The criminalization of consensual sexual acts between children
- Authors: Grootboom, Lance Patrick
- Date: 2018
- Subjects: Sex crimes -- South Africa , Children -- Legal status, laws, etc -- South Africa , South Africa -- Children's Act, 2005
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30082 , vital:30823
- Description: Sections 15 and 16 of the Criminal Law Sexual Offences and Related Matters Act (hereinafter referred to as “SORMA”) regulated consensual sexual acts between children. Both these sections criminalised consensual sexual acts between children. Section 15 of SORMA deals with consensual sexual penetration with children 12 years old but under the age of 16 years and section 16 deals with acts of consensual sexual violation with children 12 years of age but under the age of 16. The aim of these two sections was to protect children from undue influence relating to sexual engagement with adults or significantly older children. A number of child organisations criticised sections 15 and 16 on grounds that it is not abnormal for adolescents in the age group 12 to 16 years to experiment with sex and that such conduct are developmentally significant and normative. In the Teddy Bear Clinic and Rapcan v Minister of Justice and Constitutional Development1 (hereinafter referred to as the Teddy Bear case), the constitutionality of sections 15 and 16 of SORMA were challenged in the Constitutional Court. The Constitutional Court held that both sections were unconstitutional and ruled that these sections violated childrens’ right to human dignity, privacy and the best interest of the child principle. The Constitutional Court suspended the declaration of invalidity for a period of 18 months in order to give Parliament an opportunity to remedy the defects in SORMA. On 3 July 2015 the Criminal Law Sexual Offences and Related Matters Amendment, Amendment 5 of 2015, came into operation and amended section 15 and 16 by decriminalising sexual acts between children aged between 12 to 15 years. This research evaluates the arguments and effects of the Teddy Bear case with reference to section 15 and 16 of SORMA and provides an analysis of the current amendments in the Amendment Act 5 2015, with specific reference to its impact on consensual sexual acts between children.
- Full Text:
- Date Issued: 2018
- Authors: Grootboom, Lance Patrick
- Date: 2018
- Subjects: Sex crimes -- South Africa , Children -- Legal status, laws, etc -- South Africa , South Africa -- Children's Act, 2005
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30082 , vital:30823
- Description: Sections 15 and 16 of the Criminal Law Sexual Offences and Related Matters Act (hereinafter referred to as “SORMA”) regulated consensual sexual acts between children. Both these sections criminalised consensual sexual acts between children. Section 15 of SORMA deals with consensual sexual penetration with children 12 years old but under the age of 16 years and section 16 deals with acts of consensual sexual violation with children 12 years of age but under the age of 16. The aim of these two sections was to protect children from undue influence relating to sexual engagement with adults or significantly older children. A number of child organisations criticised sections 15 and 16 on grounds that it is not abnormal for adolescents in the age group 12 to 16 years to experiment with sex and that such conduct are developmentally significant and normative. In the Teddy Bear Clinic and Rapcan v Minister of Justice and Constitutional Development1 (hereinafter referred to as the Teddy Bear case), the constitutionality of sections 15 and 16 of SORMA were challenged in the Constitutional Court. The Constitutional Court held that both sections were unconstitutional and ruled that these sections violated childrens’ right to human dignity, privacy and the best interest of the child principle. The Constitutional Court suspended the declaration of invalidity for a period of 18 months in order to give Parliament an opportunity to remedy the defects in SORMA. On 3 July 2015 the Criminal Law Sexual Offences and Related Matters Amendment, Amendment 5 of 2015, came into operation and amended section 15 and 16 by decriminalising sexual acts between children aged between 12 to 15 years. This research evaluates the arguments and effects of the Teddy Bear case with reference to section 15 and 16 of SORMA and provides an analysis of the current amendments in the Amendment Act 5 2015, with specific reference to its impact on consensual sexual acts between children.
