Mandatory registration of young sex offenders fails to give proper consideration to best interests of children

J v National Director of Public Prosecutions and Another (CCT 114/13) [2014] ZACC 13 (6 May 2014)

The Constitutional Court of South Africa has ruled that a law requiring courts to make an order to include the particulars of a sexual offence on a National Register for Sex Offenders (the Register) is unconstitutional when that offender is a child.  The court noted that having particulars of a sexual offence on the Register at a young age could significantly impact on the child's life, including their ability to gain employment.  The Court found that the mandatory nature of the law infringes on the right of child offenders to have their best interests considered as a matter of paramount importance and was therefore contrary to section 28(2) of the South African Constitution (the Constitution).

Facts

J, the accused, was 14 years old at the time he committed the following offences:

• rape of a seven year old boy;
• rape of two six year old boys;
• assault with intent to cause grievous bodily harm for stabbing a 12 year old girl.

Procedural history

J pleaded guilty to all charges in the Magistrates Court and was sentenced to five years compulsory residence in a child and youth care centre and a three year prison term thereafter. He was subsequently sentenced with six months suspended imprisonment for the assault charge. In addition, the Magistrate made an order that J's details be particularised on the Register. Section 50(2)(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (No 32 of 2007) (the Act) mandates that such an order be made where the offence is against a child or a person with a mental illness. Ramifications of being on the register include limitations in employment, in licensing certain facilities and in the care of children and persons with a cognitive disability.

The case was appealed to the High Court. The full High Court declared that s 50(2) of the Act unjustifiably infringes on the rights of offenders whether they are children or adults as it fails to afford the accused an opportunity to make submissions regarding whether their particulars should be put on the Register. The Act therefore limits the Court's discretion to make a decision as to those submissions. The High Court held this was contrary to s 34 of the Constitution which affords the right for everyone to have a fair public hearing before a court or tribunal.

The matter came before the Constitutional Court for confirmation of the finding of constitutional invalidity.

Submissions

Neither party opposed confirmation of the High Court's order completely.

The State acknowledged the provision imposes unjustifiable limitation on the offender's right to be heard and their right to a fair trial.  However, the State did argue that the High Court's orders were too broad in that they extended the principle to adult offenders.

Three non-profit organisations that provide support services and programmes to children made submissions to the Constitutional Court as amici curiae. They argued that the High Court had erred in not finding the provision unjustifiably infringed on the applicant's rights under section 28(2) of the Constitution. Section 28(2) of the Constitution provides, "a child's best interests are of paramount importance in every matter concerning the child".

Decision

The 11 justices of the Constitutional Court unanimously made a declaration that section 50(2) was unconstitutional but varied the orders of the High Court.

Should the principle extend to adult offenders?

The Constitutional Court held that it was inappropriate for the High Court to consider the provision's constitutional validity in relation to adult offenders as the facts in this case only raise the application of the provision to child offenders.

Does the provision limit constitutional rights?

The Constitutional Court agreed with the amici, that the starting point for all matters concerning the child is a consideration of section 28(2) of the Constitution - the child's best interests are paramount. The Constitutional Court considered three key principles when approaching issues involving the best interests of the child offender:

• the law should generally distinguish between adults and children;
• the law ought to make allowance for an individual approach to child offenders;
• the child or her representatives must be afforded an appropriate and adequate opportunity to be heard at every stage of the justice process.

The Constitutional Court also considered the fact that being on the Register would impact upon child offenders after they have served their sentences, with the sanction of exclusion from areas of life and livelihood that may be formative for their personal dignity, family life, and abilities to pursue a living.

As section 50(2) of the Act applies without distinction to both adult and child offenders and gives no discretion to the court on whether they should include the particulars of the offender on the Register, the Constitutional Court found the provision infringes the best interests of the child in terms of s 28(2) of the Constitution.

Is the limitation justifiable?

As sexual violence threatens a victim's rights to freedom and security of person, privacy and dignity in a profound way, the Constitutional Court acknowledged that the aim of the provision is to fulfil a vital function in protecting children and people with cognitive disabilities from sexual abuse.  However, as the operation of the provision does not allow the Courts to exercise discretion, it will not always serve this purpose. It follows that the limitation is not justified in an open and democratic society as there are more proportionate alternative methods for achieving the same aim.

The Court confirmed that section 50(2)(a) of the Act is inconsistent with the Constitution to the extent it unjustifiably limits the right of young sex offenders to have their best interests be given paramount importance.  The Court provided the Parliament with 15 months in which it could legislate to rectify the Act's invalidity.

Commentary

Legislative provisions that fail to distinguish between adult and child offenders or include mandatory sanctions have the potential to unjustifiably impinge on the right of children as they do not allow for courts to consider what justice requires on a case-by-case basis. Judicial discretion in such cases is important in order to adequately take into account the ability of child offenders to reform. Of particular relevance to this case, recidivism rates for sexual offences vary widely between adult and child offenders.

This judgment reaffirms a number of important principles relating to the treatment of youth offenders in the criminal justice system, many of which have been dealt with previously in the South African Constitutional Court in relation to mandatory minimum sentences for children.

The decision is available online.

Heidi Edwards is a graduate at DLA Piper.