Sexual Experimentation & the Youth

Let’s say you catch your 13 year old daughter and her boyfriend (also 13) kissing in her room. 

Did you know that underage kissing, children 12 to 16 years, is a crime in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007? 

According to this act consensual underage sexual activity/ penetration/ petting/ kissing is a crime. Any person who fails to report it could face possible criminal prosecution. Yes, that means that you as a parent or guardian could be charged with a crime should you fail to report your underage daughter’s smooching session. 

Enter the Teddy Bear Clinic Constitutional Court case (2014):

· Children’s rights activists argued that the criminalization of consensual underage sexual activity causes pregnant girls to avoid clinics and hospitals as they and their partners fear criminal charges;

· The Department of Justice on the other hand argued that decriminalization would negatively impact the already escalating rate of sexual violence among young children;

· The Court, however, found in favour of Teddy Bear Clinic and ruled that the criminalization of consensual underage sexual activity infringes a teenager’s right to dignity and privacy;

· The Court gave Parliament more than a year to change the Sexual Offences Act.

Enter the new draft rules which have yet to come into effect:

· Two consenting minors aged 12 to 16 will not face criminal charges following sexual activity;

· It remains a serious crime for an adult to engage in sexual activity with a minor younger than 16, regardless of the minor’s consent;

· A person aged 16 or 17 years will not face criminal charges for consensual sexual activity with an underage minor, provided the age difference is no more than two years.

“Every child has his or her own dignity. If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them.”

- S v M (Centre for Child Law as Amicus Curiae) para 18: 

Yours faithfully, 

Legal Hero

www.legalhero.co.za 

Personal information

Question received: “Hi please tell me, can a store where you buy on account tell other people about your debts, private information and that you dont pay?”

Reply

Your credit information is personal and protected. It is true that credit providers have an obligation to assess your repayment capability before granting credit to avoid reckless lending; however, you have a right to privacy. This is why potential credit providers/ employers ask you to complete and sign a credit check consent form. Without this signed form potential creditors have no right to access your credit record!

Regulation 18 of the National Credit Act specifically governs the confidentiality, maintenance and retention of consumer credit information:

“The prescribed purposes, other than for purposes contemplated in the Act, for which a report may be issued in terms of section 70(2)(g), are:

(a) an investigation into fraud, corruption or theft, provided that the South African Police Service or any other statutory enforcement agency conducts such an investigation;

(b) fraud detection and fraud prevention services;

(c) considering a candidate for employment in a position that requires trust and

honesty and entails the handling of cash or finances;

(d) an assessment of the debtors book of a business for the purposes of:

(i) the sale of the business or debtors book of that business; or

(ii) any other transaction that is dependant upon determining the value of the

business or debtors book of that business;

(e) seting a limit of service provision in respect of any continuous service;

(f) assessing an application for insurance;

(g) verifying educational qualifications and employment;

(h) obtaining consumer information to distribute unclaimed funds, including pension

funds and insurance claims;

(i) tracing of a consumer by a credit provider in respect of a credit agreement entered

into between the consumer and the credit provider;

(j) developing of a credit scoring system by a credit provider or credit bureau;

(5) Should a report be required for a purpose set out in sub­regulation (4)(c) or (e) to (g), the

consent of the consumer must be obtained prior to the report being requested.”


When you fail to pay your monthly instalments as contractually agreed on, this may reflect on your credit record as adverse information (slow paying/ not contactable/ missed payment, etc). Access to this information is however limited, as set out above.

According to section 68(1) of the National Credit Act, “Any person who, in terms of this Act, receives, compiles, retains or reports any confidential information pertaining to a consumer or prospective consumer must protect the confidentiality of that information…”

It would therefore be very unprofessional, unethical and unlawful for a shop to disclose your debts with others and we would suggest you contact Legal Hero immediately should you be a policyholder or lodge a complaint via email: complaints@ncr.org.za.

The Protection of Private Information Act (POPI) was signed by the President in November 2013 but is not yet effective/ operational. This piece of legislation will bring about quite a bit of change and strict guidelines regarding the gathering, securing and appropriate use of personal information. Offenders could face jail time or fines of up to R10 million! So how is ‘personal information’ defined in the act?

‘‘personal information’’ means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person,including, but not limited to—

(a) information relating to the race, gender, sex, pregnancy, marital status,

national, ethnic or social origin, colour, sexual orientation, age, physical or

mental health, well-being, disability, religion, conscience, belief, culture,

language and birth of the person;

(b) information relating to the education or the medical, financial, criminal or

employment history of the person;

(c) any identifying number, symbol, e-mail address, physical address, telephone

number or other particular assignment to the person;

(d) the blood type or any other biometric information of the person;

(e) the personal opinions, views or preferences of the person;

60(f) correspondence sent by the person that is implicitly or explicitly of a private

or confidential nature or further correspondence that would reveal the contents

of the original correspondence;

(g) the views or opinions of another individual about the person; and

(h) the name of the person if it appears with other personal information relating to

the person or if the disclosure of the name itself would reveal information

about the person”

Telling others about the fact that you do not pay your debts timeously could possibly also impact your reputation. Please read our previous blog entries on reputation/ defamation.

Struggling with a legal question of your own? Email freeadvice@legalhero.co.za this week and we will try our utmost best to give you some clarity. It's our way of giving back and saying thank you.

Best wishes,

Legal Hero.

www.legalhero.co.za