- Full Text:
- Date Issued: 2018
The interaction of children's rights, education rights and freedom of religion in South African schools
- Authors: Chetty, Kasturi
- Date: 2013
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Freedom of religion -- South Africa , School children -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10295 , http://hdl.handle.net/10948/d1020864
- Description: This study examines the topic of the interaction of children’s rights, education rights and freedom of religion in South African schools from a legal perspective. It comprises of a discussion on the historical development of religion in South African schools; South Africa’s international obligations with regards to children’s rights, education rights and freedom of religion and the South African substantive law pertaining to children rights, education and freedom of religion as impacting on legal issues pertaining to religion in schools. The study utilises a desktop approach, which comprises of a wide range of legal and other literary sources, international instruments, statutes and case law on children’s rights, education rights and freedom of religion. Importantly, it highlights the integral connection between these aforementioned rights when dealing with issues pertaining to religion in schools. This thesis illustrates that much of the historical development of religion in schools took place without consideration of children’s rights, or more particularly, the best interests of the learners. Instead, (a particular brand of) religious beliefs were promoted in education above other religions and the well-being of school-children. Furthermore, despite the introduction of specific children’s rights into the Constitution, this thesis emphasises that the rights of children have still not been recognised sufficiently in education laws and policies. It is submitted that children’s rights have a paramount and practical role to play in matters pertaining to religion in South African schools. Consequently, it is recommended that children’s rights, more particularly the best interests of the child principle, should be expressly introduced into education legislation and policies. This will create legal obligations for school administrators and SGBs on the inclusion of children’s rights in religious exemption procedures. Furthermore, it is recommended that national guidelines on religious/cultural exemptions (which incorporate children’s rights) be developed which will set legal parameters for the handling of religious/cultural exemption procedures in schools. This thesis also argues against the interpretation that the right to establish private schools includes the right to require religious conformity from non-adherent learners by way of a complete waiver of their religious freedom. Despite the importance of respecting the right of religious communities to protect and preserve their faith in private schools, it is submitted that this right cannot be exercised without regard for the religious freedom, dignity and best interests of non-adherent children. As a result, it is submitted that the waiver of the freedom of religion of non-adherent children is not consistent with the values which South African society reveres and therefore cannot be enforced. This thesis suggests that there is a way for the rights of private schools and the rights of non-adherent children to co-exist in harmony through the application of the reasonable accommodation principle in private schools. Reasonable accommodation of different faiths teaches religious tolerance to leaners in private schools and ensures that they are prepared to grapple with the religious diversity that they will inevitably face outside of the school environment. It is submitted that the enforcement of reasonable accommodation in private schools is to the benefit of all learners in private schools and to South African society in general. Moreover, this study questions and analyses the state’s provision of compulsory religion education in public schools through the National Policy on Religion and Education. A theoretical distinction is made between religion education and religious instruction in the National Policy itself. Religious instruction refers to the teaching of specific religious beliefs. Religion education refers to the teaching about different religions and worldviews from an academic perspective. It is submitted that the National Policy is correct in removing religious instruction from public schools as this would not be in accordance with freedom of religion or equality rights of learners who are not of the majority faith. It is submitted further that, although the provision of compulsory religion education in public schools impacts upon the freedom of religion of learners and their parents, (if taught correctly) it is a reasonable and justifiable limitation on freedom of religion in that it pursues the legitimate state goal of nation-building through the teaching of religious tolerance and “celebrating diversity” in schools. In light of South Africa’s history of religious discrimination, it must be recognised that the current position (although not problem- free) is a significant step forward in the protection of minority religious rights in South African schools. Despite this, it is submitted that there are numerous problems with the implementation of the National Policy that impact upon the dignity, equality and other rights of the learners concerned. These problems cannot be ignored since they impact upon the daily lives of school children. However, many of these problems can be minimised through more effective teacher training in this subject area. Accordingly, this thesis recommends that the current position be maintained as an acceptable compromise between the two extremes of providing religious instruction in one faith and removing religion education from public schools altogether. However, it emphasises that the state has to make a concerted effort to improve teacher training in this subject area in order to ensure that the objectives of the National Policy are carried out as envisaged. Furthermore, this thesis finds that certain provisions of the National Policy contain not only educational goals, but spiritual goals. Also in some instances, it is difficult to determine whether the religion education curriculum borders on being religious or not. In accordance with freedom of religion, it is submitted that the line between religion education and religious instruction must be clearly drawn in law and in practice. Consequently, the state must reconsider the National Policy and the corresponding religion education curriculum to ensure that they are aligned with the objectives of nation-building in all respects, meaning that any provisions or learning outcomes which have purely spiritual goals- must be amended or removed.
