CASE NO: CCT___________/ 2013 HIGH COURT CASE NO: 73300/10
In the matter between:
THE TEDDY BEAR CLINIC FOR ABUSED CHILDREN First Applicant
RAPCAN Second Applicant
and
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT First Respondent
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Respondent
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FOUNDING AFFIDAVIT
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I, the undersigned,
RONALDAH LERATO KARABO NGIDI do hereby make oath and say :
1 I am an adult woman and an attorney at the Centre for Child Law, who are the attorneys for the First and Second Applicant in this matter.
2 I am duly authorised to depose to this affidavit on behalf of both the First and Second Applicants.
otherwise indicated by the context, and are to the best of my belief both true and correct.
PARTIES
4 The First Applicant is THE TEDDY BEAR CLINIC FOR ABUSED CHILDREN, a not-for-profit company duly registered and incorporated in accordance with section 21 of the Companies Act, 61 of 1973, with its head office at The Memorial Institute for Child Health and Development, 13 Joubert Street Extension, Parktown, Johannesburg.
4.1 The First Applicant had its origins more than 24 years ago in the outpatient facilities of the Johannesburg General Hospital and the Department of Paediatrics of the Medical School of the University of the Witwatersrand in response to an urgent need for medical examinations for abused children.
4.2 Currently, the First Applicant offers a full range of services for abused children and other children in need of care, including forensic medical examinations, forensic psychological counselling, other counselling (including HIV test counselling), psychological assessments, play therapy, preparation for court appearances for children and their families, social awareness and training programmes and programmes designed to divert young sex offenders away from the criminal justice system to a therapeutic environment.
5 The Second Applicant is RAPCAN, the name of which is an acronym for
“Resources Aimed at the Prevention of Child Abuse and Neglect”, a not-for- profit company duly registered and incorporated in accordance with section 21 of the Companies Act, 61 of 1973, with its head office at Waterford House, 3rd Floor, Waterford Road, Diep River, Cape Town.
5.1 The Second Applicant was established in 1989 by the University of Cape Town’s Department of Paediatrics and Child Health in response to the need for education and training in the field of child abuse prevention.
Initially it was set up as a research programme and was later attached to the Child Health Unit at the University.
5.2 It is now an independent organisation dedicated to the prevention of child victimisation and offending and the promotion of children’s rights. It operates locally in Cape Town, at provincial and national levels in South Africa, as well as in the Southern African region and internationally. The Second Applicant’s work includes primary, secondary and tertiary prevention approaches with respect to child sexual abuse, corporal and humiliating punishment and child offending, especially sexual and violent offending.
5.3 These approaches include direct support services to child victims of sexual offences at six Sexual Offences Courts in urban and peri-urban settings around Cape Town, the development of resources and best practices aimed at the extension and improvement of quality services to child victims and witnesses in the criminal justice system and the
abuse, exploitation and neglect.
6 I will refer to the First Applicant and the Second Applicant collectively as “the Applicants”.
7 The First Respondent is the MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT, cited care of the State Attorney, Pretoria at 8th Floor Bothongo Heights, 167 Andries Street, Pretoria. The First Respondent is cited as the Minister responsible for the administration of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 (“the Act”).
8 The Second Respondent is the NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS, cited in his official capacity and with his offices at VGM Building (Corner Westlake & Hartley) 123 Westlake Avenue Weavind Park, Silverton Pretoria.
APPLICATION FOR CONFIRMATION
9 This is an application in terms of Rule 16(4) of the Rules of this Court for confirmation of orders of constitutional invalidity made by the North Gauteng High Court Pretoria, per Mr Justice Rabie, on 14 January 2013. A copy of the judgment of the High Court is annexed marked Annexure “A”.
10 The High Court declared the following sections of the Act unconstitutional:
10.1 section 15 of the Act – titled “Acts of consensual sexual penetration with certain children (statutory rape)”)
10.2 section 16 of the Act – titled “Acts of consensual sexual violation with certain children (statutory sexual assault)”
10.3 section 56(2) of the Act – dealing with defences in respect of sections15 and 16 of the Act.
11 These provisions criminalise a wide range of consensual sexual activities between children of a certain age.
12 The Applicants contend that that these provisions plainly infringe a series of children’s rights under the Constitution. Moreover, they do so impermissibly and unconstitutionally, having regard to the irrational, unjustified and overbroad effect of the provisions in relation to children. The impugned provisions have the following effects:
12.1 They unnecessarily expose children to the trauma and indignity of the criminal justice system, marking them as criminals and sex offenders;
12.2 They damage children’s attitudes to sex by branding certain activities which may be a normal part of the development of adolescent sexuality as abnormal, deviant, and wrong; and
12.3 They impede children’s access to reproductive and other health care and counselling services.
their affidavits that form part of the record before the High Court.
