso that she need not answer where she did not have the requisite competency.

Dr Omar said there are assessment procedures to establish the veracity of a child’s evidence or their credibility, whether they be victims or offenders. Besides the forensic medical assessment, there are forensic assessments to determine the child’s reliability as a witness. These assessments are conducted and presented to the court and the triers of fact make the decision on the child’s evidence. She noted that the TBC also provides socio-psycho support to both the victim and offender.

Mr B Bongo (ANC) thanked TBC for introducing the matter in the way which they have. He felt that there was a lack of clear policy proposals on how the legislature is to take the matter forward. He understood that the intention was not to promote sexual activity among children, but rather to decriminalise it where there is consent.

The Chairperson said it was clear that society and government departments should do their work together. Backed with TBC’s expertise, he was confident that the matter would move forward.

Resources Aimed at Prevention of Child Abuse and Neglect
Ms Christina Nomdo, Executive Director Resources Aimed at Prevention of Child Abuse and Neglect (RAPCAN), said her submission picks up where the above submission ends: centring around the responsibility in society of parents, adult care givers (where there are no parents), FBOs, community organisations and the state. In the course of dealing with this matter she has come across people giving practical examples of the society in which she would like to live in and have her children grow up. She spoke to an example of a middle aged woman who felt that it was critical to properly enable her children to make good decisions was their sexuality. She therefore identified a nurse in her community, who she would invite to dinner time conversations with her children to mutually inform, across generations, the value system informing their life choices. Another example was a married father, who talks about the most important part of sexuality, love and care, with his sons daily. This is the type of society in which she wished to live, where adults and the adult duty-bearers for children’s rights take their place.

Ms Nomdo said RAPCAN had been fighting for children’s rights for the past 25 years and was instrumental in the child witness project is the reason that the Sexual Offences Act exists and is a project which gives support to children who have been sexually abused by adults. This is also the reason for the existence of an age of consent. Its purpose is to make sure adults know when it is inappropriate to sexually interfere with children and protect children from malicious adults. The Constitutional Court judgement was an eye-opener, because it has shown that well-meaning adults can go too far in the quest to protect children, in fact inflicting harm upon them.

As the second applicant in the case, RAPCAN challenged sections of the law which criminalised consensual sexual conduct between children, because it believed there was the potential to devastate family life. The law also separated children from the adult care givers in their lives, because if the care givers knew they were experimenting sexually they would be obliged to report the child. The CC held that the children’s rights to dignity were infringed upon by the criminalisation, because the criminal justice system is not a pleasant place even for victims. There is a need for productive inter-generational relationships, not based entirely on adult control. We must be alive to the realities of our societies, meaning that we cannot withhold sexuality information from adolescents, because this could be harmful to their development. It has to be recognised that sexuality is part of life and sexuality cannot simply be equated with sex, because there is more to sexuality than intercourse.

There are prolific number of researchers who have done work on adolescent sexuality in contemporary South Africa which contributed to the evidence presented to the CC. This research supports her point that adolescents require information from non-judgemental and caring adults to inform their choices. The researchers spoke openly with adolescents about their sexuality, trying to discern what their concerns and questions were and how best to address these. She quoted an extract: “adolescents appreciated openly discussing intimate relationships, sex and peer culture; in a non-judgemental and non-punitive fashion. It gave them the opportunity to reflect on their choices and behaviour; and they felt it would be useful for their peers to have the same experience”. RAPCAN has developed sexual decision-making models for programmes in high schools. Ms Nomdo had facilitated such a programme and she had seen that children are hungry for open dialogue with adults who would guide and support them. Adolescents should be empowered by adults to make independent decisions about sexuality. A judgment of Sachs J emphasised the importance of children’s developmental autonomy, “individually and collectively all children have the right to express themselves as independent social beings; to have their own laughter and sorrow, play, imagine and explore in their own way. To themselves get to understand their bodies, minds and emotions, above all to learn as they grow how they should conduct themselves and make choices in the wide and moral world of adulthood”. Ms Nomdo felt it was from this basis that Khampepe J in the CC was able to recognise that the criminal prohibition of consensual intimate relations intrudes on the core of children’s privacy. If it is said South Africa is a rights-orientated society, then these must extend to children.

Ms Nomdo said if criminalisation is not an option, then what is the alternative? Her suggestion would be guidance and support, this may not come through this Committee, but could come through collaboration with other Committees such as Social Development and Health. It may come through the National Adolescent Sexual and Reproductive Health Rights Framework, passed by Cabinet in February 2015 which states that adolescent sexual health needs to be looked into. She therefore submitted that the Committee’s role is to help guide children, by helping the primary caregivers to guide their morality and sexual choices.

The Chairperson said the role of parents and society cannot be replaced through the law. As the law must be enforced, in this case through prosecution, which leads to incarceration which in turn leads to other complications.

