Western Cape High Court declares part of the Sexual Offences Act unconstitutional

The Constitutional Court will hear an application on Thursday for confirmation of an order granted by the Western Cape High Court which declared part of the Sexual Offences Act unconstitutional.

The High Court declared section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (Sexual Offences Act) unconstitutional.

The applicant, who admitted to raping three minor children while he himself was still a minor, was sentenced in terms of the Child Justice Act and his name was entered into the National Register for Sexual Offenders in terms of section 50(2) of the Sexual Offences Act.

The High Court held that the applicant's convictions and sentence were in accordance with justice.

Of its own accord, it proceeded to inquire into the constitutionality of section 50(2) of the Sexual Offences Act.

The court found that section 50(2) is invalid and inconsistent with the Constitution to the extent that it does not allow a court to decide whether a child offender's details should be entered into the register, or provide the opportunity for a child offender to make representations.

The order was not made retrospective and its effect was suspended for 18 months to afford the Legislature time to rectify the unconstitutionality of the provision.

The Minister of Justice and Constitutional Development, Jeff Radebe, who is the second respondent in the matter, does not oppose the confirmation of the order of constitutional invalidity, but argues that the remedy ordered by the High Court is problematic.

The amici curiae (friends of the Court), Childline South Africa, the Teddy Bear Clinic for Abused Children and the National Institute for Crime Prevention and the Reintegration of Offenders, argue that in addition to violating the right to a fair hearing, the challenged provision infringes the constitutional principle that a child's best interests are of paramount importance in every matter concerning the child.