Age of Consent - South Africa

coolteensites.net
[Cool Teen Sites]

Updated 01-2001:

Source:  http://www.actwin.com/eatonohio/gay/world.htm


SOUTH AFRICA LAWS: 1. Has no sodomy laws, the age of sexual consent is 19 for homosexuals,
and 16 for heterosexuals. Sex with a person under 19 is punishable  with imprisonment of up to six years with or without a fine of up to 12,000 rand.
2. Has a national gay rights law that bans some anti-gay discrimination.
3. Allows homosexuals in its military.
COURT:1. The Cape High Court struck down a law used by the government to  deny immigration rights to same-sex foreign partners of South African Gays. The 12-2-99 ruling stated that the law does imply a definition of spouse as a marriage between a man and a woman, and thus, violates the constitution. The court ordered the department to return to offering exemptions for same-sex partners of South African gays until parliament rewrites the law to be explicitly inclusive of them.
NOTE: 1. Stanley Mogoba, Member of the National Assembly, President of the Pan-African Congress (PAC) party, is anti-gay.
2. Edwin Cameron, High Court Justice, Witwatersrand Division, is openly homosexual.

 

Source:   http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/

South Africa - Afrique du Sud - Suráfrica                      Pretoria

ll. Rape
The sexual Offences Act, no 23 of 1957
Quite apart from the actual fact of possession or distribution of child pornography, the provisions
of the Sexual Offences Act might also find application. Although this Act is completely outdated (a
new Sexual Offences Act will hopefully soon be promulgated) section 14 deals with sexual offences
with youths and prohibits

carnal intercourse or an attempt thereto, if the child is under 16 years
the commission of an immoral or indecent act or an attempt thereto, if the child is under 19 years
the solicit or enticement of a child under 19 to commit an immoral or indecent act.

If it can also be proved that pornographic material was utilised in an attempt to commit any of the
above acts, the accused should be prosecuted also for contravening this section.

V. Child pornography
Introduction
Legislative provisions dealing with Child Pornography are now contained in the Films and
Publications Act, no 65 of 1996, which Act became operative on 16 January 1998, apart from those
sections creating offences: these only became operative on 1 June 1998. This Act has been
amended by the Films and Publications Amendment Act. no 34 of 1999, which became operative
on date of publication, being 30 April 1999. [Of course, any sexual act committed with a child is also
punishable in terms of the Sexual Offences Act]

The 1999 Amendment Act is of import. The introduction thereof reads inter alia:.. to amend the
Films and Publications Act, 1996 .... to provide for the protection of children against mental,
physical and sexual exploitation or coercion to engage in the production of a pornographic film,
publication or visual presentation...

The 1999 Act furthermore substitutes section 2 of the main Act dealing with the objects of the Act
by now providing that the protection of children against sexual exploitation or degradation in
publications, films and on the Internet is of particular concern and the object of the Act is (also) to
make such conduct punishable.

Relevant provisions of the Act, as amended. dealing with child Pornography

1. Child Pornography
The prohibitions in the Act dealing with child pornography, refers to the relevant schedules where
reference is simply made to "child pornography" (vide schedule 1 (1) (a) and schedule 6 (1) (a))

Child Pornography is defined in section 1 of the Act and reads: '"child pornography" includes any
image, real or simulated, however created, depicting a person who is or who is shown as being
under the age of 18 years, engaged in sexual conduct or a display of genitals whichamounts to
sexual exploitation, or participating in, or assisting another person to engage in sexual conduct
which amount to sexual exploitation or degradation of children

Sexual conduct is described in schedule 11, which reads: "For the purpose of these Schedules
"sexual conduct" means genitals in a state of stimulation or arousal, the lewd display of genitals;
masturbation; sexual intercourse, which includes anal sexual intercourse; the fondling, or
touching with any object, of genitals; the penetration of a vagina or anus with any object; oral
genital contact; or oral anal contact."

2. The Act makes a clear distinction between visual presentations of child pornography and descriptions, whereby
acts amounting to child pornography are predominantly and explicitly. described. A further clear distinction is
made with reference to Publications and Films. Both publication and film are widely defined in section 1 of the
Act.

