24 16 (1) A person (“A”) who commits an act of sexual violation with a child (“B”) is, despite the consent of B to the commission of such an act, guilty of the offence of having committed an act of consensual sexual violation with a child. (2)(a) The institution of a prosecution for an offence referred to in subsection (1) must be authorised in writing by the relevant Director of Public Prosecutions if both A and B were children at the time of the alleged commission of the offence: Provided that, in the event that the Director of Public Prosecutions concerned authorises the institution of a prosecution, both A and B must be charged with contravening subsection (1). (b) The Director of Public Prosecutions concerned may not delegate his or her power to decide whether a prosecution in terms of this section should be instituted or not.’ In terms of s 1(1) of the 2007 Act, ‘child’ means – ‘(a) a person under the age of 18 years; or (b) with reference to sections 15 and 16, a person 12 years or older but under the age of 16 years.’ (Emphasis added) The definitions of ‘sexual penetration’ and ‘sexual violation’ in s 1(1) of the 2007 Act are very detailed and it is not necessary, for the purposes of this case, to reproduce them. Suffice it to say that ‘sexual penetration’ includes both vaginal and anal penetration by, inter alia, the male genital organ, while ‘sexual violation’ includes all the other ‘immoral’ or ‘indecent’ acts which the appellant is alleged to have committed with the complainant in this case. I will return to the relevance of these provisions of the 2007 Act later. [57] The constitutional arguments advanced by counsel for the appellant can be disposed of briefly. While it may be true that the cognitive development of a boy or a girl of the age of 12 years may in certain cases be such that the child might be regarded as competent to make rational and informed decisions concerning his or her sexual activity with other persons, this does not mean that the legislature necessarily acted unconstitutionally by setting, in s 14 of the 1957 Act, what counsel dubs an ‘arbitrary age of (legal) consent’ above the age of 12 years for all children. (Indeed, counsel conceded that the ‘unisex’ age limit of 12 years championed by him is also arbitrary, as also is the legislative setting of most age limits, such as the age of 18 years as that at which a person is eligible to vote or to obtain a driver’s licence, for example.)