Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill: public hearings Day 2

Meeting report

The Chairperson said the Committee had received more than 400 submissions on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill [B18-2014] (the Bill), following an extension to the deadline and the number had then reached above 900. Having gone through all the submissions, many of which were the similar, it was decided that the submissions which added a nuance would be invited for oral presentations.

Logos Assembly of God submission
Mr Albert Wiggans introduced himself as the pastor of the Logos Assembly of God, Belhar. He has been involved in community service for more than 35 years, of which a large portion is dedicated to children. He noted the views he was to express are on behalf of the Belhar community numbering 70 000, his congregation and the broader South African community.

As per his written submission dated 27 January 2015 he expressed strong disapproval of the decriminalisation of sex between children aged 12 to 16. He believed it to be God’s design that sex be shared and enjoyed in the context of ‘biblical marriage’. This is because adults are generally physically, mentally and emotionally more mature. Children are the greatest resource which the country has been blessed with. Without children it would have no future, without healthy ones it would have no hope and without morally sound children no future integrity. Children have been identified as the most vulnerable people in society and are entrusted to the custody of their parents and the state. He again put forward strong disapproval of the proposed amendments and argued that they are not in the best interests of children. In South Africa we consider 18 as the appropriate age for voting, marriage, driving and the purchase of liquor. He therefore found it alarming that the Bill seeks to give children aged 12 to 16 legal passage to engage in consensual sex. Sex between children is not the norm and can result in emotional and psychological damage. Further, approving the Bill will increase the already high incidence of teen pregnancy and consequent high school dropouts, the transmission of sexually transmitted diseases and the prevalence of sexual vice in society. Therefore, sexual activity between children in the relevant age group should not be decriminalised. Rather, government should provide safe legal parameters and moral guidelines to proactively protect children and contribute to a wholesome society grounded in sound morality. As a father, grandfather and ‘spiritual father’ he would find it comforting if government were to pursue the above in order to foster an environment where children can grow into citizens of outstanding calibre who could be an example to the rest of the world.

Kingdom Governance Movement submission
Mr Mkangeli Matomela, President Kingdom Governance Movement (KGM), said KGM would encourage Parliament from the outset to come up with a creative clause which would not legalise consensual sex between minors, which would protect them without criminalising the behaviour. This could be done by imposing a reasonable and acceptable measures following contravention. He said KGM is aware that this is an order of the Constitutional Court (CC), meaning Parliament is bound by the order and must satisfy the requirements of the judgment. The Committee should deal with decriminalisation in a creative way, by including groups such as faith based organisations (FBOs), social structures, traditional communities and government departments. If the clause is simply done away with the problems faced by the youth will only be compounded. He encouraged the Committee to have its researchers look into groups lobbying to have legislation passed which was “corrupting our society”. An example of the is the “Ten point plan of Alice Bailey” which encourages the destruction of the Judaeo-Christian tradition, reduction of parental control and the promotion of ‘free sex’. He also cited the example of the United Nations Secretary General confronting states such as Nigeria and Uganda in the previous year encouraging a particular position on sexual legislation. Further, he said Malawi was forced to adopt certain legislation under threats that their aid from western nations would be cut. He said “this is no accident, but is a planned campaign by people who have made themselves the agents of Satan”. Therefore, the democratic institutions of the country must not be allowed to succumb to these ‘forces of darkness’. Otherwise, the adoption of such positions will lead to people losing faith in these institutions and blame them for being partners in the destruction of society’s moral fibre. He warned that if children are allowed to have ‘free sex’ and consent to abortions then this opens them up to being victims of pornographers and the like. This problem should not be looked at piecemeal and the problem should be tackled holistically. He concluded by asking if nobody would like to encourage children as young as 12 to have sex, then who’s agenda is being pushed onto the government.

Ms Thandi Hlobo, Western Cape Convenor KGM, said in a nutshell is that the amendment would allow children to have free sex and this would be destroying the nation. This is despite their being treated as minors in a court of law, because they are not fully mentally matured. As a person who has experienced both rural and urban environments, the women who she has spoken to and broader communities do not support the Bill. Although Parliament is in a tight corner due to the Constitutional Court judgment, passing the Bill would be failing children and dealing with the ramifications would mean an increased burden on the state as it would now have to support not just a child, but that child’s children.

Discussion
The Chairperson clarified that the amendment did not seek to permit children to have consensual sex; however there is recognition of the fact that it is occurring and that at present this would lead to criminal prosecution of children. The consequences of such prosecution are very damaging to the children. Further, this places a burden upon the Correctional Services. The question becomes whether it is best to deal with this matter through the criminal justice system or should the responsibility be borne by the parents of the children, community structures and FBOs. This also raises another question: whether the above social institutions have failed in their duties and therefore the burden ought to be borne by the state. Parliament is elected by the majority of the people, yet its decisions must be congruent with the people as a whole. Therefore, FBOs which are highly numerous ought to have a dialogue amongst themselves to present a uniform position. He felt that work needs to be done by society itself, before people appeal to Parliament or government.

Mr B Bongo (ANC) said the debate is an interesting one, which may have to be hashed out through a summit including all FBOs. Parliament is put in a predicament, because FBOs hold contradictory stances. Therefore, the summit would allow the opportunity for FBOs to find common ground and determine how they could assist in dealing with the problems at hand. FBOs are a key role player in the various problems with the youth, such as drugs and alcohol abuse. With South Africa having agreed that the Constitution is the supreme law, the point of departure is any law declared invalid by the Constitutional Court invalid is inconsistent with the Constitution. He reiterated that the amendment does not seek to legalise consensual sex between adolescents, rather it merely decriminalises the act. Therefore, government and civil society have to work in tandem to ensure justice is done to the ruling of the Constitutional Court. He encouraged the presenters to abstract themselves from their subjective positions as parents or people of religious inclination, as what was needed is an objective stance aimed at trying to solve the problem.

