By Anton Katz SC
Humans are born, spend some time on earth and then die and leave earth.
I remember thinking in the first days of my firstborn child’s life that each day was the only time he would enjoy that particular day of his life. So after five days I had the odd thought that he had experienced day five of his life and he would never again live on that fifth day. I also recall thinking of the words of one of Nelson Mandela’s prison-mates to the effect that the days they were imprisoned on Robben Island passed sooooo slowly, whereas the years just flew by. I also remember a very old friend responding to my happy birthday wishes by saying, “I now no longer celebrate my birthday — these days I now commiserate my birthday as things become physically tougher in my life.” And we have all heard the expressions, age is just a number, age is only an attitude or love isn’t affected by age. These types of comments are often made when two people of vastly different ages start dating. The question struck me of when and how the law deals with and treats the age of humans.
The supreme law prohibits the State from discrimination on a range of grounds. Section 9(3) of the Constitution states, ‘The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds — including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth’. But is it fair to make laws or rules concerning, for example, when a child may start school; when a citizen may vote, drink alcohol, purchase a cigarette, possess a firearm, drive a car, have sexual relations, start work, join the army, get married, be young enough or old enough to adopt a child, or be forced to retire from work.
In January 2000 the Minister of Education published a notice — a learner may not have been enrolled in grade 1 in an independent school if the child did not reach the age of seven in that calendar year. Talya Harris was part of a group of children who had enroled at the age of three in the (Johannesburg) King David pre-primary school. She had spent three years being prepared for entry to the primary school in the year 2001. Her sixth birthday was in January 2001. Talya was thus not permitted to enrol because she was too young. Her parents challenged the Minister’s notice and sought an order of the High Court permitting Talya to be enrolled in grade one in the year she turned six. The Harris family won. The Court ruled that the child’s best interests were violated, and authorised King David Primary School to admit Talya to Grade 1. The High Court held that the Minister’s actions discriminated unfairly on the grounds of age against Talya and similarly situated children, was not justifiable, and accordingly violated the right to equality guaranteed by section 9 of the Constitution. It held that by requiring Talya and other children in her position to repeat their final year of pre-primary school or to sit at home waiting for the year to pass, the Minister’s actions unjustifiably violated section 28(2) of the Constitution, which provides that a child’s best interests are of paramount importance in every matter concerning the child.
Having qualified as a pilot at his own cost, Mr. Gideon Jansen van Vuuren joined South African Airways as a junior pilot in 1972 at the age of 26. Many years later Mr. Jansen van Vuuren sued SAA because it had forced him to retire at the age of 60, at the rank of senior Captain. The retirement age for pilots had previously been extended from 58 to 60, and was about to change to 63. In a complex case about age discrimination and wages, SAA did not defend the case on the basis that there was no unfair discrimination, because as the court stated there was blatant unfair discrimination. He won his case.
Turning to matters sexual, in terms of the Constitution, and in relation to most provisions of the Childrens Act, a ‘child’ is any person under the age of 18 years. But for the purposes of sections 15 and 16 of the Sexual Offences Act a ‘child’ is defined as ‘a person 12 years or older but under the age of 16 years’. In other words, statutory rape or statutory sexual assault can only be perpetrated against a child between the ages of 12 and 15 years (called adolescents). Statutory rape is committed if (a) an adult or a child who is 16 years or older engages in consensual sexual penetration with an adolescent; or (b) adolescents engage in consensual sexual penetration with each other. In the case of two adolescents, if a prosecution is instituted for a charge of statutory rape, both children involved must be prosecuted. So if two adolescents engage in sexual relations with one another, each will be guilty of having statutorily raped the other. In other words, if a 12-year old and 15-year old engage in kissing or petting or mutual masturbation, both commit a criminal offence. Furthermore, if the 15-year-old is prosecuted, the 12-year-old must be prosecuted too; and neither may claim the close-in-age defence. The Teddy Bear Clinic for Abused Children, a not-for-profit company that provides a wide range of medical and related services to abused children and coordinates programmes to divert young sex offenders from the criminal justice system, approached the Constitutional Court complaining about the harshness of prosecuting children. The Constitutional Court effectively. held that the kissing and petting prohibition for under-16s was unconstitutional.
What all these cases ultimately demonstrate is that unfair discrimination on the basis of age will be unconstitutional and invalid unless backed up by empirical evidence justifying the age differentiation. All age differentiation is discrimination on the basis of age. What must be considered in every case is whether the discrimination is unfair. So, if the government ban those under the age of 21 from drinking alcohol, smoking cigarettes or possessing a firearm, and such a ban is challenged, the state would need to show why it is not unfair to impose the age limitation. Academic studies and evidence explaining why a particular age is selected for the prohibition would go some way to saving the ban. But if the age choice is arbitrary or just a thumb-suck by government it is unlikely to withstand scrutiny by the Courts.
Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.
• Published in the March 2023 Digital Edition – Click here to start reading.
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