The National Prosecuting Authority (NPA) has been taking a lot of flack recently. The President suspended its boss and it has been vilified by pro-Zuma supporters for its handling of the Jacob Zuma case. So I am hesitant to add to its misery. Yet, after reading its submission to the Constitutional Court in the case of Geldenhuys v National Director of Public Prosecution (to be argued on Thursday), I have to wonder whether they could not at least have paid someone to prepare a legally coherent and constitutionally informed document to assist the highest court in the land in this case.
The document reads like a second year assignment and not like a legal document prepared by senior lawyers with at least some grasp of logic and the legal issues involved.
The case deals with an appeal of the Supreme Court of Appeal (SCA) judgment which declared invalid sections of the now repealed Sexual Offences Act which set the age of consent for sexual intercourse at 19 for same-sex sexual acts, while setting an age of consent at 16 for heterosexual sexual acts. The SCA rightly found that these sections unfairly discriminated against gay men and lesbians on the ground of sexual orientation.
The NPA concedes that these provisions had been discriminatory but argues that the age of consent for both hetero- and homsexual intercourse should be set at 18 – and not 16. At the end of last year Parliament passed the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007 which fixed the age of consent for everyone at 16 and the NPA is not happy about this, arguing that this age of consent is unconstitutional.
The NPA – in a very thinly argued submission – argues that because section 28(3) of the Constitution defines a “child” as someone under the age of 18 years and because the Constitutional Court has found that the State is under a Constitutional obligation to combat child abuse, the age of sexual consent should have been fixed at 18 and then continues:
Also worrisome is the failure by the legislator to harmonize the age of 16 years in sections 15 and 16 of Act 32 of 2007 with the other provisions in the Act. For instance, section 18 makes it an offence for a person to groom a child under the age of 18 years in order to have consensual sex with such a child. If the person then does indeed proceed to sexually penetrate or violate a child of 16 or 17 years he does not, according to sections 15 and 16, commit a crime! The same discordance is found between sections 15 and 16 on the one hand and sections 19 and 20 which deal with the using of children for child pornography and displaying pornography or child pornography to children (that is persons under the age of eighteen years).
It is unclear from the NPA submission whether it is arguing that the newly adopted provisions are in fact unconstitutional and if so which sections of the Bill of Rights are being breached, whether the Constitutional Court should declare these provisions invalid, and whether the Court should interfere with the right of the democratically elected Parliament to pass legislation on issues of public policy.
The NPA submission reads more like a document written by Doctors for Life or some other group who is arguing from a specific, highly moralistic and impractical, point of view. It equates all sex by individuals younger that 18 with child abuse, which would come as a rather big surprise to all the young people of South Africa who have had (and will continue to have) consensual sex before the age of 18.
It also seems to argue that consensual sex between individuals younger than 18 is no different from child pornography and fails to address the possible policy reasons for outlawing the manufacture and consumption of child pornography, while legalising consensual sexual intercourse between (perhaps even loving and caring) youngsters who happen to be younger that 18.
Surely the reason why Parliament made this distinction was that many young people do have sex with one another and – gasp! – even enjoy it. A law that criminalises all sex between (or with) anyone between 16 and 18 would be impossible to implement. The police would be very busy indeed if they had to run after such couples. At the same time there might well be good policy reasons to protect youngsters from the clutches of the porn industry.
It will be interesting to see how the Constitutional Court deals with this matter. I for one would be rather surprised if they take the NPA arguments – if one can call it that – very seriously.
@ UWC – there’s a student who has been murdered – “Constitutional right to life”. can we, for a second leave Zuma and NPA aside and deal with real issue.
murdered by a law student. what kind of graduates/lstudents are law lecturers producing? what principles are instilled by lecturers?
Abosh, I think your comment is somewhat unfair and not the kind that could be blamed on lecturers. Lecturers cannot be blamed for students abusing and murdering one another. If that is the case we might as well blame lecturers for the high crime rates and poverty in our country.