Mr Swart appreciated Ms Nomdo’s passion for adolescent rights, but the question was how do we protect children from themselves, where their cognitive development has not reached the stage where they understand the full ramifications of full penetrative sex. The message sent out by the judgement needs to be controlled, because it should not be thought that it is now fine for adolescents to simply engage in sex. Children not only need to be protected from themselves, but also from other predatory children. Further, at present a child under the age of 16 cannot consent due to criminalisation; should there be an abuse situation where a 15 year old rapes a 12 year old, there is no question of consent. Inevitably in such cases the accused will claim there was consent and this is the issue of disproving consent which Mr Mpumlwana alluded to. He appreciated the point about adolescents not seeking assistance, because of criminalisation. Therefore a balance must be struck. While society must take responsibility, it must be kept in mind that we live in a dysfunctional society with 1.5 million orphans. He spoke to the written submission which argues that decriminalising adolescent sex within their peer group would not have the effect of lowering the age of consent and he asked if RAPCAN would support a two-year close-in-age defence. It is important to bear in mind that there are many people in South Africa who would disagree with the expert evidence relied on in the judgment which argues that it is not unusual or necessarily unhealthy for adolescents to engage in sexual behaviour. His concern was not hugging or kissing, but full penetrative sex of either a hetero or homosexual nature. He argued that many people would disagree with the opinion of the experts, given the high rates of teenage pregnancy and sexually transmitted diseases. The question is how to balance these two interests.

The Chairperson asked whether Mr Swart, having said society is dysfunctional, meant that due to this dysfunction, its responsibilities must be borne by the criminal justice system.

Mr Swart clarified that there are many dysfunctional families in South Africa and therefore there is a legitimate need for the state to be involved in social development and the state cannot simply not be involved.

Mr B Bongo (ANC) said he does not think people need to be overly emotional about the matter at hand, what is needed is to take on the input of a variety of stakeholders. Part of the legislature’s responsibility is to build a caring society. This starts with society itself recognising that there are these challenges. His general critique was that the NGOs were not putting forward concrete policy proposals. He felt it necessary for the Committee to engage with the Departments of Health and Social Development, to formulate a programme to deal with the problem. So that when society is approached, an organised stance is presented by government. There is a need to take into account the reality on the ground, with child pregnancy occurring in rural areas and a lack of education on the matter. The Committee should take the matter forward together with society and other parts of government.

Mr Mpumlwana agreed that this was a difficult problem to solve. It depends a lot on cultural backgrounds, because in African culture, the community would deal with matter, rather than going to court. In an individual society, such as in cities there may need to be a deterrent. What form this is to take, is not certain and perhaps parents need to be directly involved.

The Chairperson picked up on Mr Bongo’s point, that this is a societal issue and perhaps a summit bringing together even more role-players than present is necessary. For example the queen mothers from traditional communities, who are not represented in the submission, could share their experiences about dealing with this matter. Talking of rural children as especially vulnerable could not be as valid as initially thought, because traditional communities have ways of dealing with these types of situations.

Mr M Maila (ANC) agreed that this was a societal matter. What he was pleased with was the clarity brought by the submissions around the dropping of the age of consent from 16 to 12. This was argued for in several other submissions, but it was clear that the age of consent was remaining at 16. As much as this is a societal matter, at hand is the need to develop legislation to amend the defects in the present law.

The Chairperson said South Africans as early as the 1980s have established that the best interests of the child must be the guiding light. He agreed with Mr Maila about the age of consent remaining intact. Further, he agreed with the point that while having children engaging in sex is problematic, putting them through the criminal justice system is even more so.

Ms C Pilane-Majake (ANC) welcomed the submissions thus far and felt they were helpful in understanding the requirements of the judgement, specifically what needs to be looked at is the best interests of the child. There are various pieces of legislation which are aimed at child protection and she had picked up the point that there is a need to ensure that these efforts are coordinated. Mr Swart is concerned about the close-in-age defence and she wanted comment from the presenters on this. Around issues of guidance, there needs to be a balance, so that where relying on education is insufficient, the law must be used, and how this is to be done while properly protecting the children.

Ms Nomdo said she agreed with many of the Members who wish to re-imagine society, because this was her wish as well, specifically a society free from violence against children and free from issues which cloud the child’s best interest. When one starts to talk of children as predators, then one must carefully consider the societal indictment. It must be remembered that children are inheriting a society that adults have created and they are forced to navigate this society. The close-in-age defence ought apply to cases with children aged 15 to 17, as they are in the same peer group and it is unwise to place barriers to their interaction and relationship-building with each other. What is needed is to mentor and guide children in this, to foster healthy adult relationships, free of abuse and coercion, especially in relation to sex.

Mr Swart said it should be conceded that there are children who are sexual predators and from his experience as a prosecutor he has seen children committing horrendous offences. It is due to society, but it is also due to their choices. He did not understand why the close-in-age defence ought to apply to children aged 15, 16 and 17, but not to those younger. Unless it is argued that otherwise the amendment would not comply with the judgement.

