Expressing anger on social media is merely performative outrage and does not result in action to prevent such abuse
South Africa is facing a crisis of silence: the silence surrounding sexual offences is deafening. Is this silence self-imposed, or created by law? In the shadows of silence sexual offenders thrive, leaving devastating scars on survivors and their families. This culture of impunity is enabled by society which chooses to ignore these heinous crimes, despite many being aware of or suspecting them.
The case of Minenhle, a 16-year-old who last year caused widespread public outrage after posting a video celebrating her four-year anniversary with her 40-year-old boyfriend, a man of the cloth who had bought her an iPhone, serves as a stark illustration of societal failure. The outrage on platforms such as X was swift, with users and even political figures condemning the pastor and calling for his arrest. Despite the public uproar, no substantial action was followed by the “keyboard warriors”, and many justified their inaction by pointing to the mother’s failure to act or the perceived helplessness of the public. This defence, as explained below, is legally and morally untenable.
Section 54 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act) explicitly imposes a duty on any person with knowledge, reasonable belief, or even suspicion of a sexual offence against a vulnerable person to report it immediately to the police. Failure to do so constitutes a criminal offence punishable by up to five years’ imprisonment. Moreover, section 28 of the Constitution enshrines children’s rights as paramount, obligating society to act in the best interests of the child, irrespective of parental endorsement or inaction.
The writers argue that public outcry over sexual offences often amounts to performative outrage, sparking doubts about the public’s commitment to proactive and meaningful change in addressing the sexual offences scourge. Performative outrage involves expressing moral indignation on public platforms without taking meaningful or substantive steps to address the issue. It manifests as inflammatory posts on X, hashtag activism and demands for others to act, while neglecting personal legal and social responsibilities. Such outrage not only fails to protect victims but also creates a false sense of action. While public condemnation raises awareness, it does not fulfil the imposed legal obligations or contributes to justice or the prevention of further offences. Amid concerns that public responses amount to virtue signaling, it is crucial to examine the legislative framework governing the reporting of sexual offences against vulnerable persons.
Vulnerable persons, in section 40 of the Act, includes children under the age of 18; individuals with a mental, physical, sensory or intellectual disability; a female below the age of 25 years who is either in tertiary education or receiving vocational training at any training institute or is living in a building for tertiary students; persons who stay in shelters for victims of crime; and people who are 60 years of age and above living in homes for older people or receiving community-based care and support services. While this article focuses on child victims of sexual offences, the arguments presented can apply, mutatis mutandis, to other section 40 vulnerable persons.
The Act defines a sexual offence as any offence listed in Chapters 2, 3, 4 and section 55. The specific sexual offences include, but are not limited to: rape, compelled rape, sexual assault, engaging sexual services of persons 18 years or older, sexual intimidation, statutory rape, statutory sexual assault, sexual exploitation or grooming of children and individuals with mental disabilities.
Section 55 of the Act makes it an offence to attempt, to conspire with another person, or aid, abet, induce, instruct, command, counsel, or procure another person to commit a sexual offence. If convicted, such a person would face the same sentence as someone found guilty of directly committing the offense. For example, if a mother instructs her underage child to have sex with an older person in exchange for money for rent, she may receive the same sentence as the person who committed the offence. Furthermore, section 56(A)(2) of the Act considers it an aggravating factor during sentencing if the person committed the offence with intent to financial benefit or receive any form of compensation or advantage.
Section 55 of the Act has a profound practical effect. It criminalises all anticipatory conduct to commit sexual offences, as well as the actions of accomplices. By criminalising attempts, conspiracy and incitement, section 55 of the Act makes even unsuccessful attempts to commit a sexual offence to be treated as a crime. Section 54 of the Act creates an obligation to report the commission of sexual offences against vulnerable people. Section 54(1) of the Act states that “a person who has knowledge, reasonable belief or suspicion that a sexual offence has been committed against a vulnerable person must report such knowledge, reasonable belief or suspicion immediately to a police official”. Failure to report is a criminal offence according to section 54(2)(a) of the Act, punishable by a fine and/or up to five years’ imprisonment. However, section 54(2)(b) protects individuals who report suspected sexual offences in good faith, shielding them from civil or criminal liability even if their reasonable belief or suspicion prove incorrect.
