Acting Speaker of the National Assembly v Teddy Bear Clinic for Abused Children and Another

In Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development (2013), the Constitutional Court declared sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 unconstitutional to the extent that they imposed criminal liability on children under 16 for consensual sexual conduct. The declaration of invalidity was suspended for 18 months to allow Parliament to cure the defect, coupled with a moratorium on investigations, arrests and prosecutions under those sections. As the suspension period was nearing expiry on 2 April 2015 and Parliament had not yet finalised corrective legislation, the Acting Speaker of the National Assembly brought an urgent application for direct access to the Constitutional Court seeking an extension of the suspension period until 5 August 2015. The application was motivated by delays arising from extensive public participation, the decision to address related constitutional defects identified in J v NDPP in a single Bill, and the need to comply with Parliament’s constitutional obligations to facilitate public involvement. The respondents, child-rights organisations, did not oppose the extension but indicated they would oppose any further extensions beyond the requested date.

The period of suspension of the declaration of invalidity ordered on 31 March 2015 was extended until 5 August 2015. Costs were awarded in favour of the respondents.

This case is significant for clarifying the principles governing extensions of suspended declarations of constitutional invalidity under section 172(1) of the Constitution. It underscores the Constitutional Court’s insistence on finality, timely compliance by Parliament, and respect for the separation of powers, while recognising the practical realities of complex, participatory legislative processes. The judgment also reinforces the Court’s supervisory role over constitutional remedies without encroaching on Parliament’s legislative domain.