Section 12 of the Children’s Act 38 of 2005 prohibits the circumcision of children aged below 16 years and, in certain circumstances, children between the ages of 16 and 18 years.
The object of the Children’s Act 38 of 2005 is inter alia:
- To give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic such as the African Charter on the Rights and Welfare of the Child (1990) and the UN Convention on the Rights of the Child (1984);
- To ensure that the constitutionally entrenched principle that the best interest of a child is paramount in every matter concerning the child is adhered to; and
- To ensure that children are protected from maltreatment, abuse or degradation.
Children below the age of 16:
Section 12 (8) prohibits circumcision of a male child unless it is:
- Performed for religious purposes, in accordance with the practices of the relevant religion, and in the manner prescribed in Regulation 6 of the General Regulations regarding Children (2010), or
- The procedure is necessary for medical reasons upon the recommendation of a medical practitioner.
Any person guilty of contravening this section will be liable to a term of imprisonment up to 10 years, a fine, or a fine and imprisonment. A repeat offender may be liable to a term of up to 20 years imprisonment a fine, or a fine and imprisonment.
Children above the age of 16:
Circumcision of male children older than 16 may only be performed:
- If the child has given consent to the circumcision in the prescribed manner;
- After proper counselling of the Child and
- In the manner prescribed
In terms of section 12 (9) male child circumcision is allowed provided that the child gives written consent on the form prescribed by regulation 5(a).
However, the child must receive proper counselling. The circumcision must be performed by either a medical practitioner or a person who has been trained to perform circumcisions and who has knowledge of the child’s social and cultural practices. Furthermore, the circumciser must perform the circumcision in accordance with Regulation 5(2) which prescribes certain conditions for a sterile environment and the proper disposal of human tissue.
In instances where death ensues due to negligence, the responsible persons will be charged with culpable homicide. Taking into consideration the child’s age, maturity and stage of development, every male child has a right to refuse circumcision. Those who contravene these sections will be prosecuted.
Note: The National Prosecution Authority (NPA’s) media statements are available on the website:
Nathi Mncube
Cell: 084 814 8364
E-mail: media@npa.gov.za