A lecturer does not get paid to instill social principles to students. That is the job of the students’ parents. A lecturer gets paid to teach a student. If a legal practitioner gets the law ‘wrong’ in practice, then one can maybe question his or her qualifications by looking at the university where he or she studied.
The killing of the student at university is sad and even sadder that it leads from a cycle of abuse and domestic violence. However, that cycle stems from a huge social ill in our society. A ill for which lecturers cannot be blamed.
Pierre, the link to the heads of argument on your blog, does not seem to work. I have read the 7 page head of argument by the NPA and I have to agree that it is poorly written and argued.
In the end, the best interest of the child should be of paramount importance. How would one weigh the best interest of the child notion against what is somewhat impractical to apply, like investigating all consensual sexual intercourse between 16 – 18 year olds?
I have to admit that the Sexual Offences Act of 2007 has created quite some stir in the public (like almost all legislation passed or before Parliament) as it contains multiple populist provisions which was questioned as to really enhancing victims protection measures (as outlined in its objectives). However, right now its law and lets see how it really works in practice before attacking its efficacy.
I have had the pleasure of reading the Heads on the Concourt website. My oh my…is this part of the job action by the NPA staff? Eish!
Samaita // Aug 28, 2008 at 11:28 am
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Speaking of tenders… I wont say more…
Completely off-topic, I know, but I can’t resist the temptation to remark upon the recent initiatives by the “insiles”, represented by people like Trevor Manuel & Cyril Ramaphosa, to foster a return to constitutional democracy, as opposed to the Stalinist centralism of the ANC/Cosatu/CP cabal, and to counter the corruption & cronyism of the “exiles”, represented by people like Thabo Mbeki & Jacob Zuma.
A topic you might care to address, Prof?
Are there any comments in regards to the implementation of s56 of the above act and what would sentencing amount to should someone be found guilty of the above.
example, someone is found guilty of sexual grooming, but the ‘groomed’ person is 16 years of age.
I’m a little uncertain still. Sex is legal for teenagers over 16? No wonder there are so many pregnancies and abortions!
I’ve looked at the heads of arguement and eventhough its not the best …infact, very far from good from what i’ve seen, there are certain issues raised, which are valid and needs to be addressed very urgently!
One of the somewhat dubious proposals advanced by Mr Mandela (long before he lavished honours on Colonel Ghadafi), was that the right to vote be given to children of 14. By that logic, I do not see why the age of consent should not be dropped to 12, or lower.
MDF is right.
Cmd Malema began struggling when he was eight. Why should he not have had the right, even then, also to please a young lady, to the extent she was amenable? As the ANCYL leader pointed out, coitus is in itself a revolutionary act. There is every reason to begin practicing early!
Thanks,
Mikhail Dworkin Fassbinder
March 16, 2011 at 16:17 pm
“MDF is right” ?????
Hey fatty boom-boom,
Let me tell you something,
Self praise is no recommendation.
That’s all folks!
Maggs, my step sister had a Star of David of tattooed on her left buttock. Guess how long she lasted in a Greek Orthodox primary school?
@ Gwebe (quoting Dexter)
“Black people cannot be racists, I agree. But they can be bigots, xenophobes, homophobes and anti-semites, for example.”
This kind of double-talk makes me very angry. It is no good admitting that black people cannot be racists — but then listing other traits that are almost as bad. I am convinced that, partially because of the influence of UBUNTU, black people are not capable of bigotry etc. either. (Except perhaps to the extent they have been co-opted or corrupted by whites and/or colonialists.)
Thanks.
Mikhail Dworkin Fassbinder
March 16, 2011 at 17:04 pm
Hey Dworky,
“Maggs, my step sister had a Star of David of tattooed on her left buttock. Guess how long she lasted in a Greek Orthodox primary school?”
That’s a hard one.
Send pics – maybe there’s a clue.