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It has been a long year, with so many political and constitutional twists and turns that it sometimes seemed hard to keep track of events and of who is up and who is down in our politics. The latest seemingly outrageous decision of a Parole Board to release two of the Waterkloof 4 killers to house arrest is just the latest in a long line of questionable decisions made this year by various officials.

I tried to ascertain – by reading the relevant sections of the Correctional Services Act – whether the release of the 2 Waterkloof killers were unlawful, but that Act is not easy to understand and I am just about to embark on holiday and, for the time being, was defeated by the complicated provisions of that Act.

What did strike me is the manner in which this case has been reported in especially parts of the Afrikaans media. Unlike with Schabir Shailk, where the reporting focused on the possible abuse of power in ordering Shaik’s release, some Afrikaans media outlets have been treating this case as if the Waterkloof killers have been the victims of a terrible injustice. How the cold blooded killers of a homeless man can ever be seen as victims is beyond me. I guess sometimes in our society race and language solidarity trumps everything else – including considerations of justice.

In any case, this is probably my last post for the year. I will be back early in the new year. Hope all readers of this Blog have a good holiday.

After the local government elections, most of us thought that we would not have to talk much about sanitation for a while. After all, the DA – under new mayor Patricia de Lille – has done the right thing by agreeing to enclose the open toilets at Makhaza. The ANC – after a high profile visit by Julius Malema and other ANC leaders to Viljoenskroon – promised that heads would roll about the ANC’s own open toilet scandal and then proceeded to pretend to the cameras that they were themselves helping to enclose those toilets. (Of course, Malema never said what he meant with his promise that heads would roll – maybe he meant they would roll in money or tenders.)

Alas, this morning the front page of The Times newspaper printed a picture of rows and rows of toilets in the veld near the Free State town of Harrismith below a picture of similar rows of toilets erected by the apartheid government in a field near Letsitele in Limpopo.

The newspaper also reported that ANC led Maluti-a-Phofung Municipality in Harrismith is now charging the poor up to R5000 for a plot of land with a flushing toilet on it. For some inexplicable reason, the municipality which erected more than 1000 lavatories on land apparently earmarked for low cost housing, is now insisting that people who qualify for such housing pay for the land – and the toilets.

The Times reports that despite numerous enquiries, municipal officials could not explain how or why more than 1000 toilets were erected on one field across the road from Tshiame township almost three years ago. Ward councillor Moeketsi Mofana is quoted as saying: “We are selling them. I’m not sure about the prices, it will depend on the size of the stand. They have to be sold. The money used to develop the site has to be recouped. For now there are no RDPs [low cost houses] in the pipeline. The priority is to move and complete this project.”

Now, why would they be selling these pieces of land attached to toilets? Who decided to build those toilets in the open veld in the first place and who benefited financially from this apartheid-style decision? Who received the tender for that project and how much was it worth? Was corruption involved in the awarding of the tenders and was the price so inflated that the municipality had no money left to build houses to accompany the toilets?

And in terms of what policy and legal framework are they now trying to sell these toilets to the poor people of Maluti-a-Phofung municipality? As far as I am aware there is no government policy in place that allows for the selling of such toilets-only pieces of land to indigent residents on an ad hoc basis. And who is going to profit from this scheme? Will the money be used to buy a new car for the mayor, perhaps, or will the money be used to finance an inauguration party for the major or a refurbishment of his office?

On its own this story would have been shocking. After all, the ANC professes to want to serve the poor, while our Constitution places a duty on all spheres of government to take reasonable steps to provide more and more people progressively with access to housing, water and sanitation. And was it not the National Party – who treated black South Africans in a way that denied them their basic human dignity – who became notorious for building rows of toilets in a veld in Limpopo?

But then I read that Julius Malema – the professed champion of all champions of the poor –  allegedly paid R78 000 in cash for a three-day frolic with five friends at the “colonial” and ultra-luxurious five-star Royal Malewane game reserve next to the Kruger National Park. His luxury adventure occurred shortly before his re-election as ANCYL president three weeks ago in an election campaign which saw him repeatedly sell himself as a champion of the poor. Malema earns about R40 000 a month as ANC Youth League President, so this cash must have been acquired in a manner other than from being paid a salary for work done.