Justice Alliance South Africa
Mr John Smyth, President: Justice Alliance South Africa (JASA), started by stating that JASA is an alliance of individuals, corporations and trusts concerned with promoting the Judeo-Christian values in Parliament and the courts. He thanked the Committee for setting aside four days for public hearings. The large number of submissions was indicative of the disquiet among a high proportion of citizens about the ‘straitjacket’ in which the CC has placed Parliament in this matter. He fully understood the restrictions imposed by the CC judgement and now it was a matter of what could be added. He felt there was an issue of sovereignty and separation of powers. It was regrettable that the CC seems to have lost sight of the grassroots issue, that all parents know that children want and need boundaries. It may be thinking up in the clouds to think only of the ideal family where the parents and teachers will do the educating. On the sovereignty of Parliament, he suggested that the pity of the case was that the CC not only found that the offences breached the rights to privacy and dignity; but further that it itself conducted the section 36 limitations analysis. He submitted that in such a case it would be better if the CC made the decision about the breach of rights, but left it to Parliament to conduct the limitations exercise and determine what is reasonable and justifiable in an open and democratic society. This is because Parliament is in a better position to determine this, than the CC. However, one does need to keep in mind that the legislation is for a society which is not utopian and applies to the poorest family, as well as ones which have access to a variety of social services.

The gist of the submission was that there ought to be some form of deterrence added to the Bill as drafted. It would allow parents or teachers to say to children that engaging in sexual behaviour will land the caregiver in trouble, as it is no longer an option for the child to get into trouble. The matter of morality has been touched on and this ought to be taken into account by Parliament. He referred to the Sachs J’s judgement in the Fourie case which indicated that “the secular and the sacred must co-exist in South Africa”. An institution primarily concerned with democracy ought to take into account morality and he felt it incumbent upon the Committee to do so. He agreed fully with what has been said about kissing and the like. A point which was not in the written submission was that JASA had placed before the CC comparative legislation from the United Kingdom, New Zealand and the United States which indicates that most western countries have some form of criminal limitation on consensual sex between children under the age of 16. In light of the CC decision, South Africa is now far more libertarian than any other western democracy in this area.

Mr Smyth turning to the submission itself he spoke to the problem of predatory children, particularly the need to protect especially vulnerable children, such as disabled children who may not understand that they are able to say no and certainly would not understand informed consent. Making reference to traditional African law, he believed that the protection of virginity is still a high priority. On public opinion, he said when the matter was before the courts JASA was involved as amicus curiae. He had appeared on several media platforms and the responses received had overwhelmingly been opposed to the decriminalisation. While this cannot be undone, it makes it more incumbent on the Committee to include a form of deterrent. The submission included a piece of evidence, which had been submitted to the CC that seemingly ignored it as it was not mentioned in the judgement. This was the affidavit of Mr David de Korte, principal of Camps Bay High School. Mr de Korte had rallied other principals with whom he was in contact to sign a petition and he says in his affidavit that there was no dissent from the proposition that removing the sanctions “would make [his] job a nightmare”.

Turning to paragraph six, Mr Smyth spoke to JASA’s proposed amendment to raise the floor for no possible consent from 12 to at least 13. This would reflect the primary school/secondary school division, thereby cutting out the “thousands of primary school girls who get pregnant every year and the abortions which almost inevitably follow”. He urged the Committee to give this proposal careful consideration. The definition of sexual violation should be amended to exclude kissing and he felt this was not clear in the Bill as drafted. Consideration should be given to making use of other legislation, such as the South African Schools Act which criminalises a parent preventing a child from attending school without a good reason, to criminalise persistent acceptance by parents of penetrative sex by their children. Finally, he suggested adopting something along the lines of the Children’s Act which would require a person who was aware of a child engaging in penetrative sex to report such to a designated child protection organisation or the provincial department of social development. This he argued would be a deterrent, because parents and teachers would be under an obligation to report it to an appropriate formal institution.

The Chairperson disagreed with the submission that the sovereignty of Parliament has been violated by the judgement of the CC, because Parliament is subject to judicial review by the CC and unlike in Britain South Africa does not subscribe to the doctrine of parliamentary supremacy. Also, while 80% of South Africans are spiritual, South Africa is a secular state, but it does not ignore the fact that there are things which are sacred and this is why FBOs have been invited to make submissions.

Ms M Mothapo (ANC) thanked Mr Smyth for referring to traditional African law, where the intention is to uphold morals and values. Mr Smyth had made reference to the South African Schools Act, which places punitive measures on a parent who willing keeps their child out of school. She noted that he differed from the previous two speakers on the lower age for consent and asked whether moving it up to 13 would really make a difference.

Mr Smyth replied that if no child under 13 could give consent then statutory rape would be a major deterrent, particularly for primary school children. He would prefer it to be higher, but having it at 13 would make a significant difference. Mr Smyth said “also in respect of the homosexual aspect of this, because we know that homosexuals are very keen to draw children in at a very young age”.

Mr W Horn (DA) on the increasing of the lower age for consent, said the way he understood the initial Act, the Bill and the CC judgement is that it dealt with adolescents and the age group between 12 and 16 is internationally regarded as adolescence. Apart from the point of view of principals and parents, is there any scientific evidence to justify changing this age bracket for adolescents, aside from children aged 13 and under still being in primary school. Secondly, on the proposal that parents who are aware of sexual interaction between adolescents should be guilty of an offence and noting that Mr Smyth terms the parameters dictated by the CC judgement a straitjacket, would it be fair to allow adolescents the ability to engage in consensual sex, but criminalise the knowledge of the parents. To his mind this would also be unconstitutional, given the parent’s constitutional rights.

