CONSTITUTIONAL COURT OF SOUTH AFRICA Teddy Bear Clinic for Abused Children and Another v Minister for Justice and Constitutional Development and Others Case No: CCT 12/13 Date of Hearing: 30

CONSTITUTIONAL COURT OF SOUTH AFRICA

Teddy Bear Clinic for Abused Children and Another v Minister for Justice and Constitutional Development and Others

Case No: CCT 12/13 Date of Hearing: 30 May 2013

MEDIA SUMMARY

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Thursday 30 May 2013 the Constitutional Court will hear an application for confirmation of an order of the North Gauteng High Court, Pretoria (High Court) which declared certain provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act unconstitutional. The provisions were declared unconstitutional to the extent that they impose criminal liability on children between the ages of 12 and 16 (adolescents) for engaging in consensual sexual conduct with other adolescents. The application is being brought by the Teddy Bear Clinic for Abused Children and Resources Aimed at the Prevention of Child Abuse and Neglect (applicants).

The High Court found that the impugned provisions are inconsistent with the constitutional protection of the best interests of the child and found that they infringe adolescents’ rights to, amongst others, dignity and privacy. The High Court found that the impugned provisions go beyond what is necessary to achieve the primary purpose of the Act: protecting children from sexual exploitation by adults.

Before the Constitutional Court the applicants argue that the evidence establishes that the criminalisation of conduct, in which almost every adolescent participates at some stage, unnecessarily exposes adolescents to the trauma and indignity of the criminal justice system and marks them as criminals and sex offenders.

The applicants submit that, if the Constitutional Court does not confirm the unconstitutionality of the provisions, it should strike down other provisions of the Act which require the reporting of consensual sexual conduct by minors and that minors convicted of offences under the impugned provisions are placed on the National Register for Sex Offenders.

The Minister for Justice and Constitutional Development and the National Director of Public Prosecutions (respondents) deny that any of the rights cited by the applicants are infringed by the provisions. However, to the extent that any of these rights are infringed, the respondents submit that it is reasonable and justifiable. They argue that the impugned provisions serve the vital purpose of discouraging adolescents from prematurely engaging in sexual conduct which may harm their development.

The Justice Alliance of South Africa (JASA), the Women’s Legal Centre Trust (Trust) and the Tshwaranang Legal Advocacy Centre (Advocacy Centre) have been admitted as friends of the Court. JASA’s main submission is that allowing sexual penetration between adolescents is not in the best interests of the child because adolescents are unable to give informed consent. The Trust and the Advocacy Centre argue that the right to equality is infringed by the impugned provisions as it operates disproportionately against adolescent girls. Furthermore, they argue that the right of adolescent girls to access health care services, in particular reproductive health care, is infringed.