- Full Text:
- Date Issued: 2013
- Authors: Chetty, Kasturi
- Date: 2013
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Freedom of religion -- South Africa , School children -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10295 , http://hdl.handle.net/10948/d1020864
- Description: This study examines the topic of the interaction of children’s rights, education rights and freedom of religion in South African schools from a legal perspective. It comprises of a discussion on the historical development of religion in South African schools; South Africa’s international obligations with regards to children’s rights, education rights and freedom of religion and the South African substantive law pertaining to children rights, education and freedom of religion as impacting on legal issues pertaining to religion in schools. The study utilises a desktop approach, which comprises of a wide range of legal and other literary sources, international instruments, statutes and case law on children’s rights, education rights and freedom of religion. Importantly, it highlights the integral connection between these aforementioned rights when dealing with issues pertaining to religion in schools. This thesis illustrates that much of the historical development of religion in schools took place without consideration of children’s rights, or more particularly, the best interests of the learners. Instead, (a particular brand of) religious beliefs were promoted in education above other religions and the well-being of school-children. Furthermore, despite the introduction of specific children’s rights into the Constitution, this thesis emphasises that the rights of children have still not been recognised sufficiently in education laws and policies. It is submitted that children’s rights have a paramount and practical role to play in matters pertaining to religion in South African schools. Consequently, it is recommended that children’s rights, more particularly the best interests of the child principle, should be expressly introduced into education legislation and policies. This will create legal obligations for school administrators and SGBs on the inclusion of children’s rights in religious exemption procedures. Furthermore, it is recommended that national guidelines on religious/cultural exemptions (which incorporate children’s rights) be developed which will set legal parameters for the handling of religious/cultural exemption procedures in schools. This thesis also argues against the interpretation that the right to establish private schools includes the right to require religious conformity from non-adherent learners by way of a complete waiver of their religious freedom. Despite the importance of respecting the right of religious communities to protect and preserve their faith in private schools, it is submitted that this right cannot be exercised without regard for the religious freedom, dignity and best interests of non-adherent children. As a result, it is submitted that the waiver of the freedom of religion of non-adherent children is not consistent with the values which South African society reveres and therefore cannot be enforced. This thesis suggests that there is a way for the rights of private schools and the rights of non-adherent children to co-exist in harmony through the application of the reasonable accommodation principle in private schools. Reasonable accommodation of different faiths teaches religious tolerance to leaners in private schools and ensures that they are prepared to grapple with the religious diversity that they will inevitably face outside of the school environment. It is submitted that the enforcement of reasonable accommodation in private schools is to the benefit of all learners in private schools and to South African society in general. Moreover, this study questions and analyses the state’s provision of compulsory religion education in public schools through the National Policy on Religion and Education. A theoretical distinction is made between religion education and religious instruction in the National Policy itself. Religious instruction refers to the teaching of specific religious beliefs. Religion education refers to the teaching about different religions and worldviews from an academic perspective. It is submitted that the National Policy is correct in removing religious instruction from public schools as this would not be in accordance with freedom of religion or equality rights of learners who are not of the majority faith. It is submitted further that, although the provision of compulsory religion education in public schools impacts upon the freedom of religion of learners and their parents, (if taught correctly) it is a reasonable and justifiable limitation on freedom of religion in that it pursues the legitimate state goal of nation-building through the teaching of religious tolerance and “celebrating diversity” in schools. In light of South Africa’s history of religious discrimination, it must be recognised that the current position (although not problem- free) is a significant step forward in the protection of minority religious rights in South African schools. Despite this, it is submitted that there are numerous problems with the implementation of the National Policy that impact upon the dignity, equality and other rights of the learners concerned. These problems cannot be ignored since they impact upon the daily lives of school children. However, many of these problems can be minimised through more effective teacher training in this subject area. Accordingly, this thesis recommends that the current position be maintained as an acceptable compromise between the two extremes of providing religious instruction in one faith and removing religion education from public schools altogether. However, it emphasises that the state has to make a concerted effort to improve teacher training in this subject area in order to ensure that the objectives of the National Policy are carried out as envisaged. Furthermore, this thesis finds that certain provisions of the National Policy contain not only educational goals, but spiritual goals. Also in some instances, it is difficult to determine whether the religion education curriculum borders on being religious or not. In accordance with freedom of religion, it is submitted that the line between religion education and religious instruction must be clearly drawn in law and in practice. Consequently, the state must reconsider the National Policy and the corresponding religion education curriculum to ensure that they are aligned with the objectives of nation-building in all respects, meaning that any provisions or learning outcomes which have purely spiritual goals- must be amended or removed.
