Does the law provide for punishment in sexual offence cases?

July 1st, 2012
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Director of Public Prosecutions, Western Cape v Prins (WCC) (unreported case no A134/08, 11-5-2012) (Blignault J) *

By Rodger Mareume

On 11 May 2012 the full Bench of the Western Cape High Court delivered judgment in the case of Director of Public Prosecutions, Western Cape v Prins. This was an appeal emanating from the regional court in Riversdale, which found that the provisions of s 5(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Sexual Offences Act) did not disclose an offence. This was after the respondent, who was charged with contravening the provisions of s 5(1) of the Sexual Offences Act by touching the breasts and private parts of the complainant without her consent, had objected to the charge in terms of s 85 of the Criminal Procedure Act 51 of 1977 (CPA).

In the light of this case, the following will be considered:

  • What is meant by ‘the charge does not disclose an offence’?
  • Sentencing in terms of the CPA.

I submit that, although the court adequately addressed the principle of legality, had it looked at the available jurisprudence in South Africa, it could have found solutions to the issues raised. Therefore, it is my opinion that South African law provides for punishment for all offences, including sexual offences.

What is meant by ‘the charge does not disclose an offence’?

In South Africa the phrase ‘the charge does not disclose an offence’ is derived from s 85(1)(c) of the CPA, which provides:

‘85(1) An accused person may, before pleading to the charge under section 106, object to the charge on the ground –

(c) that the charge does not disclose an offence.’

As the phrase is not defined, the following definitions may assist in determining its meaning.

According to the online Your Dictionary, the legal definition of a charge is: ‘The formal allegation, contained in an indictment, information, or presentment, that a person committed a specific crime’ (http://law.yourdictionary.com, accessed 31-5-2012).

Section 1 of the CPA defines ‘charge’ as ‘includes an indictment and a summons’.

In order to expand this definition, the authors of Du Toit: Commentary on the Criminal Procedure Act state:

‘In a charge the relevant offence is set out in such a manner and with such particulars as to the time and place at which such offence is said to have been committed and the person, if any against whom, and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the crime (s 84). In the superior court the charge will be laid in an indictment (s 144) and in the inferior courts in a summons or charge sheet’ (FJ de Jager, E du Toit, A Paizes, A St Q Skeen, SE van der Merwe (general ed) Du Toit: Commentary on the Criminal Procedure Act (Cape Town: Juta 2011) at 3).

As mentioned above, the accused in the Prins case was charged with contravening the provisions of s 5(1) of the Sexual Offences Act. Section 5(1) states:

‘Sexual assault

5(1) A person (“A”) who unlawfully and intentionally sexually violates a complainant (“B”), without the consent of B, is guilty of the offence of sexual assault.’

The term ‘offence’ is defined in s 1 of the CPA as ‘an act or omission punishable by law’.

Although it does not appear ex facie or by implication in the Prins judgment that the charge was an issue, it is worth noting that the courts have in the past focused on the charge in determining whether the charge discloses an offence (see Rex v Herschel 1920 AD 575, Rex v Jones and More 1926 AD 350, S v Nathaniel and Others 1987 (2) SA 225 (SWA), S v Ntai (FB) (unreported case no 227/2010, 12-1-2012) (Van der Merwe J), as well as R v Whitehouse [1977] QB 868).

In addition, the High Court of Fiji in Sarun Chand v State (case no HAA 003/2009) held at paras 8 and 9: ‘I am of the view that the representation made to the complainant is not a representation of past or existing fact but a future promise, which in law is not an offence. The facts admitted by the appellant did not disclose any false pretence but purely an agreement to work for the complainant in future.

The charge of false pretence is defective in substance because it does not disclose an offence known to law’ (www.judiciary.gov.fj, accessed 30-5-2012).

It appears from the reading of the Prins judgment and the court’s application of the well-established principle of nulla poena sine lege (no punishment without a law) that the phrase ‘the charge does not disclose an offence’ may mean that the charge does not disclose a sentence. As to whether this is the appropriate interpretation of the provisions of s 85(1)(c) of the CPA remains moot.