Mr L Mpumlwana (ANC) said where there is a mischief, there must be a punishment, if it is not the children then who is to be punished. Will the African perspective be used to direct that the parents must be punished? He said that the moral problems around this topic are known to the Committee and it would be more helpful if the presenters could provide solutions.

Mr S Swart (ACDP) said there were a number of points raised by Mr Bongo, which he would not necessarily agree with. He wanted the Committee to consider that while the consequences of the Bill, if narrowly interpreted, may not be legalising consensual sex between minors, but if the good submissions from persons with rural experience are heeded, then the Committee must be concerned with the perception created by the law. How will people perceive decriminalisation and what is its impact? Perhaps decriminalisation could be seen as allowing the act. Given the ruling of the Constitutional Court, serious thought must be given to balancing the problems identified and the content of the submissions being made presently. While there is no time, it would be good to hear the views of rural communities to better understand the true impact of decriminalisation. The perception is important, because it raises the issue of the legitimacy of Parliament. While Mr Bongo has said that Parliament does not only lead Christians, it must be recognised that other FBOs have similar concerns and these represent 80% of South Africa. He felt that it was not inappropriate to put forward a subjective view as a person is entitled to this view and it is for the Members to evaluate. He agreed that a summit would be a good idea, but consensus among all FBOs on all the issues was impossible. He asked given the binding Constitutional Court judgement, what mechanisms could the presenters propose to assist where adolescents are engaging in inappropriate sexual behaviour. The Constitutional Court supported such an intervention given the risks such as teenage pregnancy. He asked Mr Wiggins what the implication is going to be for his community in Belhar, particularly regarding gangsterism and the potential that an adolescent may consent in order to become associated with the gang.

Mr W Horn (DA) asked whether the presenters feel that given the Constitutional Court judgement and the proposal by Parliament to decriminalise consensual decriminalise consensual sex between adolescents; that such a decision will stop them from preaching abstinence or whether their religious freedom and choice around sex is being impacted by the Bill.

The Chairperson said a global perspective was needed on this matter, because the situation is such that sexual activities between adolescents escalates. This in turn is caused by other causative factors, such as the high prevalence of alcohol in townships and pornography in the media. The question is therefore should the faith based organisations only be concerned with what Parliament is doing or ought they also be concerned with these other causative factors. He has heard the suggestion that the Committee hear the views of rural communities, however some religious perspectives on the beliefs of traditional communities would label such beliefs as ‘heathen' or 'paganistic’. Despite this traditional communities have taboos which have been dealing with these types of problems. He agreed with Mr Bongo that there needs to be a societal dialogue. However, government cannot wait for this dialogue to take place, it has to deal with the immediate issue facing it. If the amendment does not go through, then the state will be forced to arrest children, placing an extra burden on the courts and prisons. However, Parliament provides this platform for the public to impart its wisdom and the submissions will be taken into account.

Mr Matomela responded generally saying, it seems what is being said is that government institutions such as the executive and government have no responsibility for protecting societies values. If this is the case then the government fails to truly represent the electorate. A government elected by the people has the responsibility to protect the values of that society and if it passes legislation which is contrary to those values it becomes more difficult for the people to live by these values. This was done when the Department of Social Development ran the campaign against spanking, which eroded parental authority. Government must therefore be held accountable for the practical results of the undermining of social values. There should be a balance between the rights of children and the authority of parents, because an overemphasis on the one is dangerous for society. He emphasised that while technically the decriminalisation is not meant to encourage sex between adolescents, to an ordinary person the amendment will mean that sex between children has now been legalised. He also had a problem with Mr Bongo stating that people must shed their subjective beliefs when in Parliament, because these are what give people the confidence in having you representing their interests. On media, he said it was government which was responsible for the allowing pornographic content and the same applied to licencing of taverns in the townships. Therefore, it cannot place the blame on communities. He suggested a “radical solution”, to amend South Africa’s liberal Constitution because it does not represent the values of the vast majority of the people of South Africa. If this is not done, then government will find itself in this morally problematic position continually. He encouraged taking this “bold” step, but restricted to looking into the clause which did not gel with society’s values. He emphasised values over religion, as the latter is divisive.

Ms Hlobo responding to Mr Horn’s question about the ability to preach abstinence said the problem is that once people hear they have a right to do something, then preaching becomes futile.

Mr Wiggins agreed with Ms Hlobo and said he would continue to preach regardless. He said it was a pity that there was a moral degeneration across the board and even the Constitution causes many of the problems grappled with by the nation. Twelve to 16 year olds are often not mature enough to properly gauge the pros and cons of many of their actions. The references made earlier to ‘forces with a hidden agenda’ is disconcerting. The ever increasing victimisation of women and children through the sex trade, which could be fuelled by the decriminalisation of consensual sex between the target group. When he speaks as a father, he does not use this as a subjective standpoint but as an illustration that this is a universal concern as almost all people will become parents, and it is difficult to understand the particular concerns until one is. One realises that one is responsible for generations which flow forth from you and full responsibility must be taken. He felt that the late Former President Nelson Mandela was an example of a nation’s father and speaking as a parent is recognising the influence one has on the morality of a group of people.

