The video clips would constitute child pornography, which is illegal in terms of the Films and Publications Act.
Police have already launched an investigation. NPA spokesperson Mthuzi Mhaga said: “It is an offence (to have the videos) and the police will arrest them.”
The NPA defended its decision last week to prosecute the three pupils whose school-yard sex activities earlier this month were captured on cellphones by fellow students, who then offered the video clips for sale over the Internet.
The 15-year-old girl and a 14-year-old boy were charged with “consensual sexual penetration with a child” in accordance with the Sexual Offences and Related Matters Act, while a 16-year-old boy was charged with statutory rape. The three will be dealt with under provisions of the Child Justice Act.
The acting director of public prosecutions in Johannesburg, Xolisile Khanyile, on Friday noted that the decision to prosecute the pupils was widely criticised, but she added: “This is not just an ordinary case. It was widely covered.
“Kids normally engage in sexual activities in private. Here it was in the open, on school premises, in front of other kids. And also the kids took cellphone videos and distributed them.
“The NPA could not just sit back and say ‘we have no role to play’.”
The girl first claimed to have been gang-raped by the two boys, but after the police arrested the boys the NPA withdrew the charges. “The police arrested the boys without fully investigating first,” Khanyile said.
After lengthy consultations with the two boys, the girl and other witnesses, it became clear that “it is not a gang-rape case. We decided to proceed because of the seriousness of the case”.
Khanyile lambasted media reports which published details regarding the in-camera court proceedings, such as that the girl had conceded that the sex was consensual. “The mere fact that the proceedings are in camera means that they are held in secret. We will neither confirm nor deny reports that the girl acknowledged guilt,” she said.
Khanyile did say, though, the girl was “not comfortable and relaxed enough to be in the presence of the two boys” and therefore their cases would be heard separately at their next court appearance on December 1.
Senior public prosecutor Nthabiseng Mokoena told City Press that the charges against the three had not yet been dropped.
In a submission to the court, prosecutors requested that the magistrate hold an inquiry and that the case should then be “diverted” from the criminal justice system.
According to the Child Justice Act, “diversion” means that the children will not face trial, nor will they have criminal records if convicted. Instead, they will undergo an intervention programme best suited to them.
“People think kids go through a full-blown trial. There are numerous alternatives such as admission of guilt, plea bargains and diversion.
“If you do not complete the programme to our satisfaction, then the court proceedings will continue,” Mokoena said.
Khanyile said the NPA wanted to send a message to under-aged children: “What you are doing is unlawful. Engaging in sexual intercourse and making, distributing and selling such videos is against the law,” she said.
The controversial website, Outoilet, where the Jules High videos were advertised, has removed all “school chat rooms” from the site. The site is registered in Russia. The Film and Publications Board on Friday said it would investigate the site after receiving a complaint.