3. The commission of an offence with reference to Described Child Pornography

1. section 25(a) prohibits the distribution of publications classified with an xx.

Schedule I of the Act provides for an xx classification if the publication (1) contains a visual
presentation, simulated or real, of
(a)child pornography or
(b)-(e)
(2) it or any independent part thereof, describes predominantly and explicitly the acts defined in
clause (1) (a) In section I of the Act, "distribute" is defined as : "(b) in relation to a publication,
without derogating from the ordinary meaning of that word, includes display in public, or sell, hire
out or offer or keep for sale or hire and,for purposes of section 25(a) and (b), includes hand or
display a publication to a person under the age of 18 years (note: section 25 only prohibits the
distribution of a publication that has already been classified xx)

2. Section 28(1) prohibits the distribution of publications both with reference to visual
presentations and described child pornography. (The extended definition of distribution does not,
however, apply and, if the publication is not classified as xx, it would appear debatable whether to
hand or display the unclassified described child pornography to a child under 18 would amount to
an offence in terms of this Act.)

3. [Section 26 (1) (a) prohibits the exhibition or distribution of a film that has not been classified or
that has been classified xx. However, films are not incorporated in the sections or schedules dealing
with described child pornography.]

4. [Section 27 prohibits the possession of publications or films containing visual presentations or
scenes of child pornography only. The possession, creation, production or import of a publication
containing described child pornography is not prohibited. ]

5. To summarise: the distribution of described child pornography is an offence and, if classified,
also the hand or display thereof to a child under 18. No offence, it seems, is committed in terms of
this Act by the creation, production or possession of described child pornography or by the
(mere) downloading of described child pornography, and possibly also when handing or
displaying unclassified described child pornography to a child under 18, despite the very wide
definition of publication in section I of the Act, which includes "(b)any writing or typescript
which has in any manner been duplicated"; "(e) any record, magnetic tape, soundtrack,... or any
other object in or on which sound has been recorded for reproduction" and "(i) any message or
communication, including a visual presentation, placed on any distributed network including but
not confined to the Internet"

4. The commission of an offence with reference to visual presentation. or containing a scene or scenes of Child
Pornography

1. Visual Presentation is defined in section 1 as "(a) a drawing, picture, illustration, painting,
photograph or image or (b) a drawing, picture, illustration, painting, photograph or image or
any combination thereof produced through or by means of computer software on a screen or a
computer print-out"

2. In section 1 computer software is defined as "a programme and associated data capable of
generating a display on a computer monitor, television screen, liquid crystal display or similar
medium that allows interactive use"

3. Section 25(a) prohibits the distribution. of a publication that has been classified as xx, which, as
set out in schedule 1, includes the distribution of a publication which contains a visual
presentation, simulated or real, of child pornography.

4. Section 26(1)(a) prohibits the exhibition or distribution of a film if it has not been classified or if it
has been classified xx. (In terms of schedule 6(l), a film containing a scene or scenes, simulated or
real, of (inter alia) child pornography is classified xx.)

5. Section 26(4) prohibits the broadcasting of a film classified xx or, if not classified, if it falls within
schedule 6, thus, if it contains a scene or scenes of child pornography.

6. Section 27(1)(a) prohibits a person to knowingly create, produce, import, or possess a
publication which contains a visual presentation of child pornography and section 27(1)(b)
provides for a similar prohibition with reference to a film containing a scene or scenes of child
pornography, but also including distribution thereof

7. Section 28(1) prohibits the distribution of a publication which contains a visual presentation of
(inter alia) child pornography.

8. To summarise: the import, possession, creation, production, distribution and, in the case of films,
also the exhibition and broadcasting of the visual presentation or of a scene or scenes of child
pornography, whether classified xx or not, is an offence in terms of this Act.

Possible defences

1. Schedule 5 is headed "Art and Science Exemption for Publications" whilst schedule 9 has a similar heading
relating to Films. In both instances it is stated that the xx classification shall not be applied in respect of a bona fide
scientific or documentary publication or film, or literary publication or dramatic film. The further exemption with
reference to an artistic publication or film is explicitly excluded in the case of child pornography.