Responding to Mr Swart, Mr Wiggins said in his community many young people do not have the cognitive responsibility to even consider their actions. He referred to an example of a gang shootout which happened outside his church. If they cannot even consider the value of a life, how much less would they consider the damage to be done to a 12 year old in the context of prostitution. What is needed is moral reform in the hearts of the people, society in general and even political leadership. Terminology is sometimes used without the essence of the meaning, as perhaps is the case in “honourable Member” or “honourable Speaker” in light of the recent goings-on and this applies presently as he felt that decriminalisation would indeed translate into legalisation.

The Chairperson said he was not speaking for government, as Parliament oversees the executive, but on 4 to 6 July 2012 government, through the President, convened a summit on social cohesion and nation-building, particularly through societal values. A declaration was adopted and there is a programme in government to give civil society and FBOs the opportunity to express themselves on such issues. However, he could not recall a single organisation taking up the opportunity presented. The same applies to the Moral Regeneration Movement, launched by the late Former President Nelson Mandela. He therefore was not sure if it was government failing to take responsibility for society’s morality or if society itself was creating the problem. He also did not feel that there was any government which wanted to take away parental authority, there are however abuses which occur in the name of parental authority and therefore government must intervene to an extent. He clarified that Mr Bongo had not intended to say that people must shed their personal values or religion when they come to Parliament, as this would be contrary to the Constitution. All that was intended was to encourage people to look at the whole picture. The reason public submissions are made is for the various sectors of society to make their voice heard and this must be taken into account in drafting the laws to truly reflect the will of the people. Lastly, he emphasised that it would be counter-productive to take away the work of social institutions such as Muslim madrassah schools, Christian Sunday schools and traditional initiation schools by criminalising children. He noted that his remarks were far from conclusive as the Committee would still debate the oral and written submissions.

Ms C Pilane-Majake (ANC) said that it is important to remember that what is being dealt with is an order of court, based on the democratic principles enshrined in the Constitution. There will always be problems when morality interfaces with the various liberties protected by the Bill of Rights. The discussion has gone too far into moral terrain, given that South Africa is foremost a rights based country. The argument that decriminalisation is equal to legalisation is false, because this is not necessarily so. The primary concern should be ensuring the proper development and protection of children. She also warned against using this platform to reopen other issues, such as reference being made to abortion. The contention around the Choice of Termination of Pregnancy Act is a closed debate. The argument that parents ought to have full control over their children is also inconsistent with wanting state intervention. There are times when the state itself has to be a parent, such as when parents are failing. Therefore the provisions to be drafted must afford the fullest protection, in all situations to the children of South Africa. She also warned that statements such as 'the Constitution was drafted by people who are intent on corrupting South African society' should not be lightly made. The Parliament which drafted the Constitution did not operate on its own, the present public submissions are testament to Parliament embodying the will of the people.

The Chairperson in defence of Mr Matomela said the statement should be taken as an onion and a war of opinions is unhelpful.

Mr Matomela said Ms Pilane-Majake had said South Africa is a rights based society as if this displaces all talk of values. He appealed for a balance to be struck between rights and values. On the Constitution, he said he was aware that many ANC Members were concerned about the Constitution and his challenge was that it ought to be tested to see whether it is too liberal for the society it governs. Therefore, he would suggest the only way to accurately test this would be through a referendum. He was aware of the Constitutional Assembly which drafted the Constitution, but the document was not taken to the people for a referendum.

The Chairperson said while the proposal is a matter for another day, the Constitution is interpreted as providing for both rights and responsibilities which are two sides of the same coin. Further, that one stance on the moral values which predominate in the country may not necessarily be a true reflection. He also noted that the end of the road has not been reached when all the opinions have been heard.

Muslim Judicial Council (MJC) submission
Moulana Abdul Fattag Carr introduced himself as a father of seven, a member of the MJC for over a decade and the Imam of Salt River Masjid, giving him a grass roots experience of the problems of the people. Further, being the principal of its attached Madrassah school has brought him into contact with the youth. As an introduction he noted that for as long as Islam was accepted in South Africa, Muslims have been allowed to practice traditional marriages with all the mechanisms which come with it. This includes rights and responsibilities for various family members. The first point was that in Islam sex was only allowed within the confines of a marriage, otherwise it is prohibited. The responsibilities for the consequences of intimacy are designed to be borne in the context of a marriage, such as the financial responsibility borne by a father. The judgment found that sections 15 and 16 of the principal Act infringed the rights of adolescents to dignity, privacy and a child’s best interests. Under Muslim law the child’s right to marriage is balanced against the responsibilities which this will result in. The ability to cater to these responsibilities is the key to marriage and therefore intimacy. His second point was that sexual attraction to the opposite sex was seen as natural under Islam and it therefore could not be stopped. This in modern times has become a phenomenon noticed in children as young as ten years old. While it is a natural need, Islam encourages its suppression for as long as appropriate through things such as not exposing young children to explicit material. Thirdly, the qur’an encourages a morally upstanding life when it comes to sexuality, therefore promiscuity is condemned and it is important for children to receive moral guidance on this from their guardians. If this moral foundation is absent, then the natural consequence is a pull towards intimacy, which if accelerated could lead to sex at a very young age. Therefore, the MJC sees the values in society are integral to protecting the morality of our children and the future of society. In conclusion, its basic submission is that leaving the status quo intact would be seen as a stand for morality, while decriminalisation will be seen as promotion of intimacy between minors. Although the MJC is sensitive to the fact that this may be an oversimplification bearing in mind that the reason for the principal Act's invalidity is children’s rights. As Parliament works the tightrope between the various inputs, the MJC would like it to be conscious of the feelings on the ground.

