We at WMACA are thrilled and relieved that the appeal of the state was successful against the Prins judgement

WMACA and other children’s rights organisations viewed the ruling of the Western Cape High Court on 11 May with the deepest concern and called on the Department of Justice and Constitutional Development, Parliament and the NPA to appeal the decision as soon as possible to ensure that current convictions remained in place.

 Now we call on both the Department of Justice and Constitutional Development, as well as the Justice Portfolio Committee, for greater public participation to review the entire Sexual Offences Act to ensure no possible loopholes remain and that no sexual offender will get away with his or her crimes.

WMACA as members of the Shukumisa Campaign endorses the following press release by:

Lawyers against Abuse/ Women’s Legal Centre

 We strongly condemn the judgment of 11 May 2012 in the Western Cape High Court, which has the implication that a number of crimes in the Sexual Offences Act do not disclose offences.

 It is of paramount importance that the operation of this judgment be suspended. The Sexual Offences Act is a key element of protection for victims of sexual violence, and a leading example of such legislation on a global scale. To prevent the operation of these offences, including the very serious crimes of; sexual assault, compelled sexual assault, compelling children to witness sexual acts, exposing children to pornography, sexual grooming of children, and certain sexual offences against mentally disabled people; is unlawful, potentially catastrophic, and in violation of a number of constitutional rights.

 1)      We believe that the court erred in its interpretation of the principle of legal certainty. The fact that the Act does not contain specific penalty clauses is not fatal to the individual offences. This is supported by the principles of statutory interpretation, a contextual reading of the authorities and the general provisions in the Act dealing with factors to be considered by a court when passing sentence. These all clearly point to an intention of the legislature that a court would always be able to hand down sentence. In fact, the High Court in Kwa Zulu Natal came to the opposite conclusion to the Western Cape High Court.

 2)      Gender-based violence and the abuse of women and children is rife in South Africa. To prevent the operation of the Sexual Offences Act on the range of crimes specified is to leave victims without the protection of the law at the time when they most need it. Furthermore, the judgment could operate to allow convicted and dangerous perpetrators to be released from jail, putting others at risk.

 3)      This judgment has an impact on a range of constitutional rights, including the rights of children (which the Constitution states are paramount), the right to be free from violence, the right to dignity and freedom and security of the person, and the right to access to justice.  

 We have called on the legislature to remedy the perceived loopholes in the Act as a matter of urgency. We furthermore support the Shukumisa campaign’s call for increased participation for civil society in this process.

We at WMACA are outraged, extremely angryand disallusionned after a High Court ruling highlighted a fatal omission in the new Sexual Offences Act. We and other childrens rights groups have been warning the Department of Justice since the Act was introduced that there were serious inadequacies which needed to be addressed but no attempt has been made to rectify this situation.

All our work at trying to secure convictions and severe sentences  for child  sexual offenders is in jeopardy unless Parliament and Ministers take action immediately to mathe necessary amendments and wesist that the entire Act be reviewed if we are to eradiciate the scourge of rape and all sexual offences in our society.

“Experts have warned that anyone accused of committing a sexual assault in terms of the act could now apply to have their charges quashed on the basis of the court’s ruling.

In addition, those who have already been convicted could apply to have their convictions set aside.

In effect, the judgment means that anyone accused of crimes in terms of certain sections of the new Sexual Offences Act cannot be formally charged – because legislators omitted to prescribe sentences for at least 29 offences listed in the act.”

Taken from Saturday Star – Journalist – Fatima Shroeder

www.shukumisa.org.za

31 May 2011

On Children’s Day don’t forget that teenage girls are still children who deserve protection

Teenage girls are in the public spotlight where they stand accused of deliberately falling pregnant to abuse the child support grant system. There is no solid evidence to support this claim, which only stereotypes girls and hides the link between sexual violence and teenage pregnancy.

Research by the Medical Research Council into teenage pregnancy found that 32% of the pregnant girls versus 18% of the non-pregnant girls in their study reported their first sexual experience as having been coerced. The study also found that girls whose first sexual encounter was not consensual were 14 times more likely to later have a teenage pregnancy. 

Given this finding, it is of great concern that in terms of s54 of the 2007 Sexual Offences Act, all girls under the age of 16 who fall pregnant must be reported to the police. This is because their pregnancy is obvious proof that a sexual offence has been committed against a child. If the police investigation shows that the girl consented to the sexual relations which resulted in her pregnancy, then she can also be charged in terms of s15 of the Sexual Offences Act. (This provision allows for the prosecution of children under 16 who have consensual sex with one another.)

As South Africa celebrates International Children’s Day on 1 June, the Shukumisa Campaign reminds the public and the media that girls under the age of 18 are children and protected by section 28 of the South African Constitution. This states that a child’s best interests are of paramount importance in every matter concerning the child. Informed public debate around the causes of teenage pregnancy is in girls’ best interests – but criminalising their sexual behaviour and subjecting them to court processes is not.

We also call on the Department of Justice to repeal s15 of the Sexual Offences Act.

Note: Sections 15 and 16 of the Sexual Offences Act are being challenged by the Teddy Bear Clinic and Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN). The Women’s Legal Centre and the Tshwaranang Legal Advocacy Centre have been admitted as amicus in the matter.

For more information please contact: 

Lisa Vetten, Tshwaranang                           0828226725

Vivienne Mentoor-Lalu, RAPCAN              0824940788