Judgment expected on sexual offences law

The court was hearing an appeal by the director of public Prosecutions (DPP) in the Western Cape against a judgment that a man could not be sentenced because of a flaw in the Sexual Offences Act (SOA).

Legal counsel for the DPP, Bonnie Currie-Gamwu, submitted that the accused, Arnold Prins, was asked to plead in the regional court. He should have known that the possible sentences applicable fell within the jurisdiction of a regional court, she submitted.

In May the Western Cape High Court upheld a decision by the Riversdale Magistrate’s Court that Prins could not be sentenced for forcibly fondling a woman in 2009 because the behaviour had no penalty under the Act.

Prins was charged with sexual assault in terms of the Act, which came into effect at the end of 2007.

Prior to his trial, Prins objected to the charges against him, claiming the behaviour of which he was accused had no penalty under the Act. The regional court quashed the charges. The decision was upheld by a full bench of the Western Cape High Court.

No penalty clauses
The offences with no penalty clauses include sexual assault, consensual sexual acts with children, sexual exploitation and grooming of children and sexual offences against mentally disabled people.

Courts in KwaZulu-Natal and the Free State had made a different interpretation of the Act’s silence, and the dilemma therefore existed only in the Western Cape.

On Wednesday, the Western Cape DPP argued the contested section five of the SOA found its legality with regard to penalties in section 276 of the Criminal Procure Act, read with the Magistrate’s Court Act.

Section 276 of the Criminal Procedure Act codifies sentencing options available to the courts.

The DPP submitted that just as section three of the SOA found its penalties within another Act, the Criminal Law Amendment Act, section five’s penalties were found elsewhere.

Mbuyiseli Madlanga, lawyer for the justice minister, submitted that the answer to the problem the courts were dealing with was section 276 of the CPA. The minister was joined as a party to the matter on Wednesday.

Degree of sentencing
Legal counsel for Prins, Petier Botha, submitted that if Parliament intended to leave the nature and degree of sentencing to the court’s discretion, Parliament would have said so. It had done so in other cases.

Botha submitted that the DPP’s reliance on section 276 of the CPA could not be correct.

The SCA also heard submissions by the Women’s Legal Centre and the Centre for Children’s Law as friends of the court.

Both submitted the SCA should consider the effects of sexual offences on victims, specially women and children. It was submitted the state had a duty to protect women and children against sexual offences.

Judgment was reserved. – Sapa

PW Botha wagged his finger and banned us in 1988 but we stood firm. We built a reputation for fearless journalism, then, and now. Through these last 35 years, the Mail & Guardian has always been on the right side of history.

These days, we are on the trail of the merry band of corporates and politicians robbing South Africa of its own potential.

To help us ensure another 35 future years of fiercely independent journalism, please subscribe.

Advertisting

In East Africa, the locusts are coming back for more

In February the devastating locust swarms were the biggest seen in East Africa for 70 years. Now they’re even bigger

Western Cape Judge Mushtak Parker faces second misconduct complaint

The Cape Bar Council says his conduct is ‘unbecoming the holding of judicial office’

‘My biggest fear was getting the virus and dying in...

South African Wuhan evacuee speaks about his nine-week ordeal

Border walls don’t stop viruses, but a blanket amnesty might

Why South Africa should consider amnesty for undocumented migrants in the time of the coronavirus outbreak.

Press Releases

The online value of executive education in a Covid-19 world

Executive education courses further develop the skills of leaders in the workplace

Sisa Ntshona urges everyone to stay home, and consider travelling later

Sisa Ntshona has urged everyone to limit their movements in line with government’s request

SAB Zenzele’s special AGM postponed until further notice

An arrangement has been announced for shareholders and retailers to receive a 77.5% cash payout

20th Edition of the National Teaching Awards

Teachers are seldom recognised but they are indispensable to the country's education system

Awards affirm the vital work that teachers do

Government is committed to empowering South Africa’s teachers with skills, knowledge and techniques for a changing world

SAB Zenzele special AGM rescheduled to March 25 2020

New voting arrangements are being made to safeguard the health of shareholders

Dimension Data launches Saturday School in PE

The Gauteng Saturday School has produced a number of success stories