Parliament was given 18 months to amend Sections 15 and 16 of the Act and placed a moratorium on all investigations, arrests, prosecutions and criminal proceedings regarding adolescents in terms of the Act until then.
The justice minister was ordered to take steps to ensure that the details of any adolescent convicted in terms of the Act will not appear in the National Register for Sex Offenders and to expunge their criminal records.
Shaheda Omar of the Teddy Bear Clinic yesterday described the ruling as a major victory. “Children’s rights have been protected, ensuring their dignity, enabling them to make informed positive choices and protecting them from secondary trauma,” she said.
Carina du Toit of the Centre for Child Law said the judgment recognised the harm of criminalising developmentally normative conduct between adolescents.
“The court also recognised that although children need to be protected and guided, in an attempt to protect we should not do something overbroad that harms children in the end,” she said.
Judge Sisi Khampepe found that the provisions of the Act violated the rights of adolescents to dignity and privacy and the constitutional principle that a child’s best interest must be of paramount importance in all matters concerning the child.
“It cannot be doubted that the criminalisation of consensual sexual conduct is a form of stigmatisation which is degrading and invasive. The human dignity of the adolescents targeted is clearly infringed. If one’s consensual sexual choices are not respected by society, but are criminalised, one’s innate sense of self-worth will inevitably be diminished.
“The evidence demonstrates that the existence and enforcement of the offences created by the Act exacerbate harm and risk to adolescents by undermining support structures,” Judge Khampepe said.