The law providing for convicted sex offenders’ details to automatically go in the National Register for Sex Offenders is unconstitutional – because it infringes children’s rights.
On Tuesday, the Constitutional Court declared a section of the Criminal Law (Sexual Offences and related matters) Amendment Act invalid insofar as it provides that child sex offenders’ details must automatically go into the register if their victims are children or mentally disabled.
In a unanimous ruling, the court gave parliament 15 months to fix the law.
Depending on wording of the amended law, the ruling means that, although such children’s details can go on the register, this is will no longer happen automatically.
In the meantime, the law stands, but Justice Minister Jeff Radebe and the National Director of Public Prosecutions Mxolisi Nxasana were ordered to file a report to court by the end of July containing the details of all children currently on the register. The court will pass this information on those who might be able to “assist those child offenders”.
The court found that judges and magistrates should have discretion as to whether or not child offenders should have their details inserted in the register, and that these offenders should have the chance to tell the court why their details shouldn’t be included.
The case came before the Constitutional Court for confirmation after the high court in Cape Town ruled the law unconstitutional. The case, which initially started in the magistrate’s court, involved a teenager who, aged 14, raped three boys, aged between six and seven. He was convicted, sentenced and his details inserted in the register.
Nongovernmental organisations, Childline SA, the Centre for Child Law, the Teddy Bear Clinic and the National Institute for Crime Prevention and the Reintegration of Offenders (Nicro), joined proceedings.
They argued that child sex offenders should be treated differently to adults. They argued that children are still developing their moral compass, are capable of reforming and an individual approach to each child was needed. The court should, they argued, have discretion to include their details in the register – depending on their unique circumstances.
Also, the law criminalised “a broad array of conduct” – including kissing and hugging – and being included in the register not only comes with a “stigma”, but has other “seriousness consequences”, including limiting employment opportunities and fostering children in future.
The case was brought against the Radebe and Nxasana, who didn’t oppose the matter but believed the high court went too far – its judgment had extended to adult offenders too.
The Constitutional Court agreed and limited its ruling to children, finding that the law unjustifiably infringed children’s best interests.
“The child is a developing being, capable of change and in need of appropriate nurturing…to determine herself to the fullest extent and develop her moral compass,” the court held.
On Tuesday, NGOs welcomed the judgment, although director for the Centre for Child Law, Ann Skelton, raised concern that while parliament was fixing the law, children’s details would continue to go into the register.