The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another

The applicants, two child‑rights organisations, challenged provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 that criminalised consensual sexual conduct between adolescents aged 12 to 15 years, and in certain instances between adolescents and older minors. Sections 15 and 16 created offences of statutory rape and statutory sexual assault even where both participants were children, requiring that both be prosecuted. The challenge arose after the North Gauteng High Court declared these provisions unconstitutional and referred the order to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution.

The declaration of constitutional invalidity of sections 15 and 16 (and related provisions) was confirmed. The order of invalidity was suspended for 18 months to allow Parliament to amend the legislation, with interim relief provided to prevent prosecution of consensual sexual conduct between adolescents during the suspension period.

This case is a landmark in South African children’s rights jurisprudence. It affirmed that the criminal law must not be used in a manner that harms children under the guise of protection and reinforced the constitutional principle that the best interests of the child are paramount. The judgment reshaped the legal approach to adolescent sexuality and limited the reach of criminal sanctions in this sensitive area.