When asked for comment by reporter Jacques Dommisse (JD), ANC Youth League spokesperson Floyd Shivambu (FS) responded as follows:

FS: Fuck you.

JD: Say again?
FS: I said: “Fuck you”

JD: Are you swearing at me?
FS: Yes.

JD: Why are you doing that?
FS: What is your problem?

JD: I have no problem.
FS: Fuck you. Fuck off, ok.

Am I the only person to see in Mr Shivambu’s response also a metaphor of the attitude of a sections of the ANC – I am talking about the ANC aligned tenderpreneurs and pseudo revolutionaries, of which Mr Malema is a prime example – to the poor people of Maluti-a-Phofung Municipality and many other communities in South Africa?

To me the juxtaposition of these two events demonstrates the absurdity and utter bankruptcy of much of the political “debate” in South Africa. While we endlessly debate whether Julius Malema should be found to have uttered hate speech when he sang dubul’ibhunu, or whether his Gucci-revolutionary slogans about the nationalisation of the mines and the expropriation of white-owned land without compensation is acceptable, poor people wait in vain for the better life they have been promised, while well-connected individuals become instant millionaires through tenders and bribes (skimming off tax money that could have been used to improve the lives of our people).

While we should be debating how we can stop the looting of state resources and tenderpreneurial corruption, how we can hold politicians to account for stealing from the poor, how we can secure the successful prosecution of corrupt politicians and officials, and how we can ensure that taxpayers money is spent wisely to help improve the lives of the poorest of citizens who rely on the state for their very survival, we get side-tracked by the smoke-and-mirrors sideshows put on by people like Mr Malema.

While journalists should be working day and night to try and find out how Julius Malema made his millions, they sit around at ANC Youth League press conferences and laugh along while Mr Malema provides them with entertaining soundbites that will help to sell the morning newspapers. While law-enforcment officials should be investigating and arresting tenderpreneurs every day, they investigate the Public Protector instead.

While our government haemorrhages money because of unwise or corrupt decisions taken by underqualified or corrupt deployed officials and politicians, money that could have been spent to improve the life chances of those who have very little hope of ever finding gainful employment, the ANC seems to be focused almost entirely on who will challenge whom for which position at the ANC conference next year.

As Samantha Vice might not have asked: “How do we live in this strange place when all most of us seem to be obsessed about are the things that do not bear directly on improving the lives of our people?” How can we expect citizens to become active and to take charge of their daily lives when we all entertain them with the bread-and-circus of ANC internal politics and the latest deliberately outrageous utterances of millionaires like Malema?

When South Africa became a democracy in 1994, the Appeal Court in Bloemfontein (now renamed the Supreme Court of Appeal) was the highest court in the land. However in the last 40 years of the apartheid era the Appeal Court (AD) was not much trusted by anyone with a progressive bone in their body. Even among traditional white liberals the AD lost its lustre during the nineteen fifties when the National Party packed an enlarged court with its yes-men to ensure that the AD would not block the moves to disenfranchise even the limited number of black South Africans who could vote in the Cape Province.

During the nineteen eighties, the AD was, to put not too fine a point on it, an almost entirely reactionary court who overturned many decisions by lower courts who – applying Administrative Law – had invalidated many draconian emergency regulations used by the government to ban, detain and censor opponents. Even after the 1996 Constitution bestowed jurisdiction regarding most constitutional issues on that court, many of its judges seemed to do whatever they could to avoid referring to the Constitution altogether, and tried to insulate the common law – which they saw as their holy domain – from the salutary influence of the Constitution.

This anti-transformative attempt to “protect” the common law from the Constitution was nipped in the bud by the Constitutional Court in the Pharmaceutical Manufacturers case. Many good appointments have also been made since to the SCA (along with a few old guard appointments) which has softened the anti-constitutional image of that court. The upshot is that the SCA now sometimes hands down decisions in the constitutional arena – the Mazibuko case dealing with water rights is a good example - that are more far reaching and progressive than the decisions of the Constitutional Court.

