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Children under the age of 12, cannot be criminally prosecuted, but older persons can.
It can also be argued by the hands of Act 32 of 2007 that children under the age of 12, engaging in sexual activities with themselves (for example masturbation), is illegal as the act defines sex as any activity where sexual arousal or stimulation is induced, that includes (as per the act), by oneself.
In South Africa it is illegal to watch or participate in any form of pornography (‘porn’) if you are under the age of 18.
It is also illegal to watch pornography where the participant is under the age of 18, whether you are an adult or not.
An example would be where two people engage in sex with each other, in front of third person (friend, child etc) in the same room – without the onlooker’s consent.
This falls under the category of ‘sexual assault’ in the Act, and is criminally prosecutable.
The latter is usually the more difficult one to proof, as many children do show some mental level of ‘adulthood’ as early as age 15, and are generally perceived more responsible than younger kids.The sex act must also be consensual between both parties.Persons also need to be weary of the age of becoming an adult (age 18 in South Africa), where the parents of a child still has authority about what he or she may consent to whilst under age 18.Judge Pierre Rabie ruled that two sections of the Sexual Offences Act, which criminalises consensual sexual activity between children age 12 and 16, invalid and deemed them to be inconsistent with the South African constitution.So for the moment, as long as Parliament does not rectify Act 32 of 2007, children between the same ages of 12 and 16 may have consensual sex with each other without prosecution.
It is illegal to have sex with a child under the age of 12, and for a child under the age of 12 to have sex with any person (regardless of age), even if the sex is consensual between the two persons.