Congress of Traditional Leaders of South Africa
Ms M Mothapo (ANC) indicated that there had a miscommunication and the CTLSA was not present.

The Chairperson said the submissions were still important and ought to be communicated to the Committee. He later said the rural voice needs to be heard and there is no better representative than the CTLSA.

Discussion
The Chairperson said if the MJC’s submission was listened to it will be noticed that this faith-based organisation (FBO) speaks about suppression of the need for and prevention of the act of intimacy. Therefore, it accepts the responsibility for these aspects without shifting it to government. All that is suggested is that the perception on the ground will be that decriminalisation means promotion. This raises the question of education. It cannot always be said that the perception on a ground will be a certain way. Lay people, if educated, could have opinions even better than those presented in the meeting. Therefore there is a responsibility to go out into the various houses of worship and communities to educate the people, to avoid “hiding behind ‘the people’” to prevent government from acting as it is bound. He was happy that the MJC was not shaking off its responsibilities and encouraged it to continue doing so.

Mr S Swart (ACDP) spoke to the issue of the perception on the ground and what Mr Carr said decriminalisation will be perceived as promotion. He felt this opinion ought to be given consideration, given Mr Carr’s experience on the ground. While the Constitutional court has said that the answer to decriminalisation lies in education and other means, his concern remained that if the Bill is passed, the perception of the people would be that immoral values are being promoted. He asked Mr Carr to expand on his point around perceptions on the ground.

Ms Pilane-Majake welcomed the submission and appreciated that it was taking the Committee in a new direction. While the question has to be taken from a constitutional standpoint, this does not mean that the Committee can completely disregard basic societal values. However, she cautioned that what may be moral to one, may not be moral to another person; particularly in the wide range of issues which face society. An example was sexual orientation which is now a liberty enshrined in the Constitution; similarly with termination of pregnancy which was regarded as a sin during apartheid. Morals and values are not being thrown out, but because South Africa is a constitutional democracy other people’s rights need to be taken into account.

The Chairperson said he had been involved in a debate about back-street abortions while he was at high school. The argument had been that abortion had been criminalised, but that does not prevent people from falling pregnant. Preventing girls from aborting leads to them going to quack doctors to abort and as a consequence they die. There is no right answer to the question whether it is better to criminalise abortion to save lives or allow abortions to save lives. The point is that people ought not try to prescribe to each other and should try to find space for competing views. Moving to the question of the people on the ground, he said Parliament funds constituency work and it is Members are responsible for going to the people to explain the laws they have made. Similarly, FBOs should do the same, but the key is having a literate society.

Mr Swart not wanting to go into the issue of abortion and more on the present point said it is ‘ludicrous’ that it is said that children aged 12 do not have the cognitive development to understand consent to sex. However, the Children’s Act allows for a child to consent without their parents if they understand the implications of the medical procedure. The Choice of Termination of Pregnancy Act provides that anybody may choose to terminate a pregnancy. If a further medical procedure is required the consent of parents may be required and this is a glaring inconsistency. While Members do go out to constituencies, it must be recognised that the value of people who work consistently in communities over extended periods.

The Chairperson directed a question to Mr Lawrence Bassett, saying that at the previous sitting the submission from the Southern African Catholic Bishops Conference had been to the effect that the lower age for consensual adolescent sex be ten rather than 12. He was at first unconvinced, but was persuaded by the argument that if children aged 12 to 16 are sexually active what is to stop children aged ten or 11 and the law would be silent on the point. He wanted to know if the judgement bound the Committee to deal only with ages 12 to 16.

Mr Bassett asked to come back to the Committee on the question, but it was something being considered with the position to being presented later. There is also the possibility that the age may be raised above 16 and the legal implications will be considered and brought to the Committee.

The Chairperson welcomed the attention given by the Department of Justice and Constitutional Development. As he had been concerned that presenters may feel their submission pointless if it was not getting due attention. However, the interest shown and action to be taken by the Department is evidence that government takes the input of parties seriously.

Mr Swart asked that the Department consider paragraph three of the judgement, because it indicates that the judgement is not dealing with whether Parliament can set the minimum age of consent. This could be either up or down and he would like the Department to consider the implications for future court cases.

Legal Resources Centre (LRC) submission
Ms Charlene May, LRC Attorney, said the written submission was quite lengthy and therefore they would concentrate on two points: the decriminalisation aspect and the National Sex Offender Register (NSOR).

Ms Mandivavarira Mudarikwa, LRC Attorney, spoke to the Teddy Bear Case, specifically the extent to which the Bill complies with the Constitutional Court order. The LRC’s position on clauses 2 and 3 was that they remove any possibility of children, between 12 and 16, being criminalised for either statutory sexual violation or penetration. This decriminalisation is supported as being in line with the Constitution and the order of the judgement. Further, there is the close-in-age exclusion, which is at times is confused with a defence. Basically, it excludes from prosecution the situation where a person over the age of 16 has sex with a person not more than two years younger than themselves. The LRC again supports this amendment as being in line with the rights entrenched in the Constitution and the court order. Under both clauses there is a matter relating to prosecutorial discretion, where for example a case falls outside the close-in-age defence, a Director of Public Prosecutions (DPP) has the discretion to prosecute. It must be remembered that children are defined as persons below the age of 18 in the Constitution and therefore it is still important to protect these adolescents’ best interests in line with section 28(2). For example where a 15 year old and a 17 and a half year old engage in sex, the older child would be liable to prosecution. This discretion is where the protection of these children is now located. The LRC’s position is therefore that the discretion should be located with the National Director of Public Prosecutions (NDPP) or delegated by the NDPP to a DPP. However, the Bill as it stands does not deal with who is to do the delegation or offer any guidance on the manner of delegation and this needs to be done in order to afford children proper protection.