2. Section 22 provides that certain persons or institutions can be exempted from the provisions of sections 25, 27
and 28 whilst newspapers or posters of newspapers published by a publisher that is a member of the Newspaper
Press Union of South Africa is so exempted.

Conditions to comply with

1. In the case of contraventions of sections 26(4), 27(l)(a) and (b) and 28(1), the State has to prove, prior to
conviction, that the Films and Publications Board has not given a decision that the relevant publication or film does
not qualify for an xx classification.

2. In the case of contraventions of section 27 (1) (a) and (b), no search warrant may be issued without the written
authority of the Director of Public Prosecutions. (In the Transvaal, all prosecutors have been delegated this
authority, subject to prior consultation with the DPP if not a Senior Prosecutor)

3. In the case of contraventions of sections 26 (4) and 27 (1) (a) and (b), no prosecution may be instituted without
the written authority of the Director of Public Prosecutions. (In the Transvaal, this authority has not been
delegated)

4. In the case of prosecutions relating to material that has been classified, the classification must also have been
published in the Government Gazette.

Sentence (section 30)

A sentence of a fine or 5 years imprisonment or, if aggravating circumstances are predominant both such fine and
imprisonment, may be imposed (a licence to conduct an adult premises may also be withdrawn and the holder be
disqualified for a period of 12 months to obtain another such licence) for contraventions of sections 25 (a), 26 (1)
(a), 26 (4), 27 (1) (a) and (b) and 28 (1).

Possible Problematic areas with reference to the Internet

In a document titled 'combatting use of the Internet to exploit children", drafted by a working group of the
International Association of Prosecutors, recommendations are made for the effective law enforcement against use
of the internet to exploit children. These recommendations are as follows:

1.Laws must prohihit use of the internet to commit or facifitate crimes relating to child
pornography and child abuse.

As discussed supra, present legislative provisions do prohibit the distribution** of
child Pornography in whatever form on the Internet. The Act does not cater for
extraterritorial distribution). However, the possession or creation of any kind of
visual Presentation of child Pornography on Computer software and the placement
thereof on any distributed network including but not confined to the Internet, is
prohibited. Legislation is thus in place. (The luring of children via the Internet is
dealt with in the Sexual Offences Act******)

2. Child pornography should he defined to include electronically created or altered images.

This is clearly the position, given the definitions of Child Pornography, Computer
software, Publication and Visual presentation in section 1 of the Act.

3. Information about child pornographers and pedophiles whose conduct intrudes on other
countries should he shared with the relevant enforcement agents and extradition treaties and
mutual legal assistance should he utilised wherever possible.

In the one matter I had to deal with, the child Pornography was obtained via the
internet from some other country. Neither myself nor the investigating officer had
any idea how to establish the necessary information so as to further this with the
relevant authorities. Proper training is essential, given the international dimension
created by the Internet Policy guidelines of both the SAPS and the Prosecuting
Authority should also prescribe action to be taken in this regard.

4. Countries should designate a point of contact.

This recommendation is closely linked to the previous one. In clarification, the
working group states the following: A point of contact will be able to assist foreign
prosecutors and investigators or identify who can provide assistance. A contact list
of those designated should be published by The Interpol Standing Working Party
on Offenses Against Minors, making it widely available. Furthermore, a computer
Pornography unit within the law enforcement component should also be established.
If not yet operative, these proposals should receive serious consideration.

5 Internet Service Providers, law enforcement agents and Prosecutors should Cooperate in the
sharing of relevant information, especially with reference to what information can be made
available, what exceptions to privacy laws exist and to what extent assistance can he rendered.

Mutual training exercises are of import and will furthermore establish useful
relationships.

6 The public should be educated about responsible use of the Internet and potential dangers.

The working Group states that in many cases where children have been solicited for
sex over the Internet or have received child pornography from adults, the children's
use of the Internet was not supervised. Parents are not aware of the inherent dangers
and risks involved, nor that steps can be taken in order to safeguard their children.
Such education seems important. I am not aware of any steps that have been taken
in this regard.

7. ISP's should retain Internet Protocol Addresses for at least a year and legislation should he
enacted to ensure the preservation of traffic and subscriber data upon written request.

