Abstract
This contribution deals with the recent judgments pronouncing on the entering of the particulars of child sex offenders into the register for sex offenders as enunciated in Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The constitutionality of having juvenile sex offenders' names entered into the National Register of Sex Offenders is scrutinised by the High Court as well as ultimately by the Constitutional Court. A critical analysis specifically of section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act is embarked upon with specific reference to the lack of discretion afforded to courts in deciding whether the particular offender's details should be entered or not. The judgment delivered by the Constitutional Court is elucidated, where these provisions were declared unconstitutional in respect of child sex offenders. The decision under discussion is of particular relevance as the court was required to assess the constitutionality of the provisions relating to the Register with specific reference to juvenile sex offenders. The Constitutional Court specifically emphasised the need for an individuated discretion in respect of juvenile sex offenders catering specifically for the needs of juvenile sex offenders. The difference between adult sex offenders and juvenile sex offenders is also emphasised. The approaches followed by both the High Court and the Constitutional Court are provided and discussed, conclusions are reached and recommendations are made. It is suggested that in respect of juvenile sex offenders, a more holistic approach should be adopted with due regard to the Constitution, the objects of the CJA, and the specific circumstances of the offence. Children should be treated in such a way as to promote their dignity as well as their reintegration into society, having regard to the specific circumstances of the offence. In terms of the latter, children should be placed on the Register only if they pose a demonstrable risk and danger to the community.
Highlights
The amicus curiae agreed with the arguments advanced on behalf of the accused, argued that the provisions of section 50(2) are not reasonable and justifiable, and submitted that the impugned provision was not adequately connected to its purpose, as the state had not indicated that children who committed sexual offences against their peers necessarily became adult sex offenders who preyed on children
One can only hope that should this decision be constitutionally confirmed, the legislature will amend the provisions of SORMA in such a manner as to harmonise the provisions of SORMA with the objects of the CJA and the Constitution, catering for the specific needs and individual circumstances of juvenile sex offenders in line with the judgment of the Constitutional Court with specific reference to the emphasis the court placed on the need for an individuated response in respect of juvenile sex offenders
The impact is exacerbated when juvenile sex offenders are at stake
Summary
She called the police and Johnnie spent sixteen months in a residential juvenile sex offender program; where he successfully completed treatment When he was released, Johnnie's mother wanted nothing to do with him, so he ended up living with his grandmother. The decision under discussion is of particular relevance as the court was required to assess the constitutionality of the provisions relating to the Register with specific reference to juvenile sex offenders. In this contribution, the judgment delivered in the trial court and the consequent ruling of the Constitutional Court are discussed in order to elucidate the theme under discussion. The question was raised by the high court with the regional magistrate and the Director of Public Prosecutions, Western Cape, if it was competent for the court to make an order in terms of section 50(2) of SORMA if proper cognisance was taken of the provisions of subsections 2, 3 and 4 of the CJA as well as section 28 of the Constitution.
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