Ms May said the purpose of the National Sex Offenders Register is to protect children and mentally disabled persons from coming into contact with sex offenders, by informing relevant employers, licencing authorities and child care authorities. The purpose has serious implications, because if one’s name appears in the register they cannot be employed to work with children, allow the person contact with the child, hold a supervisory position over children and cannot become a foster parent, kinship caregiver or even a be a temporary supervisory caregiver. The Case of J v NDPP in brief dealt with the conviction of a 14 year old who had been charged with the rape of seven year old boy, two six year old girls and assault with intent to do grievous bodily harm on another person. The crux of the case was that because of the grave consequences of one’s inclusion on the register, automatic inclusion in the Register would violate the offender’s rights if they were not afforded adequate opportunity to make representations against inclusion to a court and the court given a discretion. The current framework of the principal Act does not afford the court space after hearing representations to decide on inclusion.

The Western Cape High Court dealt with automatic inclusion viz both adults and children, but the Constitutional Court only dealt with children. The relevant findings of the judgement are that it found that the best interests are paramount in any matter and as children are capable of changing, growing and learning how to conduct themselves in the wide moral world of adulthood. The law should distinguish how it deals with child and adult offenders. The importance of an individualised approach was also emphasised regarding child offenders. Generally the LRC supports the Bill's handling of the matter. The LRC submission is centred on gelling the Bill with the existing legislative framework contained in the Child Justice Act. This will ensure the procedural aspects will be a smoother process and less cumbersome on the offender and the implementing department. In particular section 52(a) should be amended to provide a presiding officer the necessary discretion in deciding on the particulars of a child being included. Therefore the word ‘must’ is problematic and amended wording was proposed. In terms of the Child Justice Act there are provisions for pre-sentencing reports. The LRC suggests that such a report is included in the present process, to help the presiding officer make an informed determination on inclusion. The basic process under the Child Justice Act is that where a child is convicted, a pre-sentencing report is compiled. The suggestion is that the person doing the assessment looks at relevant factors on whether the child should be included on the register.

On removal of particulars from the register, the LRC welcomes this now being placed before a court. It however believes that the presiding officer should be placed in an informed position to balance the rights of the offender against the risk to the victim and other vulnerable persons. The LRC suggests that guidelines be developed to guide the presiding officer, seeing as such guidelines have been put in place for other legislation such as the Domestic Violence Act. These will ensure that removal from the register does not become a mere administrative or academic exercise, but that rights are the centre of the decisions. Once the child enters the criminal justice system the provisions of the Child Justice Act would apply and therefore its provisions could be extended to monitor the behaviour of the child offender and assessing the risk they pose. The essence of the proposals is that provisions of the Child Justice Act could be extended to cater for inclusion and removal from the NSOR. Further, relevant wording can be found on page 22 of the LRC’s written submission.

Women’s Legal Centre (WLC) submission
Ms Laeeqa Soobedaar, WLC Attorney, said the submission deals with two major points: decriminalisation of consensual sexual activity, particularly the extent to which the Bill complies with the Teddy Bear case judgment, and secondly the National Sex Offender Register. On consensual sexual activity between adolescent peers, WLC acted as amicus curiae at both the High and Constitutional Court levels. In this capacity the WLC highlighted the disproportionate effect the impugned sections had on adolescent girls. The WLC is in complete agreement with the reasoning of the Constitutional Court, but felt it important to point out certain factors. Bearing in mind that SA has a high level of sexual violence it is indisputable that the brunt of the violence is borne by women. However, this cannot be conflated with consensual sexual activity and exploration undertaken by girls. She emphasised that decriminalisation is not tantamount to promotion of consensual sexual activity. While adolescents engaging in a full range of sexual behaviours may not be desirable, the criminal justice system is not the appropriate response to try and teach adolescents healthy sexual behaviours or decision making. Subjecting adolescents to the criminal justice system for engaging in consensual sexual activity could have the effect of severely harming them psychologically and emotionally. Further, it has the effect of separating adolescents from the people and services in society which would afford them protection and guidance in this realm.

On the rights which are implicated by the impugned provisions, the Constitutional Court found that the rights to human dignity, privacy and the best interests of the child were violated - meaning that it did not consider other rights raised by the WLC. These were equality, bodily integrity and access to healthcare services. Primarily girls are going to lay charges of non-consensual sexual violation and rape, the sections in the current form produce the result that where absence of consent cannot be proven the complainant in a rape case will then have to be charged under either section 15 or 16. Therefore, a girl who starts out as a complainant in a rape matter may end up being a co-perpetrator in a sexual offence. With bodily integrity and access to healthcare, the submission is that the duty to report would make girls reluctant to seek medical assistance generally with contraception. The last point on discrimination is that only girls bear a physical marker of sexual intercourse through pregnancy and this has already resulted in selective investigation and prosecution of pregnant girls meaning discrimination on the grounds of sex. Therefore, the WLC broadly supports the proposed amendments in clauses 1, 2 and 3 of the Bill and the move towards compliance with the order of the Constitutional Court.

