South Africa Case Law

Teddy Bear Clinic for the Abused Children and Another v Minister of Justice and Constitutional Development and Another (73300/10)

Teddy Bear Clinic for the Abused Children and Another v Minister of Justice and Constitutional Development and Another (73300/10) [2013] ZAGPPHC 1 (4 January 2013)

Court

North Gauteng High Court, Pretoria

Case number

73300/10

Judge

C.P. Rabie

The court held that provisions criminalising consensual sexual conduct between adolescents were unconstitutional and ordered a reading-in remedy.

• Statutory Rape
• Statutory Sexual Assault
• Age Of Consent
• Children S Rights
• Criminalisation Of Adolescent Sexuality
• Reading In Remedy

Geldenhuys v National Director of Public Prosecutions and Others (CCT 26/08)

Geldenhuys v National Director of Public Prosecutions and Others (CCT 26/08) [2008] ZACC 21; 2009 (2) SA 310 (CC); 2009 (1) SACR 231 (CC); ; 2009 (5) BCLR 435 (CC) (26 November 2008)

Court

Constitutional Court

Case number

CCT 26/08

Judges

Mokgoro, Langa, Moseneke, Madala, Ngcobo, O'Regan, Sachs, Van der Westhuizen, Yacoob

Sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act set a higher age of consent for same-sex sexual acts (19 years) than for opposite-sex acts (16 years), amounting to discrimination based on sexual orientation. This differentiation does not serve a rational government purpose and is presumed unfair under section 9(3) of the Constitution. No justification was provided by the State or respondents to rebut this presumption. The provisions perpetuate harmful stereotypes and are inconsistent with the values of equality, dignity, and freedom. The Court confirmed the Supreme Court of Appeal's…

Source excerpt

• Equality Clause
• Sexual Orientation Discrimination
• Age Of Consent
• Retrospective Invalidity
• Remedial Orders

S v Geldenhuys (470/2007)

S v Geldenhuys (470/2007) [2008] ZASCA 47; 2009 (1) SACR 1 (SCA); [2008] 3 All SA 8 (SCA); 2008 (9) BCLR 940 (SCA) (31 March 2008)

Court

Supreme Court of Appeal

Case number

470/2007

Judges

Streicher, Cameron, Nugent, Van Heerden, Kgomo

Sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 are unconstitutional to the extent that they differentiate between heterosexual and same-sex sexual activities by setting the legal age of consent at 16 and 19 years, respectively. This distinction constitutes unfair discrimination on the grounds of sexual orientation, which is not justified under section 36(1) of the Constitution. The appropriate remedy is to sever the words 'under the age of 19 years' and read in 'under the age of 16 years' for both boys and girls, thereby setting a uniform age of consent. The declaration…

Source excerpt

• Sexual Offences Act
• Age Of Consent
• Unfair Discrimination
• Constitutional Invalidity
• Reading In And Severance
• Children S Rights