Loopholes in law meant to