Mr Smyth replied that when a child is truant, this is not a criminal offence for the child. He did not feel it correct to extend the judgement’s indictment of criminalisation of a child to the parents aware of the activity.

Mr Horn asked about scientific evidence for increasing the lower age for consent, but Mr Smyth pleaded common sense – in that most 13 year olds are not in a position to give consent or make sensible choices.

Mr Bongo reiterated that the Constitutional Court was within its rights to pronounce on the constitutionality and prescribe minimum steps to be taken. He also encouraged the use of an objective mindset in dealing with the matter, because subjectivity could lead to people wanting to protect those close to themselves. He agreed with Mr Horn on the conceptualisation of adolescence, at least in South Africa. He asked whether Mr Smyth had conducted research into other relevant pieces of legislation, such as those dealing with access to contraceptives to inform the proposal that the lower age for consent be raised to 13. He felt the proposal for an offence to be created directed at parents indicated that Mr Smyth “did not generally understand what we are dealing with”, because at hand is the decriminalisation of consensual sex between adolescents and in the main the role of the parents ought to be one of guidance and education. He asked if Mr Smyth had considered the additional burden on Correctional Services and the state, created by the proposed offence.

Mr Smyth did not want to withdraw the submission that parents should be open to liability. It may be that parents are rarely prosecuted, but the point of the criminalisation of parent’s acceptance was to provide a deterrent. The common ground was that the law should not encourage adolescent sex, if this is the case then Parliament ought to be in the position to introduce amendments towards this end or to amend the Children’s Act. His concern was to propose to Members the possibility of other means to discourage adolescent sex, without making the children criminally liable.

Mr Swart said it was a concern that the Constitutional Court did not deal with the evidence presented by JASA in the judgement. He understood that in the High Court the evidence was dealt with. In light of the affidavit and the potential impact on schools, perhaps engagement with the Department of Basic Education would be advisable. He agreed with the proposal that the Department of Social Development become involved and he felt this resonated with the previous two submissions where it was urged that some form of intervention be created. There needed to be a mechanism to deal with children who on a sustained basis engage in promiscuous behaviour, without infringing on their rights. A previous speaker had mentioned an assessment being conducted to determine whether a child is a child in need of care under the Child Justice Act and perhaps research into Scottish law where the child is referred to a children’s enquiry, rather than a criminal sanction. This would be within the parameters of the judgement and provide an option where a caregiver is concerned, yet unable to control a child.

The Chairperson supported Mr Swart’s suggestion that the Departments of Basic Education, Social Development and Justice and Constitutional Development have joint sessions to avoid isolated efforts, with the aid of public input.

Mr Maila wanted clarity on the recommendation that there be an exception for children married under South African law. Would this allow such children to engage in sexual penetration?

Mr Smyth said that under certain conditions a child may get married at 12 and “of course if they are permitted to marry at 12, they must be permitted to have sexual intercourse”.

Ms Pilane-Majake said it would be difficult to entertain morality during this democratic process, because the variety of moral standpoints and cultures in South Africa, which are constitutionally protected, makes it difficult to cater for all moralities. On the raising of the age to 13 years, she said the judgement had recommended the age of 12 years.

Mr Smyth replied that the question of the appropriate lower age was not dealt with in the judgement, even in obiter dictum, and therefore he submitted it would be open to Parliament to amend this aspect. On morality, he submitted that where there was an overwhelming consensus on the moral question that it would again be open to Parliament to consider morality.

The Chairperson warned that a moral debate should not be opened, nor should it be said that the Committee is not concerned with morality. Rather a neutral term such as value-centred society should be used, to which the variety of moral and cultural views have contributed.

Commission for Gender Equality (CGE) submission
Ms Janine Hicks, CGE Commissioner, said that the CGE unequivocally supports the Bill and the decriminalisation of consensual sexual acts between adolescents, is the right step to take. The purpose of the principal Act was to protect children from sexual abuse and concern is shared with other organisations that the criminalisation has had a devastating impact on young people, resulting in a contradiction in law impacting on children. The CGE understands the challenge facing the Committee in balancing and protecting the rights and best interests of the child. The Bill does this and the CGE has proposed some slight amendments to tighten up the wording. The CGE submits that dealing with consensual sexual activity between adolescents is the remit of policy intervention by the Departments of Social Development, Health and Education. It also requires the intervention of parents and caregivers.