The retention of critical evidence that might be destroyed in the normal course of
events, is of the utmost importance. No relevant legislation exists and it is not known
to what extent ISP's are prepared to Cooperate. Urgent steps, both with reference to
enacting the required legislation and obtaining goodwill and co-operation appear
essential.

8. ISP's that fail to provide data should he sanctioned.

This is possible in terms of section 205 of the Criminal Procedure Act, whereby an
ISP can be compelled to provide data that is available. Should such data be
destroyed after a lawful request has been made, a prosecution for defeating or
obstructing the course of justice will be possible.

9. ISP's should he able to assist 24 hours a day

This is essential in cases of emergency where for instance a child has gone missing,
having left to meet someone he/she has met on the internet, and the only information
available is a screen name.

10. ISP's should he held criminally responsible if they knowingly assist in the distribution of child
pornography.

The recommendation is that if it is brought to the attention of an ISP that there is a
clear instance of child pornography on its server and if the ISP is in a position to
delete or block the images, the the failure to do so should be an offence and a
prosecution should be instituted. In terms of the SA legal position, such failure to
act may amount to the aiding and abetting of a crime and it may be argued that a
legal duty exists for the ISP to act, in which event a prosecution will be possible.
However, legislation creating such an offence will create certainty and thus appears
to he a better option.

11. ISP's should report child pornography to the police when they learn of it on their systems

The working group recommends that legislation similar to that requiring of
photography development studios to report images of child pornography, be
enacted with reference to ISP's At present, no legislation exists requiring reporting
from either photographic development studios or Ms. However, the development of
photo's of child pornography is an act of assistance and a prosecution on grounds
of aiding and abetting the crime of possession is possible. It would appear that the
position with reference to ISP's is somewhat different in that no positive act is done
in furtherance of the crime, the culpability lying rather in the failure to act which is
only punishable if it can be argued that a legal duty to act exists.

 

 

EDITORS' NOTE:  We received this email regarding South Africa.   As we have had no other communications from anyone in South Africa, we decided to list it with this caveat.  The email makes reference to a 16 year MALE having sex to a 21 year old FEMALE with no objections from parents.  Historically it is the FEMALE's parents that file objections, and in this case, it may not be the same if the ages were reversed.

Subject:
Age of Consent in South Africa.
Date: 28 Dec 98 14:57:15 CST
From: Flare flare@usa.net

I would like to confirm that you are almost correct with the ages of consent for South Africa.

For hetro relationships 16 is the age of consent. My wife was 16 and I was 23 when we started our relationship. Although her parents objected, there was nothing legally they could do, except because she was still a minor, they could keep her 'locked up' in their house.  For gay sex, the age is 18 if both are under 21 years of age. If one is over 21, then it is an offence. Hope this adds some clarity.


From: CHEZInc@aol.com
Subject: South Africa, Age of Consent
Date:  Saturday, 10 Oct 1998 23:48:43 EDT

I can't confirm this... but I am engaged to an 18 year old South African male, who swears that the age of consent for hetro sex is 16... and he had a 21 year old girlfriend at 16, who he had sex with, with no objection from parents. Just thought I'd let you know, since your guide, which I just happend upon says 17.

 

For example, in South Africa, the age of consent in respect of the common-law crime of rape is the same as in Namibia at present - 12 for girls and seven for boys - although reform is expected in future. This position is supplemented by a Sexual Offences Act which makes it an offence for men or women to have sexual intercourse with persons of the opposite sex who are under the age of 16 years, regardless of consent. The relevant age in respect of homosexual contact between two males or two females is 19. No age gap is specified for either offence.

    (from Namibia)

 

Some Intersting Statistics:

The most common age-range of the street-child in South Africa is 13-16. In First World
countries such as Canada, the average age is older than 16.
A third of all street children in South Africa returns home in a short period of time. Another third
stays on the street for periods ranging from anywhere between 6-18 months. The other third stays
for more than two years. In First World countries most street children return within one month.
80% of street children have a history of either physical, sexual or emotional abuse.