There still seems a to be residual reluctance at the SCA to acknowledge the full effects of section 39(2) on the common law, but this reluctance is shared by many other lawyers and judges. (Section 39(2) states that when interpreting legislation or developing the common law or customary law, judges must take into account the purport, spirit and object of the Bill of Rights.)

In the Pharmaceutical Manufacturers case the Constitutional Court rejected the SCA view that despite the Administrative Justice clause in the Constitution, common law grounds of review could still be relied upon by a litigant, and if this was done, the matter had then to be treated as a common law matter and not a constitutional matter. Justice Chaskalson wrote in that case:

I cannot accept this contention which treats the common law as a body of law separate and distinct from the Constitution. There are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.

This passage, read with section 39(2), means that when dealing with almost any aspect of our law - contract, delict, company law, banking law, family law, you name it - a lawyer might be able to raise a constitutional issue, and the case might well end up in the Constitutional Court. Given this legal reality, it has long been suggested that the Constitutional Court should become the highest court for all legal matters in South Africa. At present the Constitution states that the Constitutional Court is the highest court in all constitutional matters and “may decide only constitutional matters, and issues connected with decisions on constitutional matters”.

The Constitution Seventeenth Amendment Bill, aspects of which I discussed earlier this week, now proposes that the Constitutional Court becomes the apex court of South Africa and that it should be the highest court in the Republic for any matter. The proposed amendments to section 167(3) of the Constitution, state, inter alia, that the Court may decide constitutional matters on appeal or directly and “any other matter, if the Constitutional Court grants leave to appeal that matter on the grounds that the interests of justice require that the matter be decided” by that Court.

If passed, this would mean that one would be able to approach the Constitutional Court on appeal on any matter – even if that matter does not raise any obvious constitutional issue. The Constitutional Court will have no duty to hear that matter – even if there were good prospects for success – but would be able to decide to hear the case if the Court felt that it was in the interest of justice to do so. In other words, the amendment would give the Constitutional Court a very wide discretion to hear or not to hear non-constitutional appeals from the SCA (if they believed this was in the interest of justice).

Opponents of this amendment argue that it would be a mistake to extend the jurisdiction of the Constitutional Court in this way. It is a specialised court, they argue, and its judges lack the necessary legal skills and knowledge in specialised areas of the law such as Banking Law, Company Law or Trade Mark Law. Others also argue that the Court will lose its specialised character as it will be flooded by appeals and will have no time carefully to consider important constitutional issues that may have far-reaching political consequences. This, so the argument goes, will affect the quality (and probably the length!) of Constitutional Court judgments.

I am not persuaded by these arguments for many of the reasons raised above. The Constitutional Court already has jurisdiction to deal with all aspects of our law if it touches on the Constitution. A clever lawyer with the necessary resources and a working knowledge of the Constitutional Court’s jurisprudence would be able to turn almost any case dealing with the interpretation of legislation or the consideration of the common law or the customary law into a potential constitutional matter.

The fact that this does not happen that much, must serve as a rather damning indictment of many South African lawyers who are often sadly parochial, complacent and also uninformed about the very basic architecture of constitutional adjudication. Many lawyers believe that if they specialise in commercial law, say, they do not really have to know anything about the Constitution. (There are of course notable exceptions to this generalisation.) Clients often do not realise that they should seek out lawyers who are capable of using the Constitution as this will improve the legal representation they are paying for.

But lawyers are often encouraged to think in this way by those who teach them. Although some colleagues at various law schools in South Africa who teach Private Law and Commercial Law subjects do engage energetically with the Constitution, others eschew proper engagement with the way in which the Bill of Rights may potentially affect the part of the law that they are ”experts” in, often dismissing the Constitution in a lecture or two or ridiculing the Constitutional Court for allegedly messing up the magesterial common law.

If the Constitutional Court can devise an efficient system that would allow a conference of, say, 3 judges, to deal preliminary with all applications for leave to appeal in terms of section 167(3) in order to decide whether it might be in the interest of justice to hear the case, and if the Court as a whole does not take on too many cases but uses its discretionary jurisdiction wisely, I can see no reason why the Constitutional Court should not become the highest court for all matters.