Adv Kamraj  Anirudhra, CGE Parliamentary Officer, said most of the discussion centres around clauses 2, 3, 7 and 8. The test for when the moral convictions have become legal convictions of society was set by the Appellate Division in 1975. The legislature is bound to look to and protect the moral convictions of society through legislation when that moral conviction has escalated to a legal conviction. In terms of SA Personal Lawyers Association v the Special Investigating Unit, the legislature is bound to legislate consequent to a judgement, but may go beyond the scope of the judgment. Therefore, the Committee has wide powers in determining the contents of the legislation. The problem with clause 2 and 3 is that there is a complete decriminalisation of the ages between 12 and 16, however between the ages of 15 and 17 there must be less than a two year age gap. The way the clause is constructed there is ambiguity, potentially violating the requirement of legality. The CGE feels that as adolescent sex is a social issue, it should be left to the social institutions to deal with the matter, because while the clause may pass a minimum threshold test, it would constitute unfair discrimination between two age groups which are both still children. This could arise where a 16 year old engages in consensual sexual activities with a 13 year old, because they would still be liable to be convicted under section 15 of the Sexual Offences Act.

CGE supports clause 4 of the Amendment Bill.

The proposed amendment in clause 7 is not supported by the CGE, because the best interests of the child cannot be taken into account where there is automatic inclusion in the Sexual Offences Register. The objection would fall away if the recommendation regarding clauses 2 and 3 are implemented.

Mr Bongo said he was unsure whether the CGE really supports the amendments and while it has pointed out objections, they have not provided alternative options, which would be more productive.

Adv Anirudhra replied that the concrete proposal would be that there are social institutions, such as those involved in child guidance and counselling, which can deal with the problem far better than criminalisation of adolescent consensual sexual activity. There could be various reasons for the occurrence including maladjustment and poor remodelling.

Mr Mpumlwana asked post-decriminalisation, how are vulnerable children to be protected and what exactly will the social institutions do to deal with the matter?

The Chairperson suggested that if the presenters wish to amplify their proposals, they can make written proposals to the Committee. Further, all upcoming submissions would be heard first with Members’ questions or comments dealt with afterwards.

Family Policy Institute (FPI) submission
Mr Errol Naidoo, FPI Chief Executive Officer, said as the full written submission had been forwarded, he would speak only to two aspects: (1) the vital important role of the family in raising, nurturing and protecting children; and (2) the role of government to strengthen and undergird the family in its critical role as society’s most fundamental institution. The FPI believes family is the most fundamental institution of society and therefore deserves the support of government. The family must be the central focus of government’s social policy development. Research overwhelmingly indicates that the two-parent biological family is the best environment for raising, nurturing and guiding children. The breakdown of the family in South Africa therefore, presents the single greatest threat to the health, stability and overall welfare of children in society. The United Nations Human Rights Committee adopted a resolution in 2014 that declares: “recognising that the family, as the natural and fundamental group unit of society, has the primary responsibility for the nurturing and protection of children and that children for the full and harmonious development of their personalities should grow up in a family environment and in an atmosphere of happiness, love and understanding”. South Africa is a signatory to this resolution. Governments should therefore not usurp the legitimate authority of parents in the family, but must do everything to support, strengthen and protect the role of parents to fulfil their responsibilities to their children. The alarming rise in premature sexual activity between children at an increasingly younger age, is a tragic indication of family dysfunction in South Africa, as well as a timely warning of growing parental neglect, the collapse of traditional family structures and the spiritual and moral degeneration of greater society. The current family landscape is disturbing.

Research conducted by the South African Race Relations Institute indicates that only 35% of children live with both biological parents, 40% of children live with their mother only, 3% live with their father only and 23% live with neither parent. This means that 66% of children in South Africa do not live with both parents, placing them at significant disadvantage. The total number of orphans is 3.94 million, AIDS orphans number 1.4 million and there are 98 000 child-headed households in South Africa. In addition, teen pregnancy is on the rise, with a 2011 report by the Kwa-Zulu Natal MEC for Education indicating that there were 17 260 teen pregnancies in that province alone in a single year. Children function best in a loving, stable family environment, the consequences of the disintegration of family life in South Africa has been especially damaging to vulnerable children in South Africa. Many children who come from dysfunction homes, where the father figure is largely absent are prone to crime, anti-social behaviour, alcohol and drug addiction, teen pregnancies, dropping out of school, psychological and emotional problems and low self-esteem. Society is only as strong as the family, consequently it is in society and government’s best interests to strengthen, protect and promote a healthy, stable and loving family life. Families are the building blocks of society. When they weaken and disintegrate, our entire social structure is at risk of collapse. Children of today are the future leaders and parents of our nation. As such it is essential that society provide the correct moral foundation to help children develop a healthy and responsible lifestyle. Government and civil society must always act in the best interests of the child, however the best interests of the child means not only protecting them from abuse, exploitation and harm, but also ensuring they fully understand the consequences of bad choices.

