Equal Education welcomes High Court ruling declaring certain provisions of the Sexual Offences Act unconstitutional

Home | Equal Education welcomes High Court ruling declaring certain provisions of the Sexual Offences Act unconstitutional

Equal Education (EE) congratulates the Teddy Bear Clinic for Abused Children and RAPCAN for their legal victory in the North Gauteng High Court. The organisations were represented by the Centre for Child Law. The High Court ruled that sections 15, 16 and 56(2)(b) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act were inconsistent with the Constitution and invalid. We welcome the ruling which will aid in destigmatising consensual sexual activity between young people. On the basis of this ruling Equal Education renews its call on Minister Motshekga to commit to condom provision in schools.

·   Unprotected sex is dangerous for young people, but sexual experimentation is an inevitable, and a normal aspect of adolescence

There can be no tolerance for non-consensual sexual activity, particularly if it involves a teacher and a learner. However, most young people engage in some form of consensual sexual activity and a significant portion are engaging in sexual penetration. When this occurs in an unprotected manner it places both parties at risk of unwanted pregnancies and sexually-transmitted diseases. EE  is chiefly concerned that young people have every means to protect themselves from such eventualities.

EE regards it as important that sexual activity engaged in between young people is informed and consensual; however, we see the criminalisation of a normal part of adolescence as wrong and counter-productive.

Prior to being declared unconstitutional the provisions criminalised consensual sexual behaviour between children aged 12 to 16 years old. The definition of sexual violation and sexual penetration were so broad that they criminalised nearly every form of touch between young people. It was illegal for children between the age of 12 and 16 to engage in kissing, cuddling, hugging or petting.

However, such activity, if consensual and respectful, is developmentally normal and healthy and can contribute positively to a young person’s growth.

·   Criminalising and stigmatising sex makes young people less safe

In order to practices safe sex young people need to be able to approach nurses, teachers and social workers for guidance. Prior to the High Court ruling, young people risked criminal prosecution by admitting to sexual activity. Now they can seek advice regarding safe sex practices and contraception without fear of prosecution. This will empower young people and help remove taboos and stigma surrounding consensual sexual activity.

Previously a person who obtained knowledge of two young people engaging in consensual sexual activity was legally required to report the children to the police. Failing to do so was an offence and, if found guilty, the person could be liable for a fine or imprisonment of up to five years. This untenable situation limited the ability of schools and organisations to guide and counsel young people. Now schools and organisations will be free to counsel young people on sexual activity without breaking the law.

·   Minister Motshekga must make condoms available in all public schools

In October 2012 President Jacob Zuma launched the Integrated School Health Programme (ISHP). The ISHP offers a variety of services to learners including immunisation, deworming and counselling on sexual and reproductive health issues.

President Zuma stated that condom distribution in schools would only be permitted after consultation with school communities through school governing bodies (SGB). EE welcomes the intention to consult parents on this important development, but does not believe that SGB’s should be able to veto the public health imperative of making condoms available in schools. There are a number of worrying indications that this might be the case. The ISHP only refers to condoms as part of health education and not as part of the other on-site services provided in schools. Furthermore, the last draft of the ISHP resource manual for school nurses implies that SGB’s have the power to veto condom distribution in their schools. The draft states, “Routine advice on contraceptives, and the on-site provision of condoms where the School Governing Body has approved this, should start from Grade 8 learners”.

Health Minister Aaron Motsoaledi and Minister Motshekga urgently need to agree upon and clarify the position on the matter. Spokesperson for the Department of Basic Education Panyaza Lesufi, was quoted as saying with regard to condom distribution,

“We have children in our schools. Sexual consent is above 16 and we cannot encourage them to break the law.”[http://www.sowetanlive.co.za/news/2012/10/05/sex-education-drive-may-hit-legal-snags]

The court’s ruling has now changed this law. Sexual activity between children under 16 is no longer punishable as illegal. Therefore the Department of Basic Education can no longer argue that condom provision would encourage learners to break the law. Furthermore, there is no evidence to suggest that providing condoms encourages young people to engage in sexual activity. According to a small number of studies of mixed quality, making condoms available in schools does not hasten the onset of sexual intercourse or increase its frequency [1].

Minister Motshekga may be in breach of the law if she refuses to provide condoms as part of the ISHP. Given that the Minister of Health, Dr Motsoaledi, is willing to provide condoms free of charge, it is arguable that Minister Motshekga’s refusal to provide condoms is in breach of the Children’s Act. Section 134 of the act states that, “No person may refuse to sell condoms to a child over the age of 12 years; or to provide a child over the age of 12 years with condoms on request where such condoms are provided free of charge.”

EE calls on Minster Motshekga to amend the ISHP to ensure that it allows for condom distribution in schools. It is a public health and educational imperative that this programme – including the availability of condoms in schools – goes ahead.


For comment

Yoliswa Dwane (EE Chairperson) on 072 342 7747/ 021 387 0022

Kate Wilkinson (Media Officer) on 082 326 5353/ kate@equaleducation.org.za


[1] Kirby, D. 2007. Emerging Answers: Research Findings on Programs to Reduce Teen Pregnancy and Sexually Transmitted Diseases. http://www.thenationalcampaign.org/EA2007/EA2007_full.pdf