The provision had previously stipulated that when an individual is convicted of a sexual offence against a child or mentally disabled person, a court was mandated to make an order placing that individual on the National Register for Sex Offenders (the Register). This placement would entail various limitations, such as being forbidden from working with children or conducting business that might involve contact with children or persons with mental disabilities.

The applicant in this instance was aged 14 at the time that he was convicted by the trial court of sexual offences against other children. He was placed on the Register in accordance with section 50(2) of the Sexual Offences Act mentioned above. He was also convicted of assault with intent to do grievous bodily harm for stabbing another child. The trial court sentenced him to five years compulsory residence in a Child and Youth Care Centre and a further three years imprisonment thereafter. For the assault charge, he was given a suspended sentence of six months’ imprisonment. On review, the Western Cape High Court (the High Court) declared section 50(2) of the Sexual Offences Act constitutionally invalid because it unjustifiably infringes on the rights of offenders, whether children or adults. The matter came before the Constitutional Court for confirmation.

The Constitutional Court underlined the contemporary foundations of children’s rights and the best interests of the child principle. Firstly, in considering the best interests of the child, the law should distinguish between adults and children. Section 50(2), with its mandatory inclusion of offenders on the Register, failed to distinguish between adults and children. Secondly, the law must make allowances for an individualised approach to child offenders – accordingly the best interest standard should be flexible since individual circumstances would determine the factors that would secure the best interest of the child. The third principle is that the child must be given appropriate and adequate opportunity to make representations to be heard at every stage of the justice process. Since section 50(2) meant that one is placed on the register automatically, without allowing further representations, once convicted, this infringed the best interest of the child. For these reasons, the Constitutional Court found that the child offenders’ rights in terms of section 28(2) of the Constitution were limited.

The Constitutional Court then considered section 36 of the Constitution which provides for the limitation of certain rights, including children’s rights. When it is justifiable in an open and democratic society, taking into account various factors such as the nature of the right, and the importance of the purpose of the limitation, then rights may be limited. In the limitation of rights, the context and proportionality are key considerations. The Constitutional Court also considered the adverse consequences for children placed on the Register. Child offenders who had completed their sentences would continue to be excluded from certain areas of life, which would have a detrimental effect on their livelihood. This would in turn affect their personal dignity, family life, and ability to pursue a living. The Constitutional Court then stated that child justice intends for offenders to be given the opportunity to be reintegrated into society and that the stigma associated with being placed on an offenders’ Register would doubtless make this difficult. In any event, the Court held, a child’s moral landscape is still capable of being moulded, and as such, the compulsory registration of the child sex offender, regardless of the circumstances, constitutes an infringement of the best-interests principle.

The Court emphasised the seriousness of sexual violence, whether committed by adults or children, in view of the fact that sexual violence deeply threatens a victims’ rights to freedom and security of the person, privacy and dignity. Also, caring for and educating children and persons with mental disabilities is a responsibility that should not be afforded to people who will harm them. These factors served as an important purpose in the limitation of the rights of children convicted of sexual offences. However, there are less restrictive means to achieve the limitation. The placement of convicted offenders on the Register is based on the knowledge that convicted offenders pose a risk to children and persons with mental disabilities. Since this is not always true for children, the automatic inclusion into the Register means that the limitation will not always achieve its purpose for child offenders. There are also less restrictive ways of achieving the aims of the Register. The courts therefore needed greater discretion in deciding on matters affecting children. This discretion would allow for a more individualised approach in order to meet the child’s best interests. As such, concluded the Constitutional Court, the limitation of the right of child offenders has no justification in an open and democratic society.

The importance of this judgment is that it aligns South African law with international law (as mandated by the Constitution), namely the Convention on Children’s Rights, which calls for courts of law to place the best interests of the child as the primary consideration.  The judgment reflects the constitutional court’s consideration of the seriousness of sexual offences within the context of child justice.

By Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights

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