Premature sexual activity is one such choice, which vulnerable children need guidance with. The FPI rejects the notion that sexual experimentation or sexual expression by children is a normal part of adolescent development. Children as young as 12 to 16 years old cannot be psychologically and emotionally mature enough to make decisions about sexual activity, nor can they comprehend the long term implications of their decisions. South African law stipulates that teenagers can only vote or obtain a drivers licence at 18 or older. These laws suggest that teens younger than this are not considered matured enough to make important decisions like voting, nor drive a vehicle responsibly. Yet the law declares that children between 12 and 16 possess the psychological and emotional maturity to make sexual choices which could profoundly affect the quality of their lives in a manner much more significant than voting or driving. FPI agrees that children of all ages must not be humiliated, victimised or exploited by the law. The criminal justice system was established to uphold the law, as well as the constitutional rights of all citizens. Besides ensuring that justice is always served the law must also facilitate correction and restoration for offenders. This is why FPI believes simple decriminalisation of consensual adolescent sex will not alleviate or stop the long term damage suffered by children. Sexual experimentation or expression by children is surely considered taboo under any regime; it is neither healthy nor affirming. It is however a tragic consequence of a highly sexualised culture, driven by a sex obsessed and saturated popular media. For the last decade the news media has been reporting that a growing number of children, some as young as eight, have been exposed to internet pornography. Children with smart phones are increasingly susceptible to hardcore pornography. Many young children exposed to internet pornography, subsequently produce their own videos, considered child pornography which they share with friends.

Parliament must also consider the possibility that when consensual sex between adolescents is decriminalised the filming and distribution of such acts may be deemed legal and acceptable. Thus the law would inadvertently provide child pornographers a legal loophole. As a result of the wide availability and easy accessibility of online pornography in South Africa, a growing number of children are exposed to images which their growing minds cannot fully comprehend. The tragic incidence of child on child sexual abuse has increased alarmingly, due to children being exposed to sexually explicit media, that appears to normalise deviant sexual practices. As a consequence the decriminalisation of consensual sexual activity between adolescents will serve only to exacerbate this trend. Children in South Africa are highly sexualised, this deliberate sexualisation of children at increasingly younger ages is devastating to the family and to society.

FPI encourages Parliament to follow the lead of countries like the United Kingdom and Iceland, by prohibiting access to pornography on the internet and other media to protect vulnerable children from premature exposure. A nation is judged by the way in which it protects the most vulnerable members of its society, the abuse and exploitation of vulnerable children is at an all-time high in South Africa. The rape and sexual abuse of children, including babies as young as four months old, is increasingly reported. Child abuse, especially sexual abuse, is another clear indication that South Africa is not a normal healthy society. Sexual perversion and sexually deviant behaviour are seemingly the norm. The intolerably high rates of rape, sexual abuse and exploitation of women are another case in point that South African society does not respect or protect women and children. Government, along with civil society, is responsible for reversing this trend. The key to normalising a society with a healthy outlook on sex and sexual identity is the restoration of the family unit. Healthy and stable families are more likely to produce healthy and stable individuals. Just as dysfunctional families are likely to produce dysfunctional individuals. Children are first taught sound moral values in the family environment. When the family structure collapses and parental authority is absent, children typically learn their life skills on the street. The alarming moral breakdown in South African society is an indication that street values have replaced family values in many people’s lives. Government must then use the criminal justice system to engender respect for the law and restore order to an increasingly lawless society. Normalising and making acceptable consensual sex between adolescents weakens the family structure, because it undermines parental authority. The potential harm to children involved in premature sexual activity are varied. Contracting HIV/AIDs and other STDs is always a clear and present danger for teens in a society with some of the highest rates of sexually transmitted infection rates in the world. FPI therefore encourages Parliament to use every legislative means available to protect children from abuse, harm and every other form of exploitation. It also urges Parliament to utilise the law to protect children from making bad choices, especially those which are detrimental to their health and future wellbeing. Children must be encouraged and persuaded to delay sexual activity until they are emotionally and psychologically matured to understand the implications of their decisions. The delay of sexual expression will also help to focus children’s minds on things such as obtaining a good education and positively contributing to society. FPI suggests Parliament increase the age of consent to 18, this would support other legislation recognising that children are only mature enough to make decisions about health, governance and future at 18. FPI also urges Parliament to legislate some form of intervention by the Department of Social Development, because as adults we must recognise that when children as young as 12 to 16 engage in sexual activity, it is an indication of a lack of parental supervision and/or family breakdown. Children engaging in casual sex at such ages need help and support from government and civil society, not affirmation from the criminal justice system that their conduct is normal and acceptable.

South African Catholic Bishops Conference (SACBC) submission
Adv Mike Pothier, Research Coordinator: SACBC Parliamentary Liaison Office, endorsed the Chairperson’s indication that this was a valuable example of participatory democracy in action. Also, what the Chairperson said about the doctrine of the separation of powers, as this is being put into effect presently.

Adv Pothier said the need for these amendments arose from a CC judgement and therefore it is essential that the amendments give effect to the findings of the court. The SACBC’s concern was that the Bill did not address important aspects of the judgement. He said what is at the heart of the matter is the sanctions imposed for certain types of sexual conduct by children, rather than a matter of lowering the age of consent. There are obvious links between the two, but it confuses the issue to cast this as a matter of ‘fiddling’ with the age of consent. The CC clearly stated that the problem with the Sexual Offences Act as it stands is that it imposes criminal liability on adolescents for engaging in consensual sexual conduct and this is what must be addressed.

