J. v. National Director of Public Prosecutions and Another
Constitutional Court of South Africa
6 May 2014
Article 12: The child’s opinion
Criminal Law (Sexual Offences and Related Matters), Amended Act No. 32 of 2007 (Sexual Offences Act), section 50(2) (convicted sexual offenders’ particulars must be included on the National Register for Sex Offenders)
South African Constitution, section 28(2) (best interests of the child are paramount)
The Child Justice Act, section 3(a) (individualised consideration of the child)
The 14-year old applicant, J, was charged with the rape of a seven-year-old boy, the rape of two six-year-old boys, and assault with intent to cause grievous bodily harm for stabbing a 12-year-old girl. J pleaded guilty to all four charges in the Magistrates’ Court and was sentenced. The Magistrates’ Court made an ancillary order per section 50(2) of the Sexual Offences Act that the applicant’s particulars be entered in the National Register of Sex Offenders (Register). On automatic review, the Western Cape High Court declared section 50(2) constitutionally invalid because it unjustifiably infringed on the rights of offenders, whether children or adults. The matter came before the Constitutional Court for confirmation.
Issue and resolution:
Juvenile justice; constitutionality of including particulars of child sex offenders on the Register. The Court held that section 50(2)(a), which requires registration of sex offenders, unconstitutional with respect to child offenders. The Court limited the declaration of invalidity to child offenders, ruling that the question of adult offenders was not properly before the court. The declaration of invalidity is suspended for 15 months to give Parliament the opportunity to correct the defect in light of the judgment.
Inclusion of child offenders on the Register infringes on the rights of child offenders to have their best interests considered of paramount importance in terms of section 28(2) of the Constitution. The Court reasoned that the “best-interests” or “paramountcy” principle “creates a right that is independent and extends beyond the recognition of other children’s rights in the Constitution.” Under section 50(2), the court has no discretion in which to direct registration – it is mandatory. This provision is in direct conflict with the Child Justice Act, which foresees individualised justice, and Article 12 of the CRC, which underscores the importance of individualised determinations, weighing age and maturity, among other factors. Requiring registration has serious and potentially devastating effects on a child and his/her future – it limits employment opportunities, licensing, and care. While the Court recognised that in certain situations, limitations on the best interests and rights of a child offender are justifiable, there are less restrictive means to achieve the aims of the Register, such as affording discretion to the Court when making the determination to require registration.
Excerpts citing CRC and other relevant human rights instruments:
“ A third principle is that the child or her representatives must be afforded an appropriate and adequate opportunity to make representations and to be heard at every state of the justice process, giving due weight to the age and maturity of the child…
[FN45] … See also Article 12 of the Convention on the Rights of the Child, November 20, 1989, 1577 UNTS 3; 28 ILM 1456 (1989), which obliges state parties to ensure that a child who is capable of forming his or her own views enjoys the right to express those views in matters affecting the child and that those views be given due weight. See, in this respect, Committee on the Rights of the Child, “General Comment No 12 (2009): The right of the child to be heard” Fifty-first Session, 20 July 2009, CRC/C/GC/12 at paras 1 and 15. At para 57, the Committee affirmed that the right extends “throughout every stage of the process of juvenile justice.” See also Committee on the Rights of the Child, “General Comment No 10 (2007): Children’s rights in juvenile justice” Forty-fourth Session, 25 April 2007, CRC/C/GC/10 at paras 12 and 43-5.”
Parliament has 15 months to remedy the constitutional defect in section 50(2)(a).
CRIN believes this decision is consistent with the CRC. As discussed by the Court, children’s right to be heard under Article 12 must be fully respected and implemented throughout every stage of the juvenile justice process. Furthermore, Article 40 requires children in conflict with the law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. Articles 16 and 40(vii) provide that a child’s privacy must be fully respected at all stages of the proceedings. In General Comment No. 10, the Committee on the Rights of the Child reminded States that “[n]o information shall be published that may lead to the identification of a child offender because of its effect of stigmatisation, and possible impact on his/her ability to have access to education, work, housing or to be safe”.
J v. National Director of Public Prosecutions and Another  ZACC 13; Case CCT 114/13
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.