ATC150528: Report of the Portfolio Committee on Justice and Correctional Services on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill [B18 - 2014] (National Assembly – sec 75), dated 27 May 2015:

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill [B18 - 2014] (National Assembly – sec 75), dated 27 May 2015:
 

The Portfolio Committee on Justice and Correctional Services, having considered the subject matter of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill [B 18 – 2014] (National Assembly – sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, agrees with the tagging of the Bill and reports the Bill with Amendments [B18A-2014]. The Democratic Alliance and the African Christian Democratic Party abstained from voting.

 

The Committee wishes to report further, as follows:

 

1. The Bill emanates from two separate judgments of the Constitutional Court in the case of Teddy Bear Clinic for Abused Children and Others v the Minister of Justice and Constitutional Development and Others [2013] ZACC 35 ("the Teddy Bear case") and the case of J v the National Director of Public Prosecutions and Others [2014] ZACC 13 ("the J case").

 

1. In the Teddy Bear case the Constitutional Court determined that sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters Amendment Act, 2007 (Act No. 32 of 2007)(“the Act”), are unconstitutional insofar as they criminalise consensual sexual conduct between adolescents.  In the J case the Court considered the constitutional validity of section 50(2)(a) of the Act, namely the automatic inclusion of the particulars of certain persons in the National Register for Sex Offenders upon conviction of sexual offences under certain circumstances, with specific reference to the "best interest of the child" principle as reflected in section 28(2) of the Constitution.  The Court found that the limitation of the right of child offenders in section 50(2)(a) of the Act is not justified in an open and democratic society.

 

1. The Bill is consequently aimed solely at giving effect to these two judgments.  However, during the public participation process in the Portfolio Committee many submissions received focused on the perceived net result of the Constitutional Court’s judgment in the Teddy Bear case, namely that it brought about a lowering in the age of consent to 12 years.  While the Committee noted that this is not the case, it recognises the concerns that have been expressed by members of the public that the law, not necessarily the criminal law, should reflect the legitimate concerns of society that adolescents should refrain from engaging in consensual sexual conduct prematurely, which may be harmful to them.

 

1. Bearing in mind the time constraints to enact the Bill and accepting that the Bill is aimed primarily at aligning the law with these two judgments, the Committee is of the view that the concerns that have been expressed merit further consideration before reaching final conclusions on any proposed amendments that are aimed at addressing these concerns.

 

1. The Committee therefore recommends that the following aspects, which have been raised in the deliberations of the Committee, be investigated further with the view to promoting a possible Committee Bill as contemplated in the Rules of Parliament:

 

1. An amendment of section 1(3)(d) of the Act in order to broaden the circumstances where an adolescent is incapable in law of consenting to a sexual act, bearing in mind the parameters set by the Constitutional Court in the Teddy Bear case.

 

1. An amendment of section 57 of the Act in order to address any uncertainties which may exist with regard to the age of consent.

 

            Report to be considered.