Age of simple majority

Of The Age of Majority Act, Act 57 of 1972, as amended by the General law Amendment Act, Act 49 of 1996, Section 1 states that all persons whether males or females, attain the majority when they attain the age of 21 years.

Section 2 states that any person who has attained the age of 18 years may, subject to the provisions of the abovementioned Act, apply to the provisional division of the Supreme Court of South having jurisdiction in the area within which such person is ordinarily resident (hereinafter referred as the Court) for an order declaring him to a major.

Age of consent for sexual activity

There is no specific age stipulated by law. The Sexual Offences Act, Act N° 23 of 1957, indicates ages when intercourse or immoral or indecent acts against females and males will be regarded as offences.

Age of consent for marriage

The age of consent for marriage is 21 years, unless the parent or guardian give consent on behalf of the minor, or declaration of a minor to majority is obtained.

The rape is a Common Law offence in South Africa.
A male having unlawful and intentional sexual intercourse with a female without her consent.

Having intercourse with a girl under 12 years of age is considered statutory rape.

According to the common law:

1) Incest- The unlawful and intentional sexual intercourse between male and female persons who are prohibited from marrying each other because they are related within the prohibited degrees of consanguinity, affinity or adoptive relationship.

2) Abduction - The unlawfully and intentionally removing an unmarried minor from the control of his/ her parent or guardian in order to enable someone to marry him/her or to have sexual intercourse with him/her.

According to Sexual offences Act, 1957, Section 14:

Sexual offences with youths

1) Any male person who-

a) has or attempts to have unlawful carnal intercourse with a girl under the age of 16 years; or

b) commits or attempts to commit with such a girl or a boy under the age of 19 an immoral or indecent act; or

c) solicits or entices such a girl or boy to the commission of an immoral or indecent act,
shall be guilty of an offence.

2) It shall be a sufficient defence to any charge under subsection (1) if it shall be made to appear to the court-

a) that the girl at the time of the commission of the offence was a prostitute, that the person so charged was at the said time under the age of 21 years and that it is the first occasion on which he is so charged; or

b) ……..

c) that the girl or person in whose charge she was, deceived the person so charged into believing that she was over the age of 16 years at the said time.

3) Any female who-

a) has or attempts to have unlawful carnal intercourse with a boy under the age of 16years; or

b) commits or attempts to commit with such a boy or a girl under the age of 19 years an immoral or indecent act; or

c) solicits or entices such a girl or boy to the commission of an immoral or indecent act,
shall be guilty of an offence.

4) It shall be a sufficient defence to any charge under subsection (3) if it shall be made to appear to the court-

a) that the boy at the time of the commission of the offence was a prostitute, that the person so charged was at the said time under the age of 21 years and that it is the first occasion on which he is so charged; or

b) ……..

c) that the boy or person in whose charge he was, deceived the person so charged into believing that he was over the age of 16 years at the said time.

Child Care Act, 1983

50A Commercial sexual exploitation of children

1) Any person who participates or is involved in the commercial sexual exploitation of a childe shall be guilty of an offence.

2) Any person who is an owner, lessor, manager, tenant or occupier of the property on which the commercial sexual exploitation of a child occurs and
who, within a reasonable time of gaining information of such occurrence fails to report such occurrence at a police station, shall be guilty of an offence.

3) Any person who is convicted of an offence in terms of this section, shall be liable to a fine, or to imprisonment for period not exceeding 10 years, or to both such fine and such imprisonment.

Sexual Offences Act, 1957

Section 9, Parent or guardian procuring defilement of child or ward

1) Any person who, being a parent or guardian of any child under the age of 18 years-

a) permits, procures, or attempts to procure such child to have unlawful carnal intercourse, or to commit any immoral or indecent act, with any person other than the procurer, or to reside in or to frequent a brothel; or

b) orders, permits, or in any way assists in bringing about, or receives any consideration for, the defilement, seduction or prostitution of the child,
shall be guilty of an offence.

1A) For the purposes of subsection 1 (b) a parent or a guardian whose child has been defiled or seduced or has become a prostitute, shall be deemed to have assisted in bringing about that defilement, seduction or prostitution if he knowingly permitted his child to consort with, or to continue in the employment of, a prostitute or a person with immoral reputation.

2) The term 'guardian' includes any person who has in law or in fact the custody or control of the child.