 

Update April 2001:

Principal held for statutory rape of pupil
DUMISANE LUBISI reports


A NORTHERN Province primary school principal was arrested on Monday for the statutory rape of a pupil
of 15 who bore a child. 

Aged 48, he is from Ga-Molepo village near Burgersfort, and is due to appear in the Nebo District Court on
Wednesday.  The head of Hlogotlou detectives, Inspector Kgobeng Magakwe, on Tuesday said the man was arrested at the
school.

Magakwe said police started investigating a few weeks ago, when schools were on holiday, and the principal's home
address was not known at first.  He allegedly started abusing the girl last year, when she was 15-year-old pupil at his school.

"He allegedly gave her bus fare for 60km return trips away from the village where he was staying, so he could meet her
in his car," said Magakwe.

The girl, now 16, claimed this happened many times.  At first she kept quiet, but finally told her parents in January
when she gave birth to a boy, and they withdrew her from the school.

A 50-year-old man appeared briefly in the Nebo District Court on Monday in connection with raping a 12-year-old
girl. July Petrus Skhosana, of Sterkfontein village, was not asked to plead and was remanded in custody to April 17.

Neighbours allegedly found him raping the girl in his home last Wednesday, after enticing the girl with sweets.
-- African Eye News Service, April 13, 2000.

 

Sexual Offenses Against Children
FROM:  (http://www.law.wits.ac.za/salc/issue/ip10.html#4.10 Statutory sexual offences)

4.10 Statutory sexual offences

4.10.1 The scope of the traditional common-law prohibitions has been supplemented by legislative provisions aimed particularly
at the regulation of sexual activity involving children and other vulnerable persons, homosexuality and the various
manifestations of prostitution. These statutory prohibitions upon sexual activity are essentially contained in the Sexual Offences
Act, 1957. The Act prohibits "unlawful sexual intercourse" which is defined as carnal intercourse otherwise than between
husband and wife.(83)

Other very important pieces of domestic legislation for the protection of children are the Child Care Act, 1983 and the Prevention
of Family Violence Act, 1993. We will also briefly deal with child pornography.

4.10.2 In this regard, the following important questions must be addressed:

Is there a need for a single sexual offences act for children? If not, does the Sexual Offences Act, 1957 adequately deal with
sexual offences against children? Do we need to look at the whole of the Sexual Offences Act, 1957 or should this investigation
concentrate on those provisions of the Act specifically dealing with children?

Should sexual offences against children not form part of child care and accordingly be dealt with in terms of the Child Care Act,
1983? Should the mandatory reporting of sexual offences committed in the family context be dealt with in terms of the Prevention
of Family Violence Act, 1993?

4.11 The Sexual Offences Act, 1957

4.11.1 According to its long title, the Sexual Offences Act, 1957 consolidates and amends the "laws relating to brothels and
unlawful carnal intercourse and other acts in relation thereto." As such the Act does not specifically focus on sexual offences
by and against children. Some of the provisions of the Act do, however, proscribe certain sexual conduct with youths.

4.11.2 In most legal systems sexual intercourse with young persons is subject to strict prohibition controls.(84)

Sexual intercourse with prepubescent children is regarded as the serious common law crime of rape and punished as such. Sexual
intercourse with pubescent youths is regulated by fixing a so-called 'age of consent' which determines the age at which
consensual intercourse with youths is permitted. Sexual intercourse with a youth who has not yet arrived at the age of consent
is penalised by statute. This is also the case in South Africa.

° Section 14 of the Sexual Offences Act, 1957

4.11.3 Section 14(1) of the Sexual Offences Act, 1957, for instance, reads as follows:

Any male person who -

(a) has or attempts to have unlawful carnal intercourse with a girl under the age of 16 years; or

(b) commits or attempts to commit with such girl or with a boy under the age of 19 years an immoral or indecent act; or

(c) solicits or entices such a girl or boy to the commission of an immoral or indecent act,

shall be guilty of an offence.

4.11.4 Subsections 14(3) and (4) of the Sexual Offences Act, 1957 deals with precisely the same conduct as that dealt with under
subsections 14(1) and (2) of the same Act, the only difference now the reversal in sexes. The result is that there is no
discrimination in section 14 between males and females: what is prohibited for the one sex, is also prohibited for the other sex.

