Clarity on punishment for sexual offences

August 1st, 2012
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By Nomfundo Manyathi

On 15 June the Supreme Court of Appeal (SCA) upheld an appeal of the decision of the Western Cape High Court in Director of Public Prosecutions, Western Cape v Prins [2012] 3 All SA 138 (WCC). In doing so, the court held that criminal charges could be successfully pursued for sexual offences under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act).

This was after both the Riversdale Magistrate’s Court and the High Court held that the accused, Prins (who was charged with sexual assault for fondling a woman in 2009), could not be convicted because the absence of certain penalty clauses in the Act meant that the charge in terms of s 5(1) of the Act failed to disclose an offence.

The effect of this judgment was that persons charged with any of the offences in chapters 2, 3 and 4 of the Act could raise an objection in terms of s 85 of the Criminal Procedure Act 51 of 1977 (CPA)and have the charge quashed.

The SCA ruled that the High Court’s conclusion was incorrect and that the absence of penalty clauses in the Act did not mean that no offences existed.

In the SCA judgment, Wallis JA (Mpati P, Navsa, Brand and Malan JJA concurring) relied on s 276(1) of the CPA and held the following at para 38:

In my opinion [s 276(1)] is a general empowering provision authorising courts to impose sentences in all cases, whether at common law or under statute, where no other provision governs the composition of sentence. I reject the argument that the Act, in creating the offences set out in chapters 2, 3 and 4 thereof, infringed the principle of legality by not prescribing the penalties to be imposed for those offences. I also reject the contention, unsupported by authority, that a statutory offence can only be created by parliament if it includes a penalty in the enacting legislation. That may be a requirement in countries where the criminal law is codified. But that is not the question in South Africa.’

In a statement at a recent Justice, Crime Prevention and Security cluster media briefing, Justice Minister Jeff Radebe said that he was ‘grateful’ that the SCA had acted ‘swiftly in enrolling this matter to avert what could have led to thousands of alleged rapists escaping scot-free’. He said: ‘We will soon engage with the judiciary, the prosecution and the legal profession and other stakeholders to increase the capacity of the regional courts to hear these cases as quickly and practically as possible. Processes are under way to establish the number of sexual offences cases that have been put on hold in order to identify additional capacity that may be required.’

In addition, an amending Act, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 6 of 2012, was assented to by President Jacob Zuma on 23 June. This Act, which was fast-tracked through the parliamentary process, expressly provides for the imposition of penalties for specific offences under the Act being in the discretion of the courts.

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2012 (Aug) DR 8.