Adv Pothier said the key difficulty is that the way in which the amendments have been drafted leaves open the potential for criminal prosecution of children. If one looks at the proposed new section 15, which reads “a person who commits an act of sexual penetration with a child… will be guilty of an offence, unless”. It therefore proceeds on the basis of setting up exclusions. These are that if the people were over the age of 12, but under the age of 16 or 16 or 17, but the age difference between the people was not more than two years. If one of the children engaging in sexual conduct is 11, then the potential for prosecution arises, because they do not fall within the exclusions and the Child Justice Act makes their incapacity a rebuttable presumption. It may be highly unlikely that an 11 year old child who has sexual penetration with an adolescent will be charged and shown to have criminal capacity, however, it is not impossible. It is SACBC’s submission that Parliament take the opportunity to completely exclude the potential entirely. This prosecution is slightly more likely, because while the written permission of a Director of Public Prosecutions would be required to prosecute where a person who is 16 or 17 has sex with an adolescent and the age difference is more than two years; this would not apply where one of the parties is 11. The easiest way to deal with these gaps would be to replace “12 years or older” with “ten years or older” in the proposed section 15(1)(a). Persons under ten cannot be criminally liable as they are irrefutably presumed to lack criminal capacity and under the circumstances of the Bill, if so amended, would ensure that persons between ten and 16 would not be prosecuted for engaging in consensual sexual activity.

Adv Pothier said there was also a problem with the two year close-in-age defence, because it will serve well where someone who is 16 or 17 has sex with someone who is 14 or 15. However, criminal prosecution would remain a potential where someone who is 16 has sex with someone younger than 14. He did not feel this complied with what the court had envisioned. It must be remembered that the court spoke about adolescents and the Bill and the Sexual Offences Act defines children at certain ages and deals with them differently. One can envision a situation where a 16 year old has sex with a 13 year old and ends up being prosecuted, leading to a CC appeal and there being no reason why the CC would rule any differently.

Adv Pothier referred to the CGE submission which argued that to treat 16 and 17 year olds differently to younger teenagers would be unfair discrimination. He said this was not necessarily the case, because there are examples of similar differential treatment, such as in minimum sentencing legislation. It is not a question of finding a ‘magic age’ at which sexual activity is condoned, but rather as the CC saw it – dealing adolescents as a group who must be treated consistently. There has also been an argument that the prosecutorial discretion saves the provisions from unconstitutionality, however the court explicitly stated that a prosecutorial discretion does not save an otherwise unconstitutional provision. Parliament should never knowingly pass unconstitutional provisions, which he felt would happen if the proposed sections 15 and 16 were passed.

Adv Pothier said if criminal sanctions and the criminal law are not the appropriate means for dealing with adolescent sexual activity, then what is and what ought civil society expect Parliament to do. He suggested that the answer lies in statutes such as the Children’s Act and other statutes where room could be made for interventions of various kinds, when inappropriate behaviour by children is discovered. It is open to Parliament and the SACBC would encourage it to consider ways in which authorities could be empowered to intervene in cases of inappropriate sexual activity, because it is important to be conscious of the gravity of the problem. In sum the answer to not using the criminal law to regulate this behaviour is that there are more appropriate branches of the law to use to control such behaviour.

Foundation Nation Restoration (FNR) submission
Ms Hillary-Jane Solomon, FNR Administrator, thanked the Committee for the opportunity to let the Committee and society generally know that “the stewardship principle that has been given to us by the most high is very important”. It is important for indigenous people to not only respond to issues of land or language, but also culture. FNR represents and has worked with many tribal and customary structures, including sitting on the National Khoi-san Council, to ensure that indigenous people are heard. FNR’s caption is “biblically restoring Southern Africa’s foundation nation”. This means that FNR is a steward for the land and engages with various race groupings to try and find solutions for problems which haunt the nation.

The FNR categorically states that it opposes the amendment, but also would not like to have children criminalised. Continuing on the FNR’s background she said the FNR was established in 2011, for the specific purpose of addressing the destiny of indigenous peoples from a biblical perspective. While the political landscape changed following democracy, things have stayed the same because values have ‘gone down’. The FNR conducts research dialogues and engages in community impact meetings, where it shares what has been found in the research dialogues, ending off with a convocation to look back at how the community as a foundation nation and the rest of society understands biblical principles. Ms Solomon said “Biblical principles can be accepted or not, but the universal principle thereof cuts across the board”. The FNR in a nutshell is concerned with the spiritual, looking closely at foundation nations and the stewardship principle and further, with social upliftment, working with social institutions to combat the social scourge in townships. FNR also deals with the economic aspect, in the knowledge that the spiritual, social and economic cannot be separated.

Ms Solomon turned to the definition of stewardship, to ensure understanding of this principle which is related to FNR. It is an ethic that embodies the responsible management of resources; a steward is someone who handles affairs on behalf of someone else. In this regard FNR states that “we are stewards, not owners and have been given this role by the most high”.

