“[The] Federation of Unions of South Africa welcomes that the Constitutional Court ruling gives adults, such as doctors, nurses and counsellors, who work daily with children, freedom to educate and advise on child sexuality,” said Fedusa deputy general secretary for operations Gretchen Humphries.
The heavy-handed approach of the Sexual Offences Act was particularly problematic for doctors and nurses.
“They need teenagers to be able to trust them and to approach them openly for contraceptives and treatment for STIs or HIV within a relationship of building trust as caregivers.”
The Constitutional Court confirmed a lower court’s order that sections 15 and 16 of the Criminal Law Amendment Act, which relate to sexual offences, were unconstitutional.
The unanimous judgment, written by Judge Sisi Khampepe, was published on the court’s website on Thursday.
The sections infringed on the rights of adolescents, aged between 12 and 16, to dignity and privacy, and further violated the best interest principle contained in section 28(2) of the Constitution.
Relying on expert evidence, the court concluded that the impugned provisions criminalised developmentally normative conduct for adolescents and adversely affected the very children the act sought to protect.
Criminal restrictions against sexual activity between adults and older children on the one hand, and adolescents on the other, remained.
The judgment suspended the declaration of invalidity for 18 months to allow Parliament to amend the provisions.
Khampepe ordered a moratorium on all investigations, arrests, prosecutions and criminal and ancillary proceedings regarding adolescents in relation to sections 15 and 16 of the act.
This remained until Parliament remedied the defects identified.
Fedusa vice president for gender Martle Keyter said it had to be understood that Fedusa did not conclusively condone penetrative sex between minors, but supported the ruling in its attempts to ensure that acceptable sexual activity between young people was not criminalised.
“It is also essential that those of us who are parents question the extent to which we are willing to rely on the law of this country to instil in our children the values which we uphold individually and within our families,” Keyter said.