- Full Text:
- Date Issued: 2013
An evaluation of the Child Justice Act
- Authors: McGregor, Melissa
- Date: 2010
- Subjects: Children -- Legal status, laws, etc -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10175 , http://hdl.handle.net/10948/1278 , Children -- Legal status, laws, etc -- South Africa
- Description: “No civilized society, regards children as accountable for their actions to the same extent as adults”.1 In the absence of a justice system applicable exclusively to children in conflict with the law in South Africa, children are subjected to the same rigours of the criminal law applicable to adults in South Africa. “States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and 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”.2 As a signatory to the United Nations Convention on the Rights of the Child, South Africa has a duty to ensure that the children in conflict with the law are treated in a manner that gives effect to the protectionary ideals espoused in the Convention. In July 2000, the South African Law Commission [Project 106] released the Child Justice Bill3, together with its Report on Juvenile Justice. Because the child justice system at present is not governed by legislation, uncertainty and inconsistency are constant dangers. We need legislation to ensure that all children in conflict with the law are dealt with consistently, fairly and appropriately. The question that needs to be answered in this treatise, is whether the Child Justice Act 75 of 2008, which comes into effect on 01 April 2010, is a legislative framework that incorporates due process rights together with the rights of children who is alleged to have committed an offence, to be protected and treated in a manner appropriate to their age.
- Full Text:
- Date Issued: 2010
- Authors: McGregor, Melissa
- Date: 2010
- Subjects: Children -- Legal status, laws, etc -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10175 , http://hdl.handle.net/10948/1278 , Children -- Legal status, laws, etc -- South Africa
- Description: “No civilized society, regards children as accountable for their actions to the same extent as adults”.1 In the absence of a justice system applicable exclusively to children in conflict with the law in South Africa, children are subjected to the same rigours of the criminal law applicable to adults in South Africa. “States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and 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”.2 As a signatory to the United Nations Convention on the Rights of the Child, South Africa has a duty to ensure that the children in conflict with the law are treated in a manner that gives effect to the protectionary ideals espoused in the Convention. In July 2000, the South African Law Commission [Project 106] released the Child Justice Bill3, together with its Report on Juvenile Justice. Because the child justice system at present is not governed by legislation, uncertainty and inconsistency are constant dangers. We need legislation to ensure that all children in conflict with the law are dealt with consistently, fairly and appropriately. The question that needs to be answered in this treatise, is whether the Child Justice Act 75 of 2008, which comes into effect on 01 April 2010, is a legislative framework that incorporates due process rights together with the rights of children who is alleged to have committed an offence, to be protected and treated in a manner appropriate to their age.
