On the 6th May 2014, the Constitutional Court handed down a judgment declaring section 50(2)(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (Sexual Offences Act) unconstitutional. The section provides that when a person is convicted of a sexual offence against a child or person who is mentally disabled, a court must make an order to include the offender’s particulars on the National Register for Sex Offenders. Having one’s particulars entered on the Register entails certain limitations in employment, in licensing certain facilities and ventures, and in the care of children and persons with mental disabilities.
In a unanimous judgment, the Constitutional Court found that section 50(2)(a) of the Sexual Offences Act infringes on the right of child offenders to have their best interests considered of paramount importance in terms of section 28(2) of the Constitution. The Register fulfils a vital function in protecting children and persons with mental disabilities from sexual abuse. However, the limitation of the child offender’s right is unjustifiable because a court has no discretion whether to make the order and because there is no related opportunity for child offenders to make representations. The Court limited its declaration of constitutional invalidity to child offenders.
Childline South Africa, the first amicus in this application to the Constitutional Court to have section 50(2)(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (Sexual Offences Act) declared invalid, is delighted with the decision of the Constitutional Court, as it protects the rights of children, having recommended that each child convicted of a sexual offence should be assessed, offered the opportunity of participation in a rehabilitation programme and then be reassessed for risk before their name is placed on a sexual offender register.
You can view a summary of the judgement here