Section 12, Detention for purposes of unlawful carnal intercourse

1) Any person who takes or detains any female against his will-

a) to or in or upon any house or place that she may be unlawfully carnally known by any male, whether a particular male or not; or

b) to or in a brothel, shall be guilty of an offence.

2) Where a female is in or upon any house or place for the purpose that she might be unlawfully carnally known by any male, whether a particular male or not, or is in a brothel, she shall for the purposes of this section be deemed to have been taken thereto or to be detained therein or thereon against her will-

a) if she is under the age of 16 years; or

b) if she being of or above the age of 16 years and under the age of 21 years, was taken or is detained against her will or against the will of her father or mother, or any person having the lawful care or charge of her.

3) Any person shall be deemed to detain a female in or upon any house or place or in a brothel if, with intent to compel or induce her to remaining or upon such house or place or in such brothel, such person withholds from her any wearing apparel or other property to the possession of which she is entitled or which has been lent or supplied to her by such person or for the purposes of the prostitution; and any such female shall be justified in taking away such wearing apparel as is necessary to enable her to leave such house or place or brothel.

Introduction

Legislative provisions dealing with Child Pornography are now contained in the Films and Publications Act, no 65 of 1996, which Act became operative on 16 January 1998, apart from those sections creating offences: these only became operative on 1 June 1998. This Act has been amended by the Films and Publications Amendment Act. no 34 of 1999, which became operative on date of publication, being 30 April 1999. [Of course, any sexual act committed with a child is also punishable in terms of the Sexual Offences Act]

The 1999 Amendment Act is of import. The introduction thereof reads inter alia:.. to amend the Films and Publications Act, 1996 .... to provide for the protection of children against mental, physical and sexual exploitation or coercion to engage in the production of a pornographic film, publication or visual presentation...

The 1999 Act furthermore substitutes section 2 of the main Act dealing with the objects of the Act by now providing that the protection of children against sexual exploitation or degradation in publications, films and on the Internet is of particular concern and the object of the Act is (also) to make such conduct punishable.

Relevant provisions of the Act, as amended. dealing with child Pornography

1. Child Pornography

The prohibitions in the Act dealing with child pornography, refers to the relevant schedules where reference is simply made to 'child pornography' (vide schedule 1 (1) (a) and schedule 6 (1) (a))

Films and Publications Act 1996 (Act no 65 of 1996)

 Child pornography includes any image, however created, or any description of a person, real or simulated, who is, or who is depicted or described as being under the age of 18 years.

1. engaged in sexual conduct
   
   
2. participating in , or assisting another person to participate in, sexual conduct; or
   
   
3. showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation or in such a manner that it is capable of being used for the purposes of sexual exploitation [Definition of child pornography inserted by s.1 (a) of Act 34 of 1999 and substituted by s.1 (a) of Act 18 of 2004]  

Sexual conduct includes:

1. male genitals in a state of arousal or stimulation
   
   
2. the undue display of genitals or of the anal region
   
   
3. masturbation
   
   
4. bestiality
   
   
5. sexual intercourse, whether real or simulated, including anal sexual intercourse
   
   
6. sexual contact involving the direct or indirect fondling or touching of the intimate parts of a body, including the breasts, with or without any object
   
   
7. the penetration of a vagina or anus with any object
   
   
8. oral genital contact or
   
   
9. oral anal contact [Definition of sexual conduct inserted by s. 1 (f) of Act 18 of 2004]

Possession of certain publications and films prohibited

1. (a) Any person shall be guilty of an offence if he or she

1. is in possession of
   
   
2. creates or produces or in any way contributes to, or assists in, the creation or production of
   
   
3. imports or in any way takes steps to procure, obtain or access or
   
   
4. knowingly exports, broadcasts or in any way distributes or causes to be exported, broadcasts or distributed a film or publication which contains child pornography or which advocates, advertises or promotes child pornography or the sexual exploitation of children

(b) Paragraph (a) does not apply to a person who is in possession of a film or publication containing child pornography if such possession is necessary for the performance of any function in terms of this Act [Sub s (1) substituted by s. 8 of Act 34 of 1999 and by s. 11 (a) of Act 18 of 2004]

2. (a) A person shall be guilty of an offence if he or she having knowledge of the commission of an offence under subsection (1) or having reason to suspect that such an offence has been or is being committed

1. fails to report such knowledge or suspicion as soon as possible to a police official of the South African Police Service, or
   
   
2. fails to furnish, at the request of an official of the South African Police Service, all particulars of such knowledge or suspicion.