- Full Text:
- Date Issued: 2010
The child accused in the criminal justice system
- Authors: Brink, Ronelle Bonita
- Date: 2010
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Children's rights -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10178 , http://hdl.handle.net/10948/1229 , Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Children's rights -- Law and legislation -- South Africa
- Description: The high level of crime in South Africa raises the question about the failures of the criminal justice system on the one hand, and South Africa’s social policies on the other. Young people in South Africa can disproportionately be both victims and perpetrators of crime in the Republic of South Africa. The child accused in conflict with the law is dealt with in much the same way as their adult counterparts, as the criminal justice system was designed by adults for adults. South Africa became a signatory to the United Nations Convention on the Rights of the Child 19891(hereinafter referred to as UNCRC) on 16 June 1995. The UNCRC provides a backdrop to section 28 of the Constitution of the Republic of South Africa Act.2 Article 3(1) of the UNCRC provides as follows: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be primary consideration.” South Africa is therefore according to article 40(3) of the UNCRC obliged to “establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law”.3 In terms of article 40(1) of the UNCRC “State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and 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.”4 1 Adopted by the General Assembly resolution 44/25 on 20 November 1989. 2 The Constitution of the Republic of South Africa Act, Act 108 of 1996. Hereinafter referred to as the “Constitution”. 3 South Law Reform Commission Discussion Paper 96. 4 United Nations Convention on the Rights of the Child adopted by the General Assembly resolution 44/25 on 20 November 1989. iv Synopsis 2003 states that “the Ratification of the UNCRC by the South African government in 1995 set the scene for broad-reaching policy and legislative change”.5 The Constitution includes a section protecting children’s rights, which includes the statement that children have the right not to be detained except as a measure of last resort and then for the shortest appropriate period of time, separate from adults and in conditions that take account of his/her age. 6 After being off Parliament’s agenda since 2003, the Child Justice Act7 has recently been reintroduced. The Act aims to ensure consistent, fair and appropriate treatment of the child accused in conflict with the law. The question arises whether the South African Criminal Justice system involving the child accused adequately recognises and protects the interests of the child accused, particularly in view of the present international legal position.
- Full Text:
- Date Issued: 2010
- Authors: Brink, Ronelle Bonita
- Date: 2010
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Children's rights -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10178 , http://hdl.handle.net/10948/1229 , Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Children's rights -- Law and legislation -- South Africa
- Description: The high level of crime in South Africa raises the question about the failures of the criminal justice system on the one hand, and South Africa’s social policies on the other. Young people in South Africa can disproportionately be both victims and perpetrators of crime in the Republic of South Africa. The child accused in conflict with the law is dealt with in much the same way as their adult counterparts, as the criminal justice system was designed by adults for adults. South Africa became a signatory to the United Nations Convention on the Rights of the Child 19891(hereinafter referred to as UNCRC) on 16 June 1995. The UNCRC provides a backdrop to section 28 of the Constitution of the Republic of South Africa Act.2 Article 3(1) of the UNCRC provides as follows: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be primary consideration.” South Africa is therefore according to article 40(3) of the UNCRC obliged to “establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law”.3 In terms of article 40(1) of the UNCRC “State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and 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.”4 1 Adopted by the General Assembly resolution 44/25 on 20 November 1989. 2 The Constitution of the Republic of South Africa Act, Act 108 of 1996. Hereinafter referred to as the “Constitution”. 3 South Law Reform Commission Discussion Paper 96. 4 United Nations Convention on the Rights of the Child adopted by the General Assembly resolution 44/25 on 20 November 1989. iv Synopsis 2003 states that “the Ratification of the UNCRC by the South African government in 1995 set the scene for broad-reaching policy and legislative change”.5 The Constitution includes a section protecting children’s rights, which includes the statement that children have the right not to be detained except as a measure of last resort and then for the shortest appropriate period of time, separate from adults and in conditions that take account of his/her age. 6 After being off Parliament’s agenda since 2003, the Child Justice Act7 has recently been reintroduced. The Act aims to ensure consistent, fair and appropriate treatment of the child accused in conflict with the law. The question arises whether the South African Criminal Justice system involving the child accused adequately recognises and protects the interests of the child accused, particularly in view of the present international legal position.
- Full Text:
- Date Issued: 2010
- «
- ‹
- 1
- ›
- »