The NPA in the Western Cape was on Thursday granted leave to appeal a judgment that a man cannot be sentenced because of a flaw in the Sexual Offences Act.

A full bench of judges in the Western Cape High Court unanimously found the National Prosecuting Authority had a reasonable chance of success in another court.

The bench, headed by Judge Andre Blignaut, gave leave to approach the Supreme Court of Appeal (SCA).

The State’s lawyer Francois van Zyl told the bench he had already sent a letter to the SCA’s president Lex Mpati to make him aware of the appeal.

Van Zyl said he may even advise the matter be heard during the court’s recess, between June 1 and August 15.

Western Cape director of public prosecutions, Rodney de Kock, told reporters outside the court they would consider applying for direct access to the Constitutional Court.

“We will of course approach these courts on the basis of urgency... we need to protect the interests of the victims in respect of those cases currently on the court roll, and also in respect of those finalised cases where people are currently serving sentences,” he said.

Earlier this month, the Western Cape High Court upheld a decision by the Riversdale Magistrate’s Court that a man who forcibly fondled a woman in 2009 could not be sentenced because the behaviour had no penalty under the act.

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

If the judgment is upheld, it would particularly affect sexual criminal cases in the province, as magistrate’s courts were bound by high court decisions.

Other offences without a penalty include sexual assault, consensual sexual acts with children, sexual exploitation and grooming of children, and sexual offences against mentally disabled people.

De Kock said provincial cases involving these offences would be postponed pending a decision by the SCA.

Justice Minister Jeff Radebe had indicated that the government would also appeal the ruling. Parliament’s justice portfolio committee was busy drafting amendments to the act.

The Women’s Legal Centre welcomed the court’s decision on Thursday.

“It’s a very positive step towards mitigating the possible implications of the high court judgment,” attorney Sanja Bornman said.

“The appeal... and the amendment bill need to be finalised as soon as possible so we can close any potential gaps that a sexual offender might have.”

Comments

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Wed May 22 16:26:05 SAST 2013 ::

May 24, 2012

Babedollz

WTF, really now.
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May 24, 2012

ApelMankotsana

The Magistrate in the court a quo surely complied with the prescripts of the Sexual Offences Act which it its current form do not prescribe any sentencing for offenders of sexual assault.The magistrate could not on his own come up with a sentence....hence the intrevention of the SCA and the ConCourt.....The State Law Advisers who drafte the Act committed a material ommission of the sentencing part of it.......Hoping that the SCA or ConCourt will rule in favour of the NPA.
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May 24, 2012

MsKinkyakaKamaSutra

Other offences without a penalty include se.xual assault, consensual se.xual acts with children, se.xual exploitation and grooming of children, and se.xual offences against mentally disabled people.
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does this only affect Western Cape or South Africa as a whole???

We are really fukced up, the judiciary and law makers must really get their act together, we cant have scumbags go scottfr.ee due to loopholes........... Lord have mercy on our poor kids......
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May 24, 2012

RobinH

Ms Kinky. Those laws apply to the whole country.

Let's hope above hope that the NPA wins this appeal, as I think it is very important that a precedent be placed in the law annals. That would streamline prosecution in the future.
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May 24, 2012

MsKinkyakaKamaSutra

@RobinH

Bad is an understatement......... I see predators being released due to technicalities????
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May 24, 2012

Bebesocs

Fondling and RAPE is the same thing,( touching forcibly of private parts,) the fondlers together with rapists must be hanged or mob justice, we are tired just like those who take a shower after raping must be hanged or mob justice.
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May 25, 2012

Mbhuduma

The Sexual Offences Act, if left in its current form, is going let many victims down. Something realy needs to be done. I am that the court has granted the NPA leave to appeal.
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May 25, 2012

Mbhuduma

I mean to say: 'I am glad that the NPA....'
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May 26, 2012

jnlegal

Firstly we need to understand that the Magistrate's Courts may only strictly adhere to the law and whatever procedures and practices prescribed by statute(law). Therefore, even if we, as the citizens, feel it is unfair to make such a decision, we must understand that the Magistrate's Court could only make a decision based on the prescriptions of the statute which, in this case, did not prescribe any punishment.

Secondly the Statute had replaced the old common law and had merely incorporated all it's provisions word for word without any thought being given to the future circumstances. Therefore in order to change this, an amendment will need to be made. Furthermore, this does not mean that in all sexual assault cases all courts will be unable to sentence an offender. The High Courts of the country are not bound by Statutes and therefore have a discretion to develop the law. Had the matter been heard in a High Court, the decision may have been very different.
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