The proposed section 167(3) makes clear that one would never be able to approach the Constitutional Court directly on a non-constitutional matter, so the Constitutional Court will always have the benefit of having access to a judgment of a High Court and the SCA when it considers a case. It will then have to decide whether it is in the interest of justice to interfere with the SCA judgment, which will often be the case only where the SCA had not considered the wider effects of the legal rule on ordinary human beings.

There will be advantages to such a system. It will confirm in a very tangible way that South Africa only has one system of law. It might force lawyers out of their comfort zones to engage more intelligently and in an informed manner with the Constitution as they might now consider the possibility of a further appeal to the Constitutional Court – even in so called non-constitutional matters relating to commercial law or private law – and might realise that the Constitutional Court might raise Constitutional issues which have to be answered properly if the best intersts of their clients are to be served.

Often the application of seemingly neutral legal rules – contained in legislation or in the common law or customary  law – affect the human rights of individuals. A truly transformed legal system will have to engage with this reality and will have to re-consider the stubborn belief in the neutrality of legal rules. If we are going to transform the legal system to bring all legal rules in line with the spirit, purport and object of the Bill of Rights, then lawyers, legal academics and judges will all have to play their part. These proposed changes might well begin to force them to do so.

There is a paradox at the heart of our constitutional democracy. While political parties play a pivotal role in any well-functioning constitutional democracy, powerful political parties like the ANC – with a strong culture of discipline and a belief in “democratic centralism” - also pose a serious threat to the health of any constitutional democracy.

In a constitutional democracy, voters vote for the political party of their choice. In our system, the representatives of political parties are thus elected to Parliament to represent the interest of voters and the leader of the majority party (or the largest party in the National Assembly) is elected as the President of the country.

Our system of democracy cannot operate without the presence of political parties and it is therefore not surprising that one of the founding provisions of our Constitution states that South Africa is a democratic state founded on the value of universal adult suffrage, a national common voters roll, regular elections and “a multi-party system of democratic government”.

In South Africa at the national and provincial level we do not vote for individual people who happen to represent a specific political party. We vote for political party of our choice and that political party decides in any way it deems fit who should appear on the electoral lists and thus who will represent the party in the various legislatures. Members of the leadership of the majority party usually then also become members of the executive.

But our Constitution does not explicitly regulate the relationship between the extra-parliamentary wing of the political party (in the case of the ANC that would be the NWC, the NEC and the “top six” of the ANC) and the intra-Parliamentary and intra-executive wings of the party.

Because we vote for a party and not an individual, members of the legislature and executive must broadly adhere to the policies of the political party they belong to. Members of the legislature do not have a free mandate to vote according to their conscience (if any). However, and somewhat paradoxically, these members have been elected to represent the interest of the voters in the legislature and the executive: they were not elected to present merely the interests of the political party they belong to.

A balance need to be struck between the need to follow party policy and the need to represent the voters. On the one hand, public representatives must be guided by the policies and decisions of their parties. On the other hand, when they are remote-controlled by unelected extra-Parliamentary forces they are not representing the voters as they are constitutionally required to do. Where members of the legislature or the executive do not in fact make any independent decisions but only execute decisions of the extra-Parliamentary leadership of the political party, the formal structures of the constitutional state are fatally undermined. Then we do not have a fully functioning constitutional democracy anymore but rather we are veering towards becoming a party autocracy.

The heart of our democratic system is supposed to be the National Assembly, but if the ANC members of the National Assembly as well as the Cabinet Ministers are mere appendages of the extra-Parliamentary wing of the ANC then the National Assembly and the Executive become mere rubber stamps for decisions taken by a body that is not democratically elected. Instead of being governed by those representing the more than 10 million voters who voted for the ANC, we are then governed by those who were voted into office by 2400 delegates at Polokwane.

Provisions requiring Parliament to facilitate public involvement in the law making process and provisions requiring members of the executive to be accountable to the legislature then become meaningless as both the majority of members of the legislature and the cabinet are then only accountable to the ANC leadership which was not elected into office by the voters. In our system, it is always going to be difficult to strike the right balance between the extra-Parliamentary and the intra-Parliamentary and intra-Executive wings of the majority party.