Sentencing in terms of the CPA

The CPA is the enabling legislation dealing with criminal proceedings. Section 276(1) of the Act provides:

‘Subject to the provisions of this Act and any other law and of the common law, the following sentences may be passed upon a person convicted of an offence, namely –

(a) …

(b) imprisonment, including imprisonment for life or imprisonment for an indefinite period as referred to in section 286B(1);

(c) periodical imprisonment;

(d) declaration as an habitual criminal;

(e) committal to any institution established by law;

(f) a fine;

(g) …

(h) correctional supervision;

(i) imprisonment from which such a person may be placed under correctional supervision in the discretion of the Commissioner [of Correctional Services].’

Nowhere in the Prins case are the above provisions referred to. At para 12 the court stated as follows:

‘A remarkable feature of the 29 sexual offences described in chapters 2, 3 and 4 of the Sexual Offences Act is that not one of them contains any penalty clause. … Only the offence of rape, described in section 3 of the Sexual Offences Act, can be distinguished from other offences as penalties for it [are] dealt with in section 51(2) of the Criminal Law Amendment Act 105 of 1997.’

It is my submission that a reference by the court to the provisions of s 51(2) of the Criminal Law Amendment Act implies that in determining sentences in sexual offence cases, the Sexual Offences Act is not the only piece of legislation to be resorted to. The failure by the court to refer to the provisions of s 51(1) of the Criminal Law Amendment Act is irrelevant to this discussion.

Section 92(1)(a) and (b) of the Magistrates’ Courts Act 32 of 1944 also could have been considered. It reads as follows:

‘Save as otherwise in this Act or in any other law specially provided, the court, whenever it may punish a person of an offence –

(a) by imprisonment, may impose a sentence of imprisonment for a period not exceeding three years, where the court is not the court of a regional division, or not exceeding 15 years, where the court is the court of a regional division;

(b) by fine, may impose a fine not exceeding the amount determined by the [Justice] Minister from time to time by notice in the Gazette for the respective courts referred to in paragraph (a).’

Conclusion

I submit that the court’s decision in the Prins case is unfortunate as it amounts to a narrow interpretation and application of South African law. The court did not explore all relevant legislation before seeking solace in international law. If it had, it could have found the provisions of s 276 of the CPA to hold the solution to the matter. These provisions are applicable to any person convicted of an offence, irrespective of whether the statute creating that offence has penal provisions or not; otherwise a category of offences relevant to its application could have been tabled.

A further scenario emanating from this judgment is whether the indictment or charge sheet in all statutory offences should be read with the provisions of s 276 of the CPA. If so, I submit that this logic is undesirable as criminal proceedings are governed by the whole of the CPA and failure to read the charge with the provisions of the CPA does not render the charge defective.

I further submit that, due to the fact that the courts also make law in the form of precedent, the amendment of the Sexual Offences Act to include penalties for offences in chapters 2, 3 and 4 may be unnecessary. This is due to the fact that it does not appear from the Sexual Offences Act that particular minimum sentences should be meted out to accused persons. Therefore, the courts enjoy a wide discretion in determining appropriate sentences.

 

On 15 June the Supreme Court of Appeal upheld the appeal in this matter. In overturning the magistrate’s court and High Court decisions, the court came to the conclusion that: ‘The appeal succeeds and the order of the magistrate is altered to one dismissing the objection to the charge.’

In coming to its decision, the court held that s 276 of the CPA 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 imposition of sentence’.

In addition, following the High Court decision in this matter, parliament passed an amending Bill expressly providing that the sentencing powers of courts in respect of the offences in chapters 2, 3 and 4 of the Sexual Offences Act are those specified in s 276 of the CPA. At the time of De Rebus going to print, the Bill was awaiting assent by the President. – Editor.

*Since the offence is alleged to have been committed on 19 September 2009, a reference to 2008 in the case number may be a negligible error.

Rodger Mareume BJuris LLB (NWU) is a senior state advocate at the National Prosecuting Authority in Johannesburg.

This article was first published in De Rebus in 2012 (July) DR 40.