[40]The Supreme Court of Appeal ordered, in effect, that it would be just and equitable for the age limit to be set at 16 years for all victims of section 14(1)(b) and 14(3)(b) offences. It was contended on behalf of the first and second respondents that the victim age limit in respect of these offences should be increased to 18 years. This was the only contested issue in this Court.
[41]The contention had two legs. The first was that the Constitution and all international instruments had set 18 years as the upper limit for the ages of children. Secondly, it was submitted that there was an incongruity between this legislation and other national legislation prohibiting related activity. For example, as indicated earlier, section 27(1) of the Films and Publications Act[1] prohibits the production of pornographic images of a child under the age of 18 years. It was urged that the remedy would be just and equitable because setting a uniform age limit at 18 years would render the legislation consistent with all these other instruments.
[42]I do not think however that the suggested route should be followed because it would bring with it serious inconsistencies. Indeed, two unacceptable consequences would inevitably follow. The one is that the victim age limit for offences relating to heterosexual intercourse[2] will remain at 16 years while that for victims of the offences with which we are here concerned will be 18 years. The other is that the legislation that has repealed and replaced the provisions at issue in this case has set the victim age limit at 16 years for offences comparable to those created by section