Former President Thabo Mbeki was accused of concentrating too much power in the hands of the Presidency and of ignoring the extra-parliamentary wing of the ANC – and he was unceremoniously dumped because of this. Now, perhaps because President Jacob Zuma is fearful that he will be dismissed by his own party, the power has swung too far in the other direction. Nothing demonstrates this better than the manner in which various intra- and extra-Parliamentary leaders of the ANC dealt with the Trevor Manuel letter to Jimmy Manyi. As Stephen Grootes noted in an article in The Daily Maverick:

It really is an interesting illustration of how politics works in this country. Last week, after the publication of the Manuel letter, you couldn’t get a minister to comment on this for love or money. Suddenly the NWC meets, and Manyi gets cabinet’s full backing. It really is just about politics, and who is in favour and who is not. Sorry, we didn’t mean to sound surprised.

There is a real danger lurking in this development. The fact that the ANC adheres to the principle of democratic centralism (itself a highly dubious and undemocratic principle), which requires all members to toe the party line once the party has spoken, coupled with the infighting and factionalism within the ANC which leads to a tendency of representatives not to want to make any decision or take any public position until the official line has been communicated from Luthuli House, inevitably leads to a hollowing out of the constitutional institutions such as the national legislature and the national executive.

This state of affairs is not good for our constitutional democracy. If Luthuli House in effect runs the country, the role of political parties other than the ANC becomes irrelevant. This means that the votes cast for opposition parties become completely irrelevant and do not count. At least at present some of the extra- and intra system members of the ANC overlap – for example the President of the ANC is also the President of the country – which mitigates the problem. This does not address the problem of undermining opposition parties, but it does make the whole system slightly less undemocratic.

That is why it was such a bad idea for President Thabo Mbeki to stand for a third term as President of the ANC. Given our system, if President Mbeki had won at Polokwane he would have been able to run the country from Luthuli House and this would have been even more undemocratic than the present system because Mbeki would not have been directly or indirectly elected by the voters (as President Jacob Zuma at least is) yet, through Luthuli House, he would have been able to run the country merely because just more than 2000 people had voted for him at an ANC conference.

There is often a difference between what constitutes unethical behaviour and what constitutes criminal behaviour.  Personally I believe that it is unethical to be racist, sexist or homophobic.  Supporters of Eugene Terreblanche  might disagree, but I am pretty confident that I would be able to defend my ethical stance. However there is no general criminal prohibition in South Africa against racism, sexism and homophobia. (If there was, Jon Qwelane would be in jail and not the South Africa’s ambassador in Uganda remaining silent while gay activists are murdered there.)

This distinction came to mind  when I read about the rather outrageous actions of Christopher Taute, the executive mayor of the Hessequa Municipality in the Western Cape. He has written a letter (on the official municipal letter head) asking companies to sponsor the ANC election campaign in order to retain “good relationships with (the) ANC-controlled council”.

The letter reads in full:

Hessequa Municipality
Office of the Executive Mayor

2011-01-20

Dear Manager/Owner,

I herewith wish to request your company for a donation to the ANC for our election campaign. As you currently have contracts with our municipality – which were made possible by this ANC-run council, I would like to make a friendly request that you contribute a donation to the ANC for the election campaign, in order to continue building on your good relations with this ANC-run council. If you would like to make a donation to our election campaign, it would be appreciated if you could do so by cheque, made out to the “ANC.”

Best wishes
CP Taute
Executive Mayor

Now, Mayor Taute will argue that what he did was not a criminal offense. Yes, his letter hints that a donation to the ANC might assist a business in retaining contracts with the municipality. Yes, the letter says that a business who does not donate money to the ANC might not build on their good relationship with the municipality. Yes, the mayor is the political head of the municipality and probably has informal links with the tender committee who makes decisions about such contracts. But nowhere does it state that a business will not be given a contract unless it donates to the ANC. One could therefore argue that the “request” was not unlawful.

Here is why.