4.11.5 The offences created by section 14 are important. It means that if the accused is charged with rape, but the evidence
shows that the complainant, who is not yet 16 years old, consented to sexual intercourse, then the accused is guilty of
contravening either section 14(1)(a) or 14(3)(a) of the Sexual Offences Act, 1957.(85)

If the accused has "carnal intercourse" with a girl under the age of 12 years, he commits, in addition to rape, also a contravention
of section 14(1)(a). Carnal intercourse, which is not defined in the Sexual Offences Act, 1957, is generally understood as a
legislative euphemism for copulation between a man and a woman by penetration of the vagina by the penis.(86)

What should the age of consent be? Is section 14 of the Sexual Offences Act, 1957 an effective mechanism to prevent the sexual
abuse of children? Why restrict "carnal intercourse" to penetration of the vagina by the penis?

4.11.6 The offences created in sections 14(1)(b) and 14(3)(b) can only be committed withyouths. In other words it is not sufficient
for an immoral or indecent act to be committed in the presence of the young person.(87)

An immoral or indecent act is associated with sexual behaviour. In relation to sexual matters the concept of immorality normally
denotes extra-marital sexual intercourse. The term "indecent" would, on the other hand, seem to comprehend acts ranging from
"external" sexual intercourse,(88)

masturbation,(89)

and oral-genital intercourse,(90)

to the baring of the body for purposes of inciting sexual desire(91)

or facilitating sexual activity, to kissing and fondling or touching of erogenous parts of the body in a way that incites lust,(92)

but falls short of or not involving actual sexual intercourse.

Should the scope of the offences created by section 14(1)(b) and 14(3)(b) of the Sexual Offences Act, 1957 be broadened to
include intentional exposure of a child to an immoral or indecent act? Is there any justification in requiring a different age of
consent (19 years) when it comes to immoral or indecent acts as opposed to sexual intercourse (16 years)? What should the age
of consent be?

4.11.7 Sections 14(1)(c) and 14(3)(c) penalize also an inchoate form of corruption of young persons by prohibiting under penalty
the "solicitation" or "enticement" of boys or girls to commit immoral or indecent acts. Solicitation involves asking or earnestly
inviting and thus connotes beguiling, alluring or petitioning.(93)

The notion of enticement involves the alluring or attracting of persons by hope of pleasure or profit. The term connotes
particularly a petitioning. Any offer or proposal made involves an enticing.(94)

4.11.8 The offences in section 14 are not committed if:(95)

(a) the parties are married;(96)

(b) the accused was deceived as to the girl or the boy's age;(97)

(c) the girl or the boy at the time of the commission of the offence was a prostitute, the accused was at the said time under the
age of 21 years(98)

and it was the first occasion on which the accused has been charged(99)

with this offence.

Is there any merit in retaining these defences?

4.11.9 Snyman(100)

criticises the formulation of the offences created by section 14(1) and the defences set out in section 14(2). He shows that the
Act used to provide that it was a sufficient defence to a charge under this section that the accused at the time of the commission
of the offence was under the age of 16 years.(101) The defence was abolished in 1988.(102)

This leads to the unsatisfactory situation that a boy of say, twelve, thirteen years who has sexual intercourse with a girl nearly
sixteen is guilty of committing this offence, even if the girl took the initiative.(103)

4.11.10 According to the interpretation given by the courts to section 14(2) the accused cannot rely on his error in regard to the
girl's age. If, for example, the girl was nearly 16 years old, physically more developed than her peers, and the accused simply
bona fide believed that she was 16 years old, then his lack of knowledge - and accordingly his lack of intent - cannot save him
harmless from conviction. According to our courts, the legislature specifically created the defences in section 14(2) and thereby
excluded other defences, such as error in regard to the girl's age by implication. Section 14(1) is then one of the so-called
strict-liability offences where culpability is not required.(104)

For Snyman this is a pity as he believes there is no reason why the general fault principle should not also apply in this
instance.(105)

4.11.11 Insofar as the prohibition pertains to immoral and indecent acts with girls under the age of 19 years, its effect is to
proscribe certain lesbian forms of sexual activity. It is not clear to Snyman(106)

whether this offence(107)

is committed by both females or whether it is committed only by the "active" party (i.e. the female older than 19 years of age). He
then submits that it was the intention of the legislature to protect women under the age of 19 years from such immoral or
indecent acts and that the girl under the age of 19 years should be regarded as the victim and should not be guilty of committing
the offence.(108)

Snyman(109)

further shows that it is not clear whether this section is contravened when both females are under the age of 19 years. He
submits that it appears that the section does not preclude such a possibility. What is clear, however, is that the offence cannot
be committed if both females are older than 19 years.