Ms Solomon stated that FNR supports the idea of a summit or indaba, because this will give a greater platform for people to express their views on what has come out of the CC. Another issue to be looked at is moral law versus civil law. Further, as mentioned earlier the situation is that adults have given children this type of environment to live in, which they cannot cope with. It must be questioned what is being transformed from abnormal to acceptable, if the amendment is endorsed. The FNR wanted to remind the Committee that it is a custodian for the Constitution, “but where the Constitution wants to violate…and supersede the word of god, we want to say: be cautious”. As there are universal laws in the scripture which say that if x is done there is a blessing, but if something else is done, there will be a consequence. She then quoted Matthew verse 18: “if anyone should cause one of these little ones to lose his faith in me, it would better for that person to have a large millstone tied around his neck and be drowned in the deep sea”. The FNR requests that most serious consideration be given in discussing the merits and consequences of such an amendment and how best to protect children. A child in the proposed age group does not have the maturity. It also puts a question mark on the basis upon which the judgment was given. If section 28 is directed at persons under the age of 18, is the amendment not a constitutional violation in itself. Has the potential impact of the amendment in the child trafficking domain been considered, because it would mean that children between the ages of 12 and 16 would be able to engage in consensual sex.

She reiterated that the FNR does not support the Bill and would like the constitutional definition of a child to be consistently applied. Further, the potentially negative impact ought to be assessed for its economic impact. Just as the number of students who begin grade one is tracked to gauge how many pupils complete school, compared with the numbers who drop out. It would be a good task to give to Statistics South Africa. Further, the emotional and psychological impact on these children who are not cognitively developed could result in the Department of Social Development being under strain. FNR recommends that an inter-departmental committee be set up to look at all the factors which impact vulnerable children. Lastly, is this the legacy which ought to be left for the leaders of tomorrow? These types of decisions can have a long term impact on the gross domestic product. She noted that children must not be given rights, without responsibilities. Children having already inherited broken homes and to lower the age for consensual sex is not an amendment which would benefit anyone.

Ms Mothapo asked the SACBC why a religious institution was proposing lowering the minimum age for consent to ten years. Further, with incidents such as the rape of four month olds would this proposal not aggravate the situation and perpetuate the abuse of children. She then asked FNR how the organisation associates with other structures such as the Moral Regeneration Movement. Further, she asked for substance to be given to the FNR’s vehement opposition to the Bill.

Adv Pothier replied that the Bill is directed at situations where children engage in consensual sexual activity with each other and it is not about situations of rape or where a party to the conduct is an adult. The normal laws around rape and statutory rape still apply in the latter situations. The proposal is about what the best consequences would be where children engage in consensual sexual activity. More specifically, the answer to child abuse is not convicting other children.

Mr Maila said none of the submissions dispute the need for further dialogue and support the proposal for a summit. On the FNR submission, he said it seems that the FNR feels as though the Constitution is not sufficiently protecting children, but he emphasised that the Bill of Rights protects children. Further, where the FNR opposes the Bill it does not present amiable alternatives and he found the submission lacking in this respect.

The Chairperson clarified that on the summit, that the Committee was not indicating that its response to the CC’s judgement, was that a summit is required. Rather, there are other, broader issues which must still be dealt with and this would be the agenda of such a summit.

Mr Swart thanked FNR for putting the biblical standard out there, because many South Africans adhere to this and it is important to hear. He asked about other societal interventions, with the FNR having alluded to others in government having a role to play in preventing adolescent sexual activity. To the FPI, he asked what role do they play in strengthening the family unit and what further role could be played in teaching families about healthy sexual values.

The Chairperson said he had read about the National Interfaith Council of South Africa, promoting the move from advocacy to action. Specifically, identifying wrongs is insufficient and action should be taken to address societal problems. He noted that South Africa is a multi-faith society and it would be helpful if FBOs could on their own, on an interfaith basis engage to find a common ground. As, if all the individual FBOs were to present, the Committee’s process would be stalled.

Ms Solomon replied that the FNR associates with traditional structures and the interaction is generally centred around spirituality, although not necessarily religion. To Mr Maila, she said that the FNR understands that the Constitution is there, however when it is in direct violation of the scripture which its members choose to apply they will question it, which is their right in a democratic society. To Mr Swart, she said that the proposals for specific interventions would be sent to the Committee, but that remediation programmes can also form a part of these, where children have already begun to engage in sexual activity.

Mr Naidoo replied to Mr Swart saying that the FPI uses extensive media to educate young people and parents. A lot goes through Christian media, but also through mainstream media. This is all in pursuit of publicising the philosophy that family units are the bedrock of a stable society and are the best place to protect children. The research FPI has gathered shows that family breakdown is the root cause of the social ills facing South Africa, because where there is no parental education on values, children are prone to learning street values. To emphasise the point, he spoke to an interview he had conducted with a gang leader, who had replied when asked why he did not leave and try to change the lives of his fellow gangsters, that the men in the gang did not have fathers, that he was the gang’s father and his men would be lost without him playing the father figure role. He said he also spoke at churches, schools and universities about the dangers facing the youth in South Africa today. He supported the proposal for a summit, because this would bring together various sectors of the community to find solution to these problems.

The Chairperson declared the meeting adjourned.

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