Section 3 of the Prevention and Combating of Corrupt Activities Act no 12 of 2004 states that:

Any person who directly or indirectly accepts or agrees or offers to accept a gratification from any other person, whether for the benefit of himself or herelf or for the benefit of another person…. in order to act personally or by influencing another person so to act in a manner that amounts to the illegal, dishonest, unauthorised, incomplete, or biased… carrying out or performance of any powers, duties or functions arising out of a constitutional, statutor. contractual or any other legal obligation that amounts to the abuse of a position of authority; a breach of trust; or the violation of a legal duty or a set of rules; designed to achieve an unjustified result; or that amounts to any other unauthorised or improper inducement to do or  not to do anything  is guilty of the offence of corruption.

It might well be that the mayor intended to indicate to the businesses that if they donated money to the ANC he would try and influence the tender committees (appointed by the ANC municipality) to ensure that they continue receiving tenders from the municipality. Given the dominance of the ANC members on the tender committees and the phrasing of the letter, one would be forgiven for coming to just that conclusion. Attempted corruption might well have taken place here. That, at least, is how it appears on the available evidence.

The letter is, however, sufficiently ambivilant to allow for the argument that the state would not be able to prove beyond reasonable doubt that such an intention to solicit a bribe indeed existed. In the absence of other evidence about the way in which tenders have been dealt with in that municipality and the exact donations made to the ANC in the past by businesses who had obtained tenders with the municipality, a successful prosecution would therefore seems unlikely.

This does NOT mean that what the mayor did was acceptable. In fact it was despicable and morally (if not criminally) corrupt. The letter suggests that the mayor believes that there is nothing wrong with giving the impression to businesses that they would obtain tenders with the municipality if they donate money to the ANC. In other words, the mayor is suggesting that the ANC is prepared to sell its soul for a few Rand. It suggests that the ANC is prepared to make decisions that are not in the best interest of the inhabitants of those towns if sufficient money is donated to the party.

This undermines the authority and legitimacy of the ANC. In the long term, it will erode the standing of the ANC in the community and will contribute to anger and frustration. The next time that municipality fails to deliver services in the manner it is required to do, people will wonder whether this is because an inept business was givena  tender merely because it donated money to the ANC. The next time the municipality states it has no money to upgrade roads, to build houses, to provide sanitation, people will begin to wonder whether this is becauise too much money was paid to a business who had inflated its tender but was awarded that tender in any case because that business donated money to the ANC.

In other words, the ANC leadership has a duty to intervene and to condemn this behaviour of the mayor. It also has a duty to take steps to discipline the mayor. If it does not, it will signal that to it, money is far more important than service delivery and the needs of the people it professes to serve.

The National Prosecuting Authority’s decision to charge with statutory rape all three of the pupils filmed having sex at Jules High School in Johannesburg, apparently to make an “example of them” in order to deal with a “national epidemic” of underage sex at schools, raises some interesting questions.

The decision to charge all three for contravening section 15 of the Sexual Offences Act was taken after the 15-year-old girl, who had claimed that she had been drugged and raped by two boys, aged 14 and 16, on the sports grounds of Jules High School on November 4, allegedly “confessed” that the sex was consensual.

Section 15 of the Act states that:

(1) 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. (2) (a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the National Director of Public Prosecutions if both A and B were children at the time of the alleged commission of the offence: Provided that, in the event that the National Director of Public Prosecutions authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1). (b) The National Director of Public Prosecutions may not delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.

For the purpose of section 15 a child is defined as someone older than 12 but younger than 16. This section makes clear that it is a criminal offence for a teenager younger than 16 to have sex with another teenager younger than 16 – even when the sex is consensual. The National Director of Public Prosecution (NDPP) is given a discretion on whether to charge such children with statutory rape or not, presumably to prevent our courts from being flooded with cases of consensual teenage sexual conduct. However, the NDPP does not have a discretion to charge only the boy or boys and not the girl involved in the alleged offence.

Normally the NDPP will not charge the perpetrators in a case like this as the Child Justice Act allows him to “divert” a matter involving a child who is alleged to have committed this offence if: (a) the child acknowledges responsibility for the offence; (b) the child has not been unduly influenced to acknowledge responsibility; (c)  there is a prima facie case against the child; (d) the child and, if available, his or her parent, an appropriate adult or a guardian, consent to diversion; and (e) the prosecutor indicates that the matter may be diverted.