(b) No prosecution under this subsection shall be instituted without the written authority of the National Director of Public Prosecutions [Sub s (2) substituted by s. 11 of Act 18 or 2004]

3. Any person who has under her or his control any material referred to in Schedule 1,2,6 or 7 and who fails to take all reasonable steps to prevent access to such materials by a person under the age of 18 years shall be guilty of an offence [Sub s (3) substituted by s.11 (c) of Act 18 of 2004]
   
   
4. Subject to Schedule 5 or 9, as the case may be, the Board shall refer to the South African Police Service for prosecution any film or publication submitted to it in terms of this Act if it contains child pornography [Sub s (4) added by s 11 (d) of Act 18 of 2004]

2. The Act makes a clear distinction between visual presentations of child pornography and descriptions, whereby acts amounting to child pornography are predominantly and explicitly. described. A further clear distinction is made with reference to Publications and Films. Both publication and film are widely defined in section 1 of the Act.

3. The commission of an offence with reference to Described Child Pornography

1. section 25(a) prohibits the distribution of publications classified with an xx.

Schedule I of the Act provides for an xx classification if the publication (1) contains a visual presentation, simulated or real, of

(a)child pornography or

(b)-(e)

(2) it or any independent part thereof, describes predominantly and explicitly the acts defined in clause (1) (a) In section I of the Act, "distribute" is defined as : "(b) in relation to a publication, without derogating from the ordinary meaning of that word, includes display in public, or sell, hire out or offer or keep for sale or hire and,for purposes of section 25(a) and (b), includes hand or display a publication to a person under the age of 18 years (note: section 25 only prohibits the distribution of a publication that has already been classified xx)

2. Section 28(1) prohibits the distribution of publications both with reference to visual presentations and described child pornography. (The extended definition of distribution does not, however, apply and, if the publication is not classified as xx, it would appear debatable whether to hand or display the unclassified described child pornography to a child under 18 would amount to an offence in terms of this Act.)

3. [Section 26 (1) (a) prohibits the exhibition or distribution of a film that has not been classified or that has been classified xx. However, films are not incorporated in the sections or schedules dealing with described child pornography.]

4. [Section 27 prohibits the possession of publications or films containing visual presentations or scenes of child pornography only. The possession, creation, production or import of a publication containing described child pornography is not prohibited. ]

5. To summarise: the distribution of described child pornography is an offence and, if classified, also the hand or display thereof to a child under 18. No offence, it seems, is committed in terms of this Act by the creation, production or possession of described child pornography or by the (mere) downloading of described child pornography, and possibly also when handing or displaying unclassified described child pornography to a child under 18, despite the very wide definition of publication in section I of the Act, which includes '(b)any writing or typescript which has in any manner been duplicated'; '(e) any record, magnetic tape, soundtrack,... or any other object in or on which sound has been recorded for reproduction' and '(i) any message or communication, including a visual presentation, placed on any distributed network including but not confined to the Internet'.

4. The commission of an offence with reference to visual presentation. or containing a scene or scenes of Child Pornography

1. Visual Presentation is defined in section 1 as '(a) a drawing, picture, illustration, painting, photograph or image or (b) a drawing, picture, illustration, painting, photograph or image or any combination thereof produced through or by means of computer software on a screen or a computer print-out'.

2. In section 1 computer software is defined as 'a programme and associated data capable of generating a display on a computer monitor, television screen, liquid crystal display or similar medium that allows interactive use'.

3. Section 25(a) prohibits the distribution. of a publication that has been classified as xx, which, as set out in schedule 1, includes the distribution of a publication which contains a visual presentation, simulated or real, of child pornography.

4. Section 26(1)(a) prohibits the exhibition or distribution of a film if it has not been classified or if it has been classified xx. (In terms of schedule 6(l), a film containing a scene or scenes, simulated or real, of (inter alia) child pornography is classified xx.)

5. Section 26(4) prohibits the broadcasting of a film classified xx or, if not classified, if it falls within schedule 6, thus, if it contains a scene or scenes of child pornography.

