MOKGORO J
[40] The Supreme Court of Appeal ordered, in effect, that it would be just and
equitable for the age limit to be set at 16 years for all victims of section 14(1)(b) and
14(3)(b) offences. It was contended on behalf of the first and second respondents that
the victim age limit in respect of these offences should be increased to 18 years. This
was the only contested issue in this Court.
[41] The contention had two legs.
The first was that the Constitution and all
international instruments had set 18 years as the upper limit for the ages of children.
Secondly, it was submitted that there was an incongruity between this legislation and
other national legislation prohibiting related activity.
For example, as indicated
earlier, section 27(1) of the Films and Publications Act25 prohibits the production of
pornographic images of a child under the age of 18 years. It was urged that the
remedy would be just and equitable because setting a uniform age limit at 18 years
would render the legislation consistent with all these other instruments.
[42] I do not think however that the suggested route should be followed because it
would bring with it serious inconsistencies. Indeed, two unacceptable consequences
would inevitably follow. The one is that the victim age limit for offences relating to
heterosexual intercourse26 will remain at 16 years while that for victims of the
offences with which we are here concerned will be 18 years. The other is that the
legislation that has repealed and replaced the provisions at issue in this case has set the
victim age limit at 16 years for offences comparable to those created by section
25
65 of 1996.
26
Prohibited in terms of section 14(1)(a) and section 14(3)(a) of the Act.
18
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