sexual health and human rights in the african region - The ICHRP

eform that had been taking place in the country. In 2007, following a process of
research and consultation by the South African Law Commission, 406 the South
African Parliament had passed the Criminal Law (Sexual Offences and Related
Matters) Act. 407 Sections 15 and 16 of this Act repeal section 14 of the Sexual
Offences Act of 1957 and set 16 years as the uniform age of consent for all
consensual sexual activities. The Supreme Court of Appeal also took judicial
notice of the fact that the majority of countries outside South Africa had set a
uniform average age of 16 years as the age of consent for same-sex and
heterosexual Acts. 408
[30] The Geldenhuys case is a positive contribution towards promotion of sexual
health as a human right. It seeks to reconcile the imperative of recognizing that
children are a group that is vulnerable and thus ought to be protected from
sexual exploitation with a concomitant recognition that some children are in fact
capable of making autonomous decisions about their sexuality and expressing
their sexuality in sexual activities. In this sense, the decision is in line with the
principle of the evolving capacities of a child that is contained in article 5 of the
Convention on the Rights of the Child. Furthermore, the decision is significant
for reinforcing the imperative of recognizing the equality of diverse sexualities
and the undesirability of perpetuating the marginalization and stigmatization of
gay and lesbian sexuality.
[31] At a more general level, Geldenhuys demonstrates clear willingness by a South
African appellate court to develop common law in line with the spirit and objects
of the Constitution. The decision of the Supreme Court of Appeal in Geldenhuys
has been consolidated by a provision of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act which puts the rule laid down by the case on
an express statutory footing and repeals section 14 of the Sexual Offences Act.
[32] In terms of statutory reform of age of consent, Section 15 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act No 32 of 2007 409 makes it
an offence for a person to commit an act of sexual penetration with a ‘child’, that
is a person who is at least twelve years but has not yet attained sixteen years.
Consent on the part of the child is irrelevant. This is not an entirely new offence
as statutory rape was recognized before the Act. What the new Act does,
however, as alluded to earlier in the discussion on the Geldenhuys case is to
remove the discriminatory anomaly in the provision of different ages for male
406 South African Law Commission Sexual Offences Against Children Issue Paper 10 (Project 108) Pretoria:
South African Law Commission (1997); South African Law Commission Sexual Offences: Substantive Law
Discussion Paper 85 (Project 107) Pretoria: South African Law Commission (1999).
407 Act No 32.
408 Geldenhuys v The State para 61.
409 The broader purview of this Act is discussed in section 5.2 below.
124