Diversion programmes must, where reasonably possible, impart useful skills; include a restorative justice element which aims at healing relationships, including the relationship with the victim; include an element which seeks to ensure that the child understands the impact of his or her behaviour on others, including the victims of the offence, and may include compensation or restitution; be presented in a location reasonably accessible to the child; be structured in a way that they are suitable to be used in a variety of circumstances and for a variety of offences;  be structured in a way that their effectiveness can be measured; be promoted and developed with a view to equal application and access throughout the country, bearing in mind the special needs and circumstances of children in rural areas and vulnerable groups; and involve parents, appropriate adults or guardians, if applicable.

The first question that arises is why this matter was not diverted. Was the decision taken for political reasons after the initial outcry that followed the lack of action against the two boys by the prosecuting authority? In any case, once the decision was taken to charge the boys, the NDPP had no choice to also charge the girl. I assume the magistrate will now decide on this and that — unlike the NDPP – the magistrate will apply the Child Justice Act and divert the case.

Second, one might ask whether the criminalisation of consensual sex between children older than 12 but younger than 16 is actually constitutional. Section 12(2) of the Bill of Rights states that: “Everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction; (b) to security in and control over their body”. This must be read with section 28(2) of the Bill of Rights which state that: “A child’s best interests are of paramount importance in every matter concerning the child”.

It is clear that section 15 of the Sexual Offences Act limits this right to control one’s own body. The question would be whether the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. This will hinge on whether there is a valid reason for the limitation and whether this reason is pressing enough to outweigh the considerable limitation on the rights of teenagers to have consensual sex.

Why did the legislature criminalise sex between teenagers? Was it to try and impose a certain narrow moral attitude about teenage sexuality on everyone or was it to protect children? One argument would be that given the special vulnerability of teenagers and the peer pressure they face, it will always be difficult for them to give informed and voluntary consent to sex. It would therefore be necessary to criminalise consensual teenage sex.

Our courts might well accept this argument, although I am far from convinced that this is the real reason for the ban. Surely it is impossible to make broad generalisations like this. Would it not depend on the teenagers involved and would the true nature of the consent not hinge on many factors, including the context within which the sex occurred and the nature of the relationship between the consenting teenagers?

Is it not more likely that because our society is uncomfortable with teenage sexuality the legislature had decided to criminalise teenage sexuality in a vain attempt to curtail it? Personally, it seems to me as if the criminal law is not the right mechanism to deal with teenage sexuality. Teenagers will have sex — whether the law prohibits it or not. By criminalising consensual sex between teenagers, are we not making them more vulnerable instead of less vulnerable by turning all sexually active teenagers into potential criminals?

Should our society not deal with this issue in a more nuanced manner? Surely there are many reasons why teenagers are having sex so young? The absence of strong adult role models, social and economic conditions, the sexualisation of our society by the media, the fact that some teenagers grow up faster than before may all contribute to this. Surely the criminal law is not going to address this? It seems to me that the criminalisation of all teenage sex is profoundly anti-child and does not take into account the best interest of children. I am not sure, however, that the Constitutional Court will see it in the same way and it might well endorse this rather draconian piece of legislation.

If there is indeed an epidemic of teenage sex, the criminal law is not going to deal with it. Given the fact that teenagers will have sex, is it not better to talk more openly about sex and to help teenagers to deal with the possible consequences of having sex. That is why condoms should be freely available in schools and why HIV prevention programmes should be run in our schools to empower teenagers to make sensible decisions around their sexuality. That is also why education on respect for women and the equality of men and women as well as the consequences of sex should be part of the high school curriculum.

Merely criminalising consensual teenage sex, is like putting a plaster on a freshly amputated leg. This law makes no sense to me and seem to have far more to do with the moral scruples of adult law-makers (who wish to hide from the fact that teenagers are having sex) than with the lived reality of teenagers and with their true needs and concerns. The fact that there is now an outcry about the decision to charge the three teenagers, it seems to me, demonstrates that this law is an ass and needs to be rethought.