6. Section 27(1)(a) prohibits a person to knowingly create, produce, import, or possess a publication which contains a visual presentation of child pornography and section 27(1)(b) provides for a similar prohibition with reference to a film containing a scene or scenes of child pornography, but also including distribution thereof.

7. Section 28(1) prohibits the distribution of a publication which contains a visual presentation of (inter alia) child pornography.

8. To summarise: the import, possession, creation, production, distribution and, in the case of films, also the exhibition and broadcasting of the visual presentation or of a scene or scenes of child pornography, whether classified xx or not, is an offence in terms of this Act.

Possible defences

1. Schedule 5 is headed 'Art and Science Exemption for Publications' whilst schedule 9 has a similar heading relating to Films. In both instances it is stated that the xx classification shall not be applied in respect of a bona fide scientific or documentary publication or film, or literary publication or dramatic film. The further exemption with reference to an artistic publication or film is explicitly excluded in the case of child pornography.

2. Section 22 provides that certain persons or institutions can be exempted from the provisions of sections 25, 27 and 28 whilst newspapers or posters of newspapers published by a publisher that is a member of the Newspaper Press Union of South Africa is so exempted.

Conditions to comply with

1. In the case of contraventions of sections 26(4), 27(l)(a) and (b) and 28(1), the State has to prove, prior to conviction, that the Films and Publications Board has not given a decision that the relevant publication or film does not qualify for an xx classification.

2. In the case of contraventions of section 27 (1) (a) and (b), no search warrant may be issued without the written authority of the Director of Public Prosecutions. (In the Transvaal, all prosecutors have been delegated this authority, subject to prior consultation with the DPP if not a Senior Prosecutor).

3. In the case of contraventions of sections 26 (4) and 27 (1) (a) and (b), no prosecution may be instituted without the written authority of the Director of Public Prosecutions. (In the Transvaal, this authority has not been delegated).

4. In the case of prosecutions relating to material that has been classified, the classification must also have been published in the Government Gazette.

Sentence (section 30)

A sentence of a fine or 5 years imprisonment or, if aggravating circumstances are predominant both such fine and imprisonment, may be imposed (a licence to conduct an adult premises may also be withdrawn and the holder be disqualified for a period of 12 months to obtain another such licence) for contraventions of sections 25 (a), 26 (1) (a), 26 (4), 27 (1) (a) and (b) and 28 (1).

In a document titled 'combatting use of the Internet to exploit children', drafted by a working group of the International Association of Prosecutors, recommendations are made for the effective law enforcement against use of the internet to exploit children. These recommendations are as follows:

1.Laws must prohihit use of the internet to commit or facifitate crimes relating to child pornography and child abuse.

As discussed supra, present legislative provisions do prohibit the distribution** of child Pornography in whatever form on the Internet. The Act does not cater for extraterritorial distribution). However, the possession or creation of any kind of visual Presentation of child Pornography on Computer software and the placement thereof on any distributed network including but not confined to the Internet, is prohibited. Legislation is thus in place. (The luring of children via the Internet is dealt with in the Sexual Offences Act******)

2. Child pornography should he defined to include electronically created or altered images.

This is clearly the position, given the definitions of Child Pornography, Computer software, Publication and Visual presentation in section 1 of the Act.

3. Information about child pornographers and pedophiles whose conduct intrudes on other countries should he shared with the relevant enforcement agents and extradition treaties and mutual legal assistance should he utilised wherever possible.

In the one matter I had to deal with, the child Pornography was obtained via the internet from some other country. Neither myself nor the investigating officer had any idea how to establish the necessary information so as to further this with the relevant authorities. Proper training is essential, given the international dimension created by the Internet Policy guidelines of both the SAPS and the Prosecuting Authority should also prescribe action to be taken in this regard.

4. Countries should designate a point of contact.

This recommendation is closely linked to the previous one. In clarification, the working group states the following: A point of contact will be able to assist foreign prosecutors and investigators or identify who can provide assistance. A contact list of those designated should be published by The INTERPOL Standing Working Party on Offenses Against Minors, making it widely available. Furthermore, a computer Pornography unit within the law enforcement component should also be established. If not yet operative, these proposals should receive serious consideration.

5 Internet Service Providers, law enforcement agents and Prosecutors should Cooperate in the sharing of relevant information, especially with reference to what information can be made available, what exceptions to privacy laws exist and to what extent assistance can he rendered.

