This article is inspired by the Lwandile Bhengu article dated 17 August 2021, published on News 24 titled: “Gauteng records more than 23 000 teen pregnancies in one year, some as young as 10”

Opinion Piece 20 August 2021

According to the Gauteng Health MEC, “between April 2020 and March 2021, the province of Gauteng recorded 23 226 teenage pregnancies, with 934 girls being between the ages of 10- and 14-years giving birth”.

A 2015 United Nations Population Fund (UNFPA) study found that “the life of a girl who falls pregnant at an early age changes negatively, and is less likely to change for the better, because her health and that of the baby are compromised, her educational and future employment prospects become blurred and her vulnerability to poverty multiplies”.

Bearing this in mind, the statistics are incredibly alarming because under South African law children under the age of 12 years cannot legally consent to sex. A person who engages in sexual activity with a child under 12 years, is committing rape. This means that those pregnant children who are 10 and 11 years old, were raped. This may also be the case for most of those older than twelve, but we do not have enough information to determine this.

The actual legal age to consent to sex in South Africa is 16 years and the legal age to consent is there to protect vulnerable children from being sexually preyed on by adults. Adults (persons 18 years and older) who engage in sexual activity with children younger than 16 years (even with consent) are guilty of statutory rape or statutory sexual assault under section 15 and 16 of the Sexual Offences Act.

There are however two exceptions to this law. The first exception is that you cannot criminally charge children aged between the ages of 12 and 16 years, who engage in consensual sexual acts with each other. The second exception is that you cannot criminally charge children who are 16 or 17 years, for engaging in consensual sexual acts with children who are two years younger than them [E.g. a 16-year-old with a 14-year-old and a 17-year-old with a 15-year-old]. If there is more than a two-year age difference, then the 16 or 17-year-old will be criminally charged with statutory rape or statutory sexual assault under section 15 or 16 of the Sexual Offences Act.  

The two exceptions came as a result of the Constitutional Court case of Teddy Bear Clinic for Abused Children v Minister of Justice & Constitutional Development. The Teddy Bear Clinic case decriminalized consensual sexual behavior between children aged between 12 years and 14 years where the Court stated that “due to their vulnerability and need for guidance… we must be careful not to expose them [children] to harsh circumstances [of the criminal justice system] which can only have adverse effects on their development”.

These statistics are also worrying in that they cover the period of April 2020 to March 2021 where South Africa was in and out of various levels of hard lockdown, and South Africans could not leave their homes unless it was for essential goods, work or school. Even newspaper reports during this time indicated an increase in gender-based violence and violence against children.  Meaning that, there is a high chance that some of these pregnant children are victims of sexual violence from within their homes.

These statistics only show one half of the dilemma of teenage pregnancy, in that they only focus on the young mothers. There is no information on who the fathers are and validly so - the Department of Health captures the data of those who seek medical assistance. However, section 110 of the Children’s Act legally compels “any person”, including medical professionals, to report children who they reasonably believe might be victims of neglect or abuse and those who they believe are in need of care and protection, to the Department of Social Development or the South African Police Service. It is therefore the responsibility of Department of Social Development to take these statistics a step further, by investigating the circumstances of these children and to ascertain that the children under the age of 16 years are not victims of sexual offences and are in turn in need of care and protection.

Furthermore, there is the question whether these pregnancies come from consensual or non-consensual sexual activity. If there is no consent that means a person is guilty of rape. But, a person can also be found guilty of a sexual offence against a child, when there is consent such as statutory rape or statutory sexual assault. So, it is important to ascertain that these children were not victims of a sexual offence. For example, an adult person over the age of 18 years, who engages in consensual sexual activity with a child under the age of 16 years is guilty of committing statutory rape or statutory sexual assault. If an adult person or a child between the ages 12 and 16 years, engages in sexual activity with a child under the age of 12 years – they are guilty of rape.

South Africa has a terrible track record of not prosecuting rape and statutory rape matters. So, it is important that the Department of Social Development provides all the children but particularly those under the age of 12 years, who cannot legally consent to sex, with all the necessary support and counselling they may need because they are victims of rape and may eventually be called to testify in criminal proceedings.

There is also a need to reflect on how we got here.  In 2014, the statistics showed that about 20 000 girls became pregnant in the entire country and now 23 000-plus girls are pregnant in Gauteng alone this is cause for concern. This shows that we are failing to protect our children against sexual violence and also to provide them with information and services that may assist them to make informed choices where they elect to engage in consensual sexual activity. Since 2016 the Department of basic Education has failed to provide the Final Learner Pregnancy Policy that includes measures on Comprehensive Sexuality Education, while on the other hand the Department of Health is failing to make sexual reproductive health services more accessible for adolescents.

Evidence provided to the Court in the Teddy Bear Clinic case showed that: “adolescents who discuss sex and sexual health with their parents openly are less likely to engage in sexual risk behaviour. Parent-child sexual communication that is open and includes specific information and discussion about risk and risk reduction strategies has been shown to have a positive influence on adolescent sexual behaviour”.  Also, that “[c]omprehensive sex education has been found to be more effective than abstinence-only or no sex education in reducing [risky sexual behaviour by young people,] including delays in sexual debut, reductions in [the] number of sexual partners, and reductions in pregnancy and diagnosed STIs among youth.

Abstinence-only education programmes have been found to have no significant impact on adolescents’ values or attitudes toward sexual activity”. It is important for us as a country to curb the trend of teenage pregnancy with education and knowledge. It is now more important than ever to strengthen the comprehensive sexuality education in the home and in schools and teach both girls and boys about consent and what is appropriate and inappropriate behaviour from adults as well as other children.