By Duncan Wild on 3 January 2013 The case involves a confirmation of a finding by the Western Cape Division of the High Court of South Africa, Cape Town (“Cape Town High Court“) that section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“Sexual Offences Act“) was unconstitutional.  The section provides that the details of a person convicted of a sexual offence under the Sexual Offences Act must be entered into the National Register of Sexual Offenders (“Register“). In the Magistrate’s Court, the applicant, a fourteen year old boy at the time, was convicted of three counts of rape of three minor boys, and one count of assault with intent to do grievous bodily harm, after pleading guilty. In addition to a period of imprisonment the Magistrate’s Court ordered his name be entered into the Register. The matter then went on automatic review to the Cape Town High Court. The High Court, of its own accord, asked for representations from National Prosecuting Authority and the Regional Magistrate as to whether an order under section 50(1) that a sexual offender’s details be entered into the Register where the convicted person was a minor and tried under the Child Justice Act 75 of 2008(“CJA“). 

The Cape Town High Court found that the consequences of a person’s details being entered in the Register were particularly serious, details of the crime would have to be dislcosed in certain circumstances, and would have consequences on that person adopting a chile and on various employment options, particularly relating to the care of minors or the mentally disable. On the other hand the CJA, as well as section 28 of the Constitution, provides that the best of interest of the minor is paramount, and where they are accused of criminal activity, must be protected from maltreatment, and the emphasis should be on restoring the child to become law abiding adult. The Cape Town High Court found that, generally, the inclusion of the details of a person who has been convicted of a sexual offence is a justifiable limitation on that person’s rights, in order to protect other children from that person. However, where the offender is themselves a minor, the balance of justification may be shifted. It was important to the High Court that no discretion is available, and that regardless of the type of sexual offence or the circumstances of that offence, the offender’s details must be entered in the Register. As the Sexual Offences Act includes a large number of offences, some of which are less serious than others, and there was no proper opportunity for the offender to make representations on this issue, the section was found to be overbroad and unconstitutional.

The High Court found that there was no legitimate constitutional purpose in preventing a Court from considering all the relevant factors to decide whether a particular person’s inclusion in the Register would in fact fulfil the purpose of protecting the dignity, freedom and physical integrity of children and the mentally disabled against sexual abuse and exploitation. In the case of the applicant, the Court found that the sentences imposed were just, but found that section 50(1) was unconstitutional to the extent it did not provide a presiding officer with a discretion to decide whether it was appropriate to enter a person convicted of a sexual offence into the Register. The Cape Town High Court suspended its order for a period of 18 months in order to allow Parliament to rectify the Sexual Offences Act, but that in the mean time a subsection be read into the Sexual Offences Act to allow a presiding officer, “on good cause shown” direct that the details of a person convicted of a sexual offence not be included in the Register. The Constitutional Court will have to consider whether this declaration of invalidity was properly made.

Post updated after 6 February 2014 order requiring the applicant’s identity be kept confidential. Order available here. .