Ms Soobedaar moved to the specifics of clauses 1, 2 and 3. The WLC welcomes the decriminalisation of consensual sexual penetration and violation; as well as the close-in-age exclusion for 16 and 17 year olds. The WLC fully supports the amended definition of 'child' contained in clause 1. However, a problem lies with the placing of the discretion to prosecute where a case falls outside the close-in-age exclusion. The WLC, while supporting the retention of a prosecutorial discretion, submits this discretion should lie at the highest level, that is with the NDPP. The rationale for lowering the level of decision-making is unclear and it is unclear how this lowering will serve the best interests of the affected children. The same holds for the ability to delegate the discretion, for the same reason. Similar comments apply to clause 3, which deals with sexual violation under the current section 16 of the principal Act.

She moved to the extent which the Bill complies with the judgment in J v NDPP. The WLC fully supports the submissions of the Centre for Child Law and Community Law Centre, which detail the submissions under this head. The WLC’s particular concern lies in the provision’s impact on girl children. A practical example illustrating the point would be where a girl shares a sexually explicit picture of herself, constituting the manufacture, possession and distribution of child pornography. This offence if prosecuted would result in the automatic inclusion of the girl's name on the NSOR. This is challenging, because girls are under social pressure to be sexually attractive and may be inclined to share such pictures. However, they are not child pornographers in any real sense of the word, although they are technically guilty of the offence. It is not in the best interests of any children to have their names automatically included on the NSOR. The provisions of the register have to be carefully considered, because of the potential problems if applied to practical reality.

In conclusion the WLC is in support of clauses 1 to 3, barring the submissions on the prosecutorial discretion. However, with clauses 4 to 10 of the Bill, the WLC feels that they fall short of compliance with the principles of the best interests of the child as set out in the Constitution and the J case. This could be remedied through further consideration and reformulation of the latter clauses.

Discussion
Mr Swart said the WLC had made an insightful comment around the laying of a charge for rape, specifically that where the complainant cannot prove the absence of consent they would then potentially face charges under the Sexual Offences Act. This is an important consideration and implication of the law at present. He conversely asked the WLC whether it agrees that when the decriminalisation is passed, would it still not be possible that an accused in a rape matter could claim that there was in fact consent leading to the need to disprove consent. However, conscious of the contents of the judgment, if it was criminalised then there would be no question of consent. Further, how is this problem to be dealt with following the amendment.

Ms Sobedaar replied that with the proposed amendment the different age groups being dealt with must be borne in mind, because the close-in-age exclusion only applies in certain instances. However, in circumstances where there is a lack of consent, this falls squarely within the ambit of the rape laws in South Africa.

Mr Swart said the issue lies in statutory rape, which does not require an absence of consent, and this provides a fall-back position or competent verdict. It must be agreed that this falls away as a result of the decriminalisation.

Ms Mudarikwa said the issue with statutory violation or consent is that it is regardless of consent. Where the close-in-age exclusion does not apply, the prosecutor is technically open to pursue a charge of statutory rape. As a child is involved the prosecutorial discretion becomes important. If the complainant chooses to lay a charge of rape, then consent becomes the centre of the case regardless. This is not an issue which is unique to children’s issues, although there are instances where the children involved were unable to testify. That however is a separate issue in need of ventilation and attempts such as testimony in camera are moving towards dealing with such issues.

The Chairperson spoke to the issue of keeping the discretion with the NDPP, rather than allowing a delegation. He felt it could be problematic to restrict the decision to an individual, because it runs the risk that they will not be able to keep up with the caseload resulting in a backlog.

Ms May said the rationale centres around the need for a consistent prosecutorial policy across the nation in dealing with prosecution of 16 and 17 year olds. It must be remembered that children are at issue and therefore section 28(2) of the Constitution applies making the child’s best interests paramount. This would require national consistency and consistency cannot be ensured nationally where individual directors of public prosecutions are exercising the discretion, particularly as it is unfettered.

Ms Mudarikwa added that the unavailability of the NDPP had been a concern, particularly for access to justice. Therefore, the LRC formed the opinion that the NDPP should have the ability to delegate as far as the DPP, but also that this should be underpinned by guidelines about what should be considered in the exercise of the prosecutorial discretion. These guidelines must be detailed enough to protect the best interests of the child, at the very least stipulating what must and must not be considered in exercising the discretion.

The Chairperson agreed saying that guidelines are important and it would facilitate a collective working on an issue avoiding over reliance on an individual office.

Rescue Family Lives (RFL) submission
Mr Phikolomzi Adonis, RFL Chairperson, agreed with Mr Swart’s point about rural people not knowing about the details of the legislation passed, although they reap the fruit. This is evidenced by the abortion matter raised earlier, because children are finding themselves unable to have children given the numerous abortion procedures they have undergone. Therefore, RFL has concerns with the Bill. The definition of a child is a person under the age of 18 and it is clear that the Bill aims to prevent criminalising consensual sex between minors. Research on early childhood sexual activity, indicates that sex affects children physically, mentally and socially. This could be the result of emotional stress from broken relationships, fear and confusion about romantic feelings, altered self-esteem, guilt, depression and an impaired ability to form lasting future relationships. Therefore, the RFL recommends that the definition of a child be used and this be used in relation to the age of consent. This need not result in criminal liability and repercussions could take the form of counselling to protect these people who are still maturing. Further, parents should take full responsibility for their children’s offences, because they fulfil a trusteeship role and are required for consent in many other contexts in a child’s life. He concluded by reiterating that these issues affect many people in rural areas who do not understand the true implications and this goes all the way up to traditional leadership.