14 By way of brief summary, however, I emphasise that:
14.1 The declarations of invalidity granted by the High Court have no impact whatsoever on the following:
14.1.1 Non-consensual acts of sexual penetration and sexual violation with any person, including both adults and children of any age, which are criminalised by sections 3 to 7 of the Act and were not challenged by the Applicants;
14.1.2 Any act of sexual penetration and sexual violation committed by any person with a child under the age of twelve, which is criminalised as a result of section 57(1) of the Act which was not challenged by the Applicants; or
14.1.3 Any case in which an adult engages in consensual acts of sexual penetration and sexual violation with children aged between twelve and sixteen years of age (the equivalent of, for example, the old offences of statutory rape and statutory sexual assault). The sections criminalising such conduct were not challenged by the Applicants.
14.2 The Applicants have challenged only the sections of the Act that criminalise consensual acts of sexual penetration and sexual violation between:
14.2.1 a child aged between sixteen and eighteen years of age and a child aged between twelve and sixteen years of age; or
14.2.2 two children aged between twelve and sixteen years of age.
14.3 The Applicants recognise that adolescents are in a special position.
Physiologically, they are rapidly developing and maturing, but psychologically they are not yet fully developed and are still vulnerable to the influence of adults.
14.4 It is for this reason that the Applicants accept that sections 15 and 16 are constitutionally permissible insofar as they criminalise the sexual conduct of adults. However, the Applicants submit that, to the extent that the sections criminalise the sexual conduct of children, they are unconstitutional.
14.5 The Applicants contend that the impugned provisions violate the following constitutional rights of children:
14.5.1 The principle that children’s best interests are of paramount importance in all matters concerning children (section 28(2) of the Constitution);
14.5.2 Children’s right to dignity (section 10 of the Constitution); and
14.5.3 Children’s rights to privacy and freedom (section 12 of the Constituton).
14.6 The High Court upheld the Applicants’ contentions in this regard.
following terms:
1. It is hereby declared that that sections 15 and 56(2)(b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the Act”) and the definition of
“sexual penetration” in section 1 of the Act are inconsistent with the Constitution of the Republic of South Africa, 1996 (“the
“Constitution”) and invalid, to the extent that they:
1.1. criminalise a child (‘A’) who is between twelve and sixteen years of age for engaging in an act of consensual sexual penetration with another child (‘B’) between twelve and sixteen years of age;
1.2. criminalise a child (‘A’) who is between sixteen and eighteen years of age for engaging in an act of consensual sexual penetration with a child (B’) who is younger than sixteen years of age and is two years or less younger than A.
2. It is hereby declared that to remedy the defects set out in paragraph paragraph 1 above, section 15 of the Act shall read as though it provides as follows:
“A person (‘A’) who commits an act of sexual penetration with a child (‘B’) is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual penetration with a child, unless at the time of the sexual penetration (i) A is a child; or (ii) A is younger than eighteen years old and B is two years or less younger than A at the time of such acts.”
3. It is hereby declared that sections 16 and 56(2)(b) of the Act and the definition of “sexual violation” in section 1 of the Act are inconsistent with the Constitution and invalid, to the extent that they criminalise a child (‘A’) who is between twelve and sixteen years of age for engaging in an act of consensual sexual violation with another child (‘B’) between twelve and sixteen years of age, where there is more than a two year age difference between A and B.
4. It is hereby declared that to remedy the defects set out in paragraph 3 above section 16 of the Act shall read as though it provides as follows:
“A person (‘A’) who commits an act of sexual violation with a child (‘B’) is, despite the consent of B to the commission of such an act, guilty of the
offence of having committed an act of consensual sexual violation with a child, unless at the time of the sexual violation A is a child.
5. The applicants’ costs of the application shall be paid by the first respondent and the second respondent jointly and severally, which costs shall include the costs of two counsel.
6. The orders in paragraphs 1, 2, 3 and 4 above are hereby referred to the Constitutional Court in terms of section 172(2) of the Constitution.
7. The Registrar of this Court is requested and directed to comply with the Registrar’s obligation in terms of Rule 16 of the Rules of the Constitutional Court to lodge with the Registrar of the Constitutional Court a copy of this order within 15 days of date hereof.”
16 The applicants now seek to have the orders in paragraphs 1 to 4 of the High Court’s order confirmed by this Court.
17 In the event that this Court were not minded to confirm these orders (or any one of them), the applicants then persist in seeking the alternative relief set out in prayer 5 of their Notice of Motion in the High Court.
INFORMATION REQUIRED BY RULE 21
18 The record before the High Court ran to approximately 540 pages. There is no portion of evidence that requires transcription.
19 In relation to the duration of the matter, I point out that the matter in the High Court involved three amici curiae and that it took three days for the matter to be
the applicants abide the decision of this Court as to whether the matter should be set down for one or two days.
20 There are no other circumstances which are relevant to the directions to be given by the Chief Justice.
WHEREFORE the applicants pray for an order in terms of the Notice of Motion to which this affidavit is attached.
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KARABO NGIDI
I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of her knowledge both true and correct. This affidavit was signed and sworn to before me at _____________________ on this the ____day of ______________ 2013, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.
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