Mutual training exercises are of import and will furthermore establish useful relationships.

6 The public should be educated about responsible use of the Internet and potential dangers.

The working Group states that in many cases where children have been solicited for sex over the Internet or have received child pornography from adults, the children's use of the Internet was not supervised. Parents are not aware of the inherent dangers and risks involved, nor that steps can be taken in order to safeguard their children. Such education seems important. I am not aware of any steps that have been taken in this regard.

7. ISP's should retain Internet Protocol Addresses for at least a year and legislation should he enacted to ensure the preservation of traffic and subscriber data upon written request.

The retention of critical evidence that might be destroyed in the normal course of events, is of the utmost importance. No relevant legislation exists and it is not known to what extent ISP's are prepared to Cooperate. Urgent steps, both with reference to enacting the required legislation and obtaining goodwill and co-operation appear essential.

8. ISP's that fail to provide data should he sanctioned.

This is possible in terms of section 205 of the Criminal Procedure Act, whereby an ISP can be compelled to provide data that is available. Should such data be destroyed after a lawful request has been made, a prosecution for defeating or obstructing the course of justice will be possible.

9. ISP's should he able to assist 24 hours a day

This is essential in cases of emergency where for instance a child has gone missing, having left to meet someone he/she has met on the internet, and the only information available is a screen name.

10. ISP's should he held criminally responsible if they knowingly assist in the distribution of child pornography.

The recommendation is that if it is brought to the attention of an ISP that there is a clear instance of child pornography on its server and if the ISP is in a position to delete or block the images, the the failure to do so should be an offence and a prosecution should be instituted. In terms of the SA legal position, such failure to act may amount to the aiding and abetting of a crime and it may be argued that a legal duty exists for the ISP to act, in which event a prosecution will be possible. However, legislation creating such an offence will create certainty and thus appears to he a better option.

11. ISP's should report child pornography to the police when they learn of it on their systems

The working group recommends that legislation similar to that requiring of photography development studios to report images of child pornography, be enacted with reference to ISP's At present, no legislation exists requiring reporting from either photographic development studios or Ms. However, the development of photo's of child pornography is an act of assistance and a prosecution on grounds of aiding and abetting the crime of possession is possible. It would appear that the position with reference to ISP's is somewhat different in that no positive act is done in furtherance of the crime, the culpability lying rather in the failure to act which is only punishable if it can be argued that a legal duty to act exists.

27A Registration and other obligations of Internet service providers

1. Every Internet service provider shall

1. Register with the Board in the manner prescribed by regulation made under this Act; and
   
   
2. take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography.
   
   

2. If an Internet service provider has knowledge that its services are being used for the hosting or distribution of child pornography such Internet service proveider shall

1. take all reasonable steps to prevent access to the child pornography by any person
   
   
2. report the presence thereof, as well as the particulars of the person maintaining or hosting or distributing or in any manner contributing to such Internet address to a police official of the South African Police Service, and
   
   
3. take all reasonable steps to preserve such evidence for purposes of Investigation and prosecution by the relevant authorities

3. An Internet service provider shall upon request by the South African Police Service furnish the particulars of users who gained or attempted to gain access to an Internet address that contains child pornography
   
   
4. Any person who fails to comply with the provisions of this section shall be guilty of an offence [S 27A inserted by s 12 of Act 18 of 2004]

30 Punishments

(1) Any person found guilty of a contravention of section (…) 27(2) or (3), or 27A may be sentenced to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment [Sub s. (1) substituted by s 15 (a) of Act 18 of 2004] .

(1A) Any person found guilty of a contravention of section 27 (1) may be sentenced to a fine or to imprisonment for a period not exceeding ten years or to both a fine and such imprisonment [Sub s. (1A) inserted by s 15 (b) of Act 18 of 2004] .

30A

1. Any citizen or permanent resident of the Republic who commits any act outside the Republic which would have constituted an offence under this Act had it been committed within the Republic, shall be guilty of the offence which would have been so constituted and liable to the penalty prescribed for such offence in this Act.
   
2. No prosecution under this section shall be instituted without the written consent of a Director of Public Prosecution.
   
   
3. For the purpose of this section, any court in the Republic and any Director of Public Prosecutions shall have jurisdiction [S.30A inserted by s.16 of Act 18 of 2004] .