Monday, June 18, 2012

Eversheds Attorney's intervention in the Sexual Offences Act with Women and Men Against Child Abuse in partnership with JCAF

to undisclosed recipients
SCA decision in the matter of DPP, Western Cape and Prins
On 11 May 2012, the High Court in the Western Cape handed down a decision in relation to the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 (the Act). In terms of this judgment the court found that over 26 offences contained in the Act could not be prosecuted upon as they did not constitute an offence as they did not contain penalty provisions.
The affected provisions in question are contained in Chapters 2, 3 and 4 of the Act and include:
·         Rape
·         Sexual assault
·         Compelling or causing persons 18 years or older to witness sexual acts
·         Incest
·         Bestiality
·         Sexual act with corpse
·         Acts of consensual sexual penetration with certain children (statutory rape)
·         Acts of consensual sexual violation with certain children (statutory sexual assault)
·         Sexual exploitation of children
·         Using children for or benefiting from child pornography
The effect of this judgment was that various persons charged with any of those offences could raise an objection in terms of section 85 of the Criminal Procedure Act (CPA) and have the charge quashed.
After this judgment was handed down, Eversheds was approached by the non-profit organisation Women and Men against Child Abuse, which requested we assist them in ensuring that the matter was brought before a higher court. We liaised with the National Prosecuting Authority that confirmed they would launch an appeal. We further liaised with the Minister of Justice and Constitutional Development and confirmed that they would seek to intervene.
Eversheds subsequently provided submissions to the Minister and the NPA regarding the following key issues, which had either been disregarded in the High Court judgment or misconstrued:
·         The applicability of section 51(2) of the Criminal Law Amendment Act, Act 105 of 1997.
·         Section 276(3) of the CPA.
·         The principle of legality and the doctrine of nulla poena sine lege within the context of Constitutional Court and SCA decisions.
·         The case law pertaining to a Judge's discretion.
·         Sections 29 and 35(3)(n) and (l) of the Constitution.
·         The three doctrines of interpretation of statutes that the legislature does not intend absurd results, that the legislation must be in accordance with public interest and that the legislature acts reasonably.
·         The application of the cassus omissus rule to the proceedings.
Due to the severity of the issues raised, the appeal was heard as a matter of urgency. It was heard by the SCA on Wednesday 13, June 2012 and the judgment reserved until Friday, 15 June 2012.
The judgment handed down by Wallis JA with Mpati, Navsa, Brand and Malan concurring found that the appeal by the DPP must be upheld and that the order altered to one dismissing the objection to the charge.
While the SCA addressed the societal implications of the High Court judgment and the effect that it would have on women and children who were subjected to violence, the court also considered the legal argument raised regarding whether the absence of a penalty provision can lead to it being found that no offence exists.
The SCA found that the language of the sections unequivocal in that the legislation intended each section to create a criminal offence and further that the Act unequivocally contemplates that on conviction the courts will impose an appropriate sentence on the accused.
Further the SCA found that in this instance it is not necessary for the charge sheet to specify the penal consequences of a conviction.
The SCA further held that section 276 of the CPA is the source of the power of our courts to impose sentences. The SCA held further that this section is not restricted to common law crimes and can be turned to where the legislation does not provide a punishment.
The SCA found that, while the imposition of a sentence by a court must have its justification in either the common law or statute when an offence is created by statute, the absence of a penalty therein does not render the charge invalid or warrant the quashing of the charge.
For further information contact Michal Johnson on 011 523 6128 or