Parliamentarians have approved an amendment to the Sexual Offences Act as a measure to prevent certain crimes becoming impossible to prosecute.
The amendment, which was passed by the National Assembly last week, explicitly states that courts have the discretion to impose sentences for some 29 offences for which none are prescribed in the 2007 Act.
“It states the clear intention to create a crime and if the penalty is not prescribed, it is left to the discretion of the court,” said state law advisor Henk du Preez.
This ommision in the Act was exposed by the Western Cape High Court in May. It upheld a judgment by the Riversdale Regional Court dismissing sexual assault charges against Arnold Prins on the grounds that lawmakers had failed to specify penalties for those offences.
Courts in KwaZulu-Natal and the Free State have taken a different interpretation of the Act’s silence and the dilemma therefore exists only in the Western Cape.
Lawrence Basset, the chief director for legislative drafting at the department of justice, told MPs the “stop-gap” Bill was crucial to prevent sex offenders going free in the province in the wake of last month’s judgment. But he said the department would push ahead with a Supreme Court of Appeal challenge to the judgment because, if it were to stand, it would also raise the spectre of rendering null earlier convictions for those crimes.
“The [amendment] will not be retroactive, so this is why the SCA needs to give us guidance in this instance.”
The appeal is set to be heard on June 12 and 13.
He added: “Everybody is ad idem that we need to have a stop-gap.”
Basset said regardless of the outcome of the appeal, the department of justice intended to prescribe maximum sentences for the crimes in question but needed a year to do so in another amendment.
“Already in the department, we have started working on that,” he said.
But MPs objected to this time frame, with the ANC’s Buoang Mashile complaining that “we’ve had a lot of bad legislation from this department”.
Instead the select committee on security and constitutional development gave the department six months to return with a new amendment Bill. The current amendment now has to be adopted by the National Council of Provinces. – Sapa