Submission on behalf of Ayanda Ngwane
Ms Ntabiseng Moleko said she was saddened when she read about the content of Bill and from consultations with women what is seen is that women suffer greatly in rural areas. Even today this has not changed and is seen in the conditions which many young rural women face. In brief her position was that the Act should not be amended as proposed as the minimum age of consent will be lowered even further. If the issue at hand is the criminal record given to youngsters, then why change the age of consent and not deal with the record itself? Her firm belief was that corrective and restorative justice should rather be the focus of youths convicted of breaking the present law. This, rather than put the lives of millions of other children at the mercy of a society already grappling with teenage pregnancy and unprotected sex even among adults. This despite the massive efforts of government departments and loveLife campaigns to curb the trend. Little has changed the behaviour of people in society, with rape statistics remaining very high. If the country is incapable of controlling adult sexual behaviour, evidenced by the high rate of HIV/AIDS, then how can it be expected that children will be able to deal with these problems. Speaking for the young, African girl child who will be further exposed in society if the amendment goes through in its present form. She vehemently opposed the Bill and believes government should not be party to allowing adolescents to engage in sexual activity.

She then spoke to research documents commissioned by government. First, according to a research document produced under the Human Sciences Research Council, commissioned by the Department of Basic Education entitled ‘Teenage Pregnancy’ only a third of teenagers who get pregnant return to school. Ms Moleko said this will be even worse in rural areas, because of the prevalent culture. Specifically that the young girl’s future will be compromised, rather than the young boy’s. Further, HSRC found that there is a high concentration of teenage pregnancy in the more rural provinces such as the Eastern Cape, Limpopo and Kwa-Zulu Natal. Where poverty remains unacceptably high, women are not free to decide under what conditions they will have sex. This exacerbates the risk of sexually transmitted diseases and pregnancy. A national syphilis and HIV prevalence study conducted by the Department of Health indicates that 12.5% of girls aged 15 to 19 who were pregnant also had contracted HIV. Children do not have the physical, mental or emotional maturity to make proper decisions about contraception and sex. She highlighted the potential negative practical impact of the Bill, particularly that there may be financial implications in having to pay further grants and the indirect cost of having children dropping out of school. Government needs to ask itself if it wants to create a greater burden for itself. Thought also needs to be paid to the perception of the Bill by children, because it removes a tangible boundary and therefore the prevalence of adolescent sex and the associated risks will increase.

Her recommendation would therefore be that corrective and restorative justice should be pursued rather than the age of consent being lowered. Further, she suggested the age of consent be increased if this is possible in the legal context.

Discussion
The Chairperson said the thrust of the submission still tends towards having the state do what the society is supposed to do. It was also said that society has failed, but how is it possible for the state to have a greater interest in children than the parents of these children.

Mr Swart appreciated the passion with which the speakers representing rural areas spoke. He had heard Ms Moleko speak of the disempowerment of rural women and in his experience this had gone to the extent that some women do not know that they are allowed to say no. He asked for comment on this disempowerment, particularly as passing the amendment would expose young children to situations where they may not fully understand what is required for consent to full penetrative sex. He agreed with the Chairperson that this was a societal issue, however there is still a legitimate role for the state, given teenage pregnancy and HIV/AIDS. He liked the suggestion that the minimum age of consent be raised, particularly as the judgment explicitly did not deal with the minimum age for consent thereby leaving the question open to Parliament. He noted that at the common law the age of consent was 14 and why should the Constitution warrant consensual sex at 12?

The Chairperson said the question was not whether a 12 year old can consent to sex with another 12 year old, but rather that as this happens regardless, it ought not be criminalised.

Mr Swart agreed that from a straight legal perspective decriminalisation is simply that, however it is the perception on the ground which matters. If it was possible to get to every member of the population and explain what decriminalisation means, then perhaps it would be fine, but the perception remains. When a Bill is passed it must be costed and this has not been done, he agreed that the fiscal implications and unintended financial consequences of the Bill should be looked into more deeply. He also asked for the last two submissions to be forwarded in writing.

The Chairperson said children do have the capacity to understand, but the parents are not doing their work to educate the children. It cannot simply be said that children are incapable of understanding, if parents and society do not do enough to educate them.

Mr Matomela said the reason he objected to the sentiments of the Chairperson, because parents are confronted with a lack of consistency. If children have such a great capacity to understand, why not allow them to vote. He understood that parents must take responsibility, but they feel disempowered in the context which they are made to raise their children.

Mr Swart said differentiation is important, with the law recognising different ages for different issues, but he spoke to the inconsistencies. In traditional practices boys are not allowed to consent to circumcision below the age of 16, unless both parents are involved. The same applies to virginity testing. Why are there restrictions on these traditional practices, but abortions are allowed at any age. He would like to hear comment from traditional leadership, because these types of practices were geared at dealing with child sex.

Mr Wiggins, as Mr Bongo had returned, reiterated that he had made comments about being a father not for subjective consideration, but as a universalising factor.        

Mr Bongo said as a Committee of Parliament which is receiving large numbers of submissions, with some coming from FBOs presenting contradictory stances on the amendment. Therefore an objective viewpoint, especially as when various groups make submissions, Members must be able to distance themselves from their personal convictions and make a decision which will accommodate a variety of viewpoints. This also applies to making references to one’s own familial experiences. Further, there is the consideration that South Africa is a constitutional democracy where the Constitution must be respected to the letter. He clarified that he did not mean the statement to be a personal attack and was a push in recognition that Parliament needs to represent all sectors in society.

