Justice ministry stands by its opposition to constitutional challenge to Sexual Offences Act
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