Is there merit in the criticisms offered by Snyman?

° Prostitution

4.11.12 The law (and society) has adopted an ambivalent attitude towards prostitution. On the one hand prostitution(110)

is universally condemned as a social evil and the prostitute is condemned and penalized for the manner in which he or she
carries on their profession. On the other hand, prostitution is tolerated to the extent that it is not forbidden to be a prostitute and
the prostitute's customers are allowed to enjoy the prostitute's services with impunity.(111)

4.11.13 In South Africa, the child prostitute can be prosecuted in terms of the Sexual Offences Act, 1957 for a variety of offences
relating to the practise of his or her trade(112)

while the client walks away scot-free.(113)

These provisions are not dealt with in this issue paper as the Commission condemns child prostitution in all forms.(114)

Should more stringent measures be adopted in the form of e.g. revoking trade licences, confiscation of property, fines, etc. to be
invoked where children are being accommodated on premises for the purpose of prostitution? Is it fair to brand the child
prostitute a criminal?

° Procuring of child or ward by parent or guardian for prostitution

4.11.14 It is an offence in terms of section 9 of the Sexual Offence Act, 1957 for any parent or guardian of any child under the age
of 18 years to permit, procure or attempt to procure such child to have unlawful carnal intercourse or to commit any immoral or
indecent act with any person other than the procurer. It is also an offence for any parent or guardian of any child under the age
of 18 years to permit such child to reside in or to frequent a brothel.(115)

It is further an offence for any parent or guardian of any child under the age of 18 years to order, permit, or in any way assist in
bringing about, or receiving any consideration for, the defilement, seduction or prostitution of such child.(116)

In terms of this section the term "guardian" includes any person who has in law or in fact the custody or control of the child.(117)




4.11.15 Unlike the other offences of procuration, these offences are committed in respect of both female and male children. The
offences are, however, committed only if the child is under the age of 18 years.

° Child sex tourism

4.11.16 The widespread development of child sex tourism is a relatively recent phenomenon, which is not addressed at all by any
of our current legislation. Initially concentrated in South East Asia, child sex tourism has now spread to many countries in Asia
itself, South America, the Caribbean and Africa.(118)

In foreign jurisdictions, laws are being enacted which provide for example for sanctions against child molesters for offences and
crimes committed abroad.(119)

Several countries have taken(120)

or are(121)

in the course of taking this line. The key elements in combatting child sex tourism would be the possibility of giving national
courts extra-territorial jurisdiction for offences and crimes committed against children abroad, even where the presumed offence
or crime is not provided for under the laws of the country in which it was committed.

Should South Africa follow the international trend and provide for sanctions to end and prevent child sex tourism?

Rape suspect held in custody
FROM:  (http://www.dispatch.co.za/2000/01/07/easterncape/RAPE1.HTM)

GRAHAMSTOWN --
A 52-year-old local man accused of raping an eight-year-old girl was ordered to be held in
custody yesterday, pending a decision from the Director of Public Prosecutions.

Appearing before district court magistrate Sarel Strauss was Viwe Ncwadi, who is accused of
raping the little girl in C-Street on December 16.

Alternately he is charged with statutory rape or unlawful sexual intercourse with a girl under the
age of 16 years.

Ncwadi was arrested on December 21 after the girl told her mother about the incident.

He was not asked to plead and the case was postponed to January 25.

The girl required medical treatment for the injuries suffered from the alleged rape.

Mr Johan Conradie appeared for the state and Mr Xolani Mvula appeared for Ncwadi. -- ECN

 

 

 

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