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The purpose of this act is to establish a criminal justice system for children who are in conflict with the law and accused of committing offences, in accordance with the values underpinned in the constitution and the international obligations of the republic to provide for the minimum age of the criminal capacity outside of the criminal justice system; to make special provision for securing attendance in court and the release or detention and placement of children; to provide for the holding of a preliminary inquiry and to incorporate, as a central feature, the possibility of diverting matters away from the formal criminal justice system in appropriate circumstances; to make provision for child justice courts to hear all of the trials of children whose matters are not diverted; to extend the sentencing options available in respect of children who have been convicted; to entrench the notion of restorative justice in the criminal justice system in respect of children who are in conflict with the law.

The constitution of the Republic of South Africa ,1996, as the supreme law of the republic, was adopted to establish a society based upon democratic values, social and economic justice, equality and fundamental human rights and to improve the quality of life of all of its people and to free the potential of every person by all means possible. The constitution whilst envisioning the limitation of fundamental rights in certain circumstances, emphasises the best interests of children and singles them out for special protection, affording children in conflict with the law special safeguards, among others the right :

 not to be detained, except as a measure of last resort, and if detained, only for the shortest possible appropriate time;

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 To be kept separately from adults, and to separate boys from girls while in detention  to family parental and appropriate care;

 to be protected from maltreatment, neglect, abuse or degradation and not to be subjected to practices that could endanger the child’s wellbeing, education, physical or mental health or spiritual , moral or social development.

The current statutory law does not effectively approach the plight of children in conflict with the law in a comprehensive and integrated manner that takes into account their vulnerability and special needs and should acknowledge that there are capacity, resource and other constraints on the state which may require a pragmatic and incremental strategy to implement the new criminal justice system for children.

The objectives of the act are therefore as follows, to:

 promote the rights of children as provided for in the constitution;  promote the spirit of Ubuntu in the child justice system through

a) fostering children’s sense of dignity and worth;

b) reinforcing children’s respect for human rights and the fundamental freedoms of others by holding children accountable for their actions and safe-guarding the interests of victims and the community; and

c) supporting reconciliation by means of a restorative justice response: and involving parents, families, victims and where appropriate other members of the community affected by the crime in procedures in terms of the Act in order to encourage the reintegration of children.

d) Provide for the special treatment of children in a child justice system designed to break the cycle of crime, which will contribute to safer communities and

encourage these children to be law-abiding and productive adults, e) Prevent children from being exposed to the adverse effects of the formal criminal

justice system by using where appropriate, processes and procedures and mechanisms and services or options more suitable to the needs of children in accordance with the constitution, including the use of diversion and

f) Promote cooperation between government departments and the nongovernmental sector and civil society, to ensure an integrated and holistic approach to the implementation of this act.

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3.5.2 CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT NO 32 OF 2007)

No judicial officer sitting in South Africa today is unaware of the extent of sexual violence in the country and the way in which it deprives so many women and children of their right to dignity and bodily integrity and, in the case of children, the right to be children; to grow up in innocence and, as they grow older, to awaken to the maturity and joy of full humanity. “The rights to dignity and bodily integrity are fundamental to our humanity and should be respected for that reason alone” (Jameson et al., 2012 :17).

Whereas the Bill of Rights in the Constitution of the Republic of South Africa,1996, enshrines the rights of all people in the Republic of South Africa, including the right to equality, the right to privacy, the right to dignity, the right to freedom and security of the person, which incorporates the right to be free from all forms of violence from either public or private sources, and the rights of children and other vulnerable persons to have their best interests considered to be of paramount importance.

There are, several international legal instruments, including the United Nations Convention on the Elimination of all Forms of Discrimination Against Women, 1979, and the United Nations Convention on the Rights of the Child, 1989, which place obligations on the Republic towards the combating and, ultimately, eradicating of abuse and violence against women and children. The South African government further, recognises these international instruments within its domestic legislation.

The pre amble of the Sexual offences and related matters amendment act reads as follows: “Whereas the commission of sexual offences in the Republic is of grave concern, as it has a particularly disadvantageous impact on vulnerable persons, the society as a whole and the economy; Whereas women and children, being particularly vulnerable, are more likely to become victims of sexual offences, including participating in adult prostitution and sexual exploitation of children; Whereas the prevalence of the commission of sexual offences in our society is primarily a social phenomenon, which is reflective of deep-seated, systemic dysfunctionality in our society, and that legal mechanisms to address this social phenomenon are limited and are reactive in nature, but nonetheless necessary; Whereas the South African common law and statutory law do not deal adequately, effectively and in a non-discriminatory manner with many aspects relating to or associated with the commission of sexual offences, and a uniform and co-ordinated approach to the implementation of and service delivery in terms of the laws relating to sexual offences is not consistently evident in Government; and thereby which, in too many instances, fails to provide adequate and effective protection to the

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victims of sexual offences thereby exacerbating their plight through secondary victimisation and traumatisation” (RSA, No 32 of 2007 2).

Objects of the Criminal Law (Sexual Offences and Related matters) Amendment Act.

The objects of this Act are to afford complainants of sexual offences the maximum and least traumatising protection that the law can provide, to introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this Act and to combat and, ultimately, eradicate the relatively high incidence of sexual offences committed in the

Republic by:

 enacting all matters relating to sexual offences in a single statute;  criminalising all forms of sexual abuse or exploitation;

 repealing certain common law sexual offences and replacing them with new

 and, in some instances, expanded or extended statutory sexual offences, irrespective of gender;

 protecting complainants of sexual offences and their families from secondary victimisation and trauma by establishing a co-operative response between all government departments involved in implementing an effective, responsive and sensitive criminal justice system relating to sexual offences; and

 promoting the spirit of Batho Pele (‘‘the people first’’) in respect of service delivery in the criminal justice system dealing with sexual offences by—

(i) ensuring more effective and efficient investigation and prosecution of perpetrators of sexual offences by clearly defining existing offences, and creating new offences;

(ii) giving proper recognition to the needs of victims of sexual offences through timorous, effective and non-discriminatory investigation and prosecution

(iii) facilitating a uniform and co-ordinated approach by relevant government departments in dealing with sexual offences;

(iv) entrenching accountability of government officials; and

(v) minimising disparities in the provision of services to victims of sexual offences;

 providing certain services to victims of sexual offences, including affording

 victims of sexual offences the right to receive Post Exposure Prophylaxis in certain circumstances; and

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 establishing a National Register for Sex Offenders in order to establish arecord of persons who are or have been convicted of, sexual offences against

children and persons who are mentally disabled so as to prohibit such persons from being employed in a manner that places them in a position to work with or have access to, or authority or supervision over, or care, of children or persons who are mentally disabled.

The Criminal Law (Sexual Offences and Related matters) Amendment Act defines and categorises sexual offences and details prosecution procedures. The Act recognises that children and adolescents are vulnerable to the psychological influence of adults. The Act tries to protect them from the abuse and exploitation by creating ages of consent to sexual activity. It is unlawful to perform a sexual; act on a child younger than 16 years. The Act is commonly known as the Sexual Offences Act (Jameson et al., 2012: 16).

Criminalising teenage sex potentially violates a number of children’s rights enshrined in the Constitution and international law, namely, the best interests principle, which is the right to bodily and psychological integrity and the right to privacy.