Mr Wiggans said the response did not satisfy him, because fatherhood is not restricted to a particular faith. The children under consideration, between ages 12 to 16, have all been fathered in some way. His prefacing statements were intended to demonstrate that the responsibilities of parenthood are universal.

Mr Matomela wondered whether the amendments, with a moral underpinning, are serving the communities of South Africa. Aside from the people who have made submissions, no community would support the government saying that children aged 12 to 16 can have sex. His point was that small groups should not be favoured, over the common values held by the majority of the peoples of South Africa. He therefore encouraged a balance between rights and values.

The Chairperson said no one in the Committee has suggested that children ought to have sex. What is being said is that the previous solution was to criminalise such behaviour, however it was realised that this solution was creating more harm for the children. Therefore, the Committee is receiving submissions looking towards the best interests of the child.

Ms Moleko asked what format the Committee would like the faith based organisations to voice their disagreement. He knew there was a council for churches, which government consults for the opinion of FBOs. As Members have indicated that there is always a variety of opinion, she wanted to know the best way for FBOs to voice their ‘vehement opposition’. She asked if a petition would be sufficient proof for the Committee to recognise that while there may be pockets of society which agree with the amendment, generally South Africa is opposed to it.

The Chairperson said Parliament respects the rights of organisations to be autonomous, associate and pursue shared objectives. All that is being said is that where these organisations can deal with matters out of the auspices of Parliament and find common ground before making submissions, this would assist the process. This does not apply only to FBOs, but to the various associations of lawyers and others.

Mr Matomela said he understood the predicament facing Parliament due to the Constitutional Court order. His question was that if under these circumstances, government must be seen as saying to the people it is fine for children to practice sex once they reach 12. He therefore suggested that perhaps structures outside of the criminal justice system could be empowered, in a legal sense, to be able to curb the potential for adolescent sex.

Mr Bongo sympathised with this argument, but said that this is an ongoing consultative process. He appealed that common ground be sought and tangible solutions be brought, rather than empty statements criticising the process. He emphasised that it is not being said that from the age of 12 children are able to do as they will, rather the issue is simply decriminalising consensual sex.

The Chairperson said he would request Parliament’s media department to arrange interviews with various Members of the Committee with the media, so that these issues can be taken to a debate in the broader community. More importantly, Parliament must explain the issues properly, lest another entity blame Parliament for permitting 12 year olds to have sex.

Joshua Generation Church submission
Ms Nikki Venter, Attorney with Joshua Generation Church (JGC), first said it is understood that the Constitutional Court has made a judgment on the issue and commends Parliament for pursuing the amendment. JGC agreed that criminal prosecution of children under the age of 16 is not the answer to preventing consensual sexual activity. However, JGC submits that there should be an answer to this problem and the Bill in its present form does not do so. While the amendment is sufficient for the purposes of the Constitutional Court order, it does not do enough to protect the children of South Africa and more should be added. With the age of consent essentially being reduced to 12, South Africa is joining a small group of countries with such a low age of consent. With this in mind it is incumbent upon Parliament to go the extra mile to protect children from the potentially negative outcomes that come with such an age of consent. JCG is aware that there are positive outcomes as, outlined in the judgment; however there are also potentially negative outcomes. She noted that the judgment indicates that discouraging the sexual activity of minors is a legitimate and important factor for Parliament to take into account. Further, the Constitutional Court acknowledges that consensual sexual acts can carry the risk of psychological harm, pregnancy and the contraction of sexually transmitted diseases. Whilst they have declared criminality unlawful, less restrictive means are available to Parliament to achieve the purpose which the Court believes is important. The JGC submits that since South Africa now has such a low age of consent, the Constitutional Court has recognised the purpose as legitimate and has recommended less restrictive means; that Parliament recognises this and implements such means. The JGC submitted that there are potential scenarios which are not covered by the amendment, for example where an adult encourages two adolescents to engage in consensual sexual activity in the adult's presence and being able to rely on their consent as a defence. It is submitted that a clause covering such a situation be inserted to prevent South Africa being viewed as a soft target for paedophiles. Further, many other countries have laws to deal with situations where the older person is in a position of trust such as a teacher or coach and a clause restricting sexual activity where the older person is in a position of authority is proposed for inclusion. The removal of criminalisation while necessary may leave a gap and Parliament has the responsibility to fill this space with further amendments. If a portion of this responsibility is going to fall on FBOs, then a parliamentary policy needs to be in place allowing FBOs to teach in accordance with their beliefs and scriptures. Further on parental authority, consistency needs to be present in the law. It cannot be said on one hand that parents are responsible for their children’s discipline and at the same time revoke their right to reasonably spank their children. Thirdly, the Constitutional Court judgment is based on the dignity and privacy of children, which could be a slippery slope leading to revoking parent’s right to control their children. This has already been done in the context of abortion and could lead to the removal of the right to prevent consensual sex.

In sum, the amendment does cover the requirements of the judgment, however it does not provide for less restrictive means as encouraged by the Constitutional Court. Nor does it cover potential loopholes which may arise out of the amendment. JCG therefore encourages Parliament to redraft the provisions keeping in mind the need to protect children from the risks associated with adolescent sexual activity. It is submitted that Parliament be conscious of the danger which decriminalisation exposes children to and the consequent need to have legislation closing the gap.

The Chairperson then declared the meeting adjourned.