SKWEYIYA ADCJ
that challenge its capacity to grant a just and equitable interim order. The Sexual
Offences Act creates complex mechanisms regulating the treatment of offenders
following their conviction. Of these, only section 50(2)(a) is before us. This Court
cannot craft an interim remedy within the bounds of our democratic limits that would
not do violence to the statutory scheme.
[55]
There is no evidence before us that children or persons with mental disabilities
will not be harmed. This Court cannot issue a moratorium on the registration of
further child offenders or allow the declaration to operate retrospectively.
Register fulfils an important purpose.
The
Given the urgency of protecting vulnerable
persons from sexual abuse in places where they should be safe, it is not just and
equitable for the provision to cease to operate in the interim.65
[56]
For these reasons, section 50(2)(a) must be declared constitutionally invalid and
Parliament must be instructed to remedy the defect within 15 months, during which
period the declaration will be suspended. Given that the rights infringements to child
offenders will continue to operate in the interim period, a shorter period for correction
of the defect is preferred. Because the constitutionality of certain provisions of the
Sexual Offences Act in relation to their effect on children is already under
65
I am aware of the existence of the National Child Protection Register, operating in terms of sections 111-28 of
the Children‘s Act. While the National Child Protection Register may afford similar protections to children as
does the Register under present consideration, no independent register exists in my knowledge to protect
persons with mental disabilities. However, insofar as there is any similarity or overlap with the Register
presently under consideration, it would be prudent for the Legislature not to consider section 50(2)(a) of the
Sexual Offences Act in isolation.
29
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