The supreme court of appeal (SCA) in Natal Joint Municipal Pension Fund v Endumeni Municipality held that words in statutory interpretation must be read purposively and contextually from the outset. The SCA clarified that when courts rely on the ordinary grammatical meaning of words, it means the statutory language is clear and unambiguous within its context. However, where ambiguity exists and multiple valid interpretations arise, courts must avoid interpretations that produce absurd results or hinder the broader legislative purpose.
Judge J Theron, in her concurring judgment in the constitutional court matter of Independent Institute of Education (Pty) Ltd v KZN Law Society, noted that a broad approach to contextualising statutes is taken by our courts and this considers both internal and external context in statutory interpretation. According to Theron, “a contextual approach requires that legislative provisions are interpreted in light of the text of the legislation as a whole (internal context). Context also includes mischief sought to be addressed by the statute, social and historical background of the statute, and other legislation (external context)”.
The import from Endumeni is that we must interpret the word “person” as referred in section 54 of the Act contextually and purposively. The internal context of the word “person” in section 54 of the Act is that the legislature was aware that the word “person” was wide enough to include anyone who is not related to the victim. This interpretation is supported by section 27 of the Act wherein the legislature defines interested person, and that definition is read to mean “any person” who has a material interest in the well-being of the victim, and this includes spouse, partner, parent, guardian, family member, care giver, curator, counsellor, medical practitioner, health service provider, social worker or teacher of such victim”. Furthermore, the legislature in section 28(3) empowers an “interested persons” to lay a charge of suspected sexual offence with the police. Logically, this implies that at the bare minimum interested persons, as defined in section 27 fall within ambit of section 54 of the Act, and this list is not exhaustive.
It is our view that in inserting a broad definition of vulnerable person in section 40 and broadening the ambit of section 54(1), the legislature sought to address the challenge it had highlighted in the preamble of the Act. In the preamble the legislature noted that sexual offences are detrimental not only to the vulnerable persons, but to the society and economy. Moreover, the prevalence of commission of sexual offences is reflective of deep-seated, systemic dysfunctionality in our society and the legal mechanisms to address this social phenomenon are limited and reactive.
Furthermore, section 39(2) of the Constitution is clear that when interpreting legislation courts must promote the spirit, purport and objects of the Bill of Rights. In Independent Institute of Education, the former chief justice, Mogoeng Mogoeng, writing for the majority of the constitutional court noted that, in statutory interpretation the Constitution plays an overarching or pre-eminent role, and failure to defer to the Constitution is a woeful misrepresentation of the true character of our constitutional democracy.
It is trite that sexual offences violate the victim’s right to human dignity; freedom and security of the person; right to privacy and right to equality which includes the full and equal enjoyment of all rights and freedoms. In addition, sexual offences against children, not only violate the rights listed above but also children’s rights as encapsulated in section 28 of the Constitution. Section 28(2) of the Constitution states that “a child’s best interests are of paramount importance in every matter concerning the child”. On the other hand, the writers recognise that, by imposing a duty on any person to report a crime, this imperative norm might be a possible infringement to a person’s freedom as it requires people to come to the rescue and protection of vulnerable persons. It is the writer’s view that this possible infringement is justified when properly balanced against the rights of the vulnerable person.
The interpretation of “person”, which includes a wide range of people, promotes the Bill of Rights. Such an interpretation appears to be consistent with the legislative intention in another statute, namely the Domestic Violence Act 116 of 1998. Section 2B of the Domestic Violence Act contains a provision similar to section 54 of the Act. Section 2B(1) imposes an obligation on any adult who knows, reasonably suspects, or believes that domestic violence is being committed against a child, a person with a disability, or an older person to report the matter to the police or a social worker. Section 2A(2) mandates that certain functionaries, including medical practitioners, social workers, educators, and caregivers, report any reasonable suspicion or belief that domestic violence has occurred or is occurring. The definition of caregiver in section 1 of the Domestic Violence Act includes any person over 18 years who takes responsibility for meeting the daily needs of or has substantial contact with a child, person with disability, or older person. In our view the word person in section 54 of the Act can be limited to include only adult persons (people above the age of 18). This would mean the definition of persons in section 54 excludes children, and the mentally, intellectually, or sensory disabled. This interpretation is supported by the constitutional court’s decision in Independent Institute of Education which highlighted that one statute can provide external context for interpreting another.
By accepting that the word “person” is broad enough to include, and is not limited to, adult community members such as neighbours, friends, teachers, medical practitioners, social workers, and family members, this interpretation gives the word “person” its ordinary grammatical meaning. Such an interpretation accords with the notion that sexual offences are not just a crime against the victim, but also crimes against the community. Consequently, it is logical that the community has a legal duty to report sexual offences when it has knowledge, reasonable belief or suspicion.
The concepts of knowledge, reasonable belief or suspicion are not foreign in our criminal law jurisprudence. Knowledge does not mean mere information based on a rumour or suspicion. Knowledge in criminal law, as intimated from CR Snyman in his textbook, Criminal Law, means that a person has knowledge of the actual facts and the surrounding circumstances. According to the writers, knowledge in section 54 of the Act requires that a person must have actual veritable knowledge based on facts about the sexual offence. If a child reports to a teacher that he/she had sex with an adult person, the teacher shall be considered to have knowledge that a sexual offence was committed as contemplated by section 54. Failure to report this would mean the teacher is guilty of an offence. Meanwhile, a neighbour who sees a child holding hands intimately with an adult person, buying contraceptives, and then going to a private place does not have knowledge of a sexual offence. At best the neighbour has a reasonable suspicion.
The threshold for establishing reasonable belief or suspicion is relatively lower than that for establishing actual knowledge. Reasonable suspicion must be grounded in specific, identifiable, and articulable facts or information, beyond mere hunches or vague assumptions. Whether the suspicion was reasonable, under the prevailing circumstances, is determined objectively. A reasonable person assesses and analyses information, and does not accept it uncritically without verifying it where possible. The test for determining whether an individual has failed to report a sexual offense under section 54 of the Act, and consequently faces potential criminal sanctions, is whether they had a reasonable suspicion that such an offense had been committed. The first leg of the test is whether the suspicion has a factual basis, and the second leg is whether a reasonable person of ordinary intelligence in the position of the person contemplated in section 54 would also have concluded that a sexual offence has been committed against the vulnerable person. Suspicion can arise from various sources, including viewing a video or social media post that suggests the occurrence of a sexual offense. Even if the individual reposted or continued to circulate such content, the key factor is whether they harbored a reasonable suspicion based on the information they encountered. The presence of such reasonable suspicion, grounded in what they saw or shared, triggers the legal obligation to report.
This further broadens the scope of a “person” under section 54 of the Act to encompass individuals who become aware of the commission of a sexual offence through digital platforms, including social media. The duty to report is not confined to direct, in-person observation but extends to those who encounter evidence of such offences online. Accordingly, if a minor, such as Minenhle, publicly shares content on a social media platform indicating involvement in a romantic relationship of a sexual nature, even voluntarily, with an adult, any person who views or engages with such content, is under a statutory obligation to report the matter immediately to the police, as required by section 54(1)(a) of the Act. Such individuals are deemed to have a reasonable belief or suspicion to suspect the commission of a sexual offence, irrespective of the minor’s apparent willingness. Failure to report in these circumstances may result in criminal liability in terms of section 54(1)(b) of the Act.
What emerges is that in South Africa adults have taken a vow of silence that would have stunned even Mahatma Gandhi. This pervasive culture of silence is characterised by a disturbing “angiy’ngeni, nake zakho (it’s not my business)” mentality. This stance not only betrays the spirit of the law but also undermines the constitutional value of ubuntu, which emphasises our shared humanity and collective responsibility towards one another. The law is clear: every adult has a mandatory obligation to report sexual offences, and failure to do so is a crime. By opting not to report sexual offences against children, and other vulnerable persons, adults are accomplices in commission of sexual offences against children. Public hand-wringing on social media and in mainstream media marred by silence in reality only serves to protect sexual offenders. This chasm between public rhetoric and private action fosters a fertile environment where sexual offences flourish.
Sello Ivan Phahle is a lawyer and legal scholar. Thabo Mhlanga is an independent legal analyst.
