SKWEYIYA ADCJ
legitimate and constitutionally sound aims, there exist accessible and direct means to
achieve the purpose that are less restrictive to the child offender‘s rights.
Section 50(2)(a) is constitutionally invalid and must be declared so.
Remedy
[52]
Following a declaration of constitutional invalidity, the Court is empowered to
grant a just and equitable remedy,64 which may include ordering a suspension of the
declaration and a temporary reading-in, as the High Court did.
[53] The state respondents have pointed to a number of problems in the
High Court‘s order, including that the interim reading-in leads to inequitable results
for different categories of offenders.
The applicant is in favour of an interim
reading-in but is against a retrospective declaration of constitutional invalidity as there
may be child offenders on the Register who do pose a threat as sexual predators. The
amici argued for a 12-month period of suspension of the order of constitutional
invalidity coupled with a moratorium against further children‘s particulars being
placed on the Register. This, they argued, would be a low-risk solution that is cleaner
than the reading-in proposed.
[54]
The Legislature must be afforded time to correct the constitutional defect,
taking into account expert opinion on the unique circumstances of child sex offenders
and victims in South Africa. The Court is confronted with a number of difficulties
64
Section 172(1) of the Constitution.
28
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