ConCourt hears child sex case, reserves judgement

Chief Justice Mogoeng Mogoeng questioned on Thursday whether there was a need to criminalise sexual conduct between adolescents.

At a Constitutional Court hearing on the issue, he questioned why authorities did not rather focus on educating children about potential problems related to having sex at a young age.

"I don't know why children should face the police, social workers, prosecutors, magistrates, in order for those issues to be dealt with."

Vincent Maleka SC, for the justice department and National Director of Public Prosecutions, was defending sections 15, 16, and 56(2)(b) of the Sexual Offences Act.

The applicants, the Teddy Bear Clinic and Resources Aimed at the Prevention of Child Abuse and Neglect, want the sections changed, because they believe they criminalise sexual conduct, such as kissing, petting, and penetrative sex between children aged 12 to 16.

This in turn impedes their access to counselling or health care, because if they tell someone about their sexual conduct, that person must report them to police, the organisations argue.

The applicants are only concerned with decriminalising consensual sex between children aged 12 to 16. There is no challenge to the criminalisation of non-consensual sex.

Maleka submitted there had been a failure in parenting in South Africa.

There was widespread concern about the sexual abuse of children. The law was a response to this.

"We must accept our society has failed in parenting. Not every household enjoys parenthood," Maleka said.

A friend of the court, the Justice Alliance SA, said Parliament was in a better position to remedy the issue. The alliance did not support a sexual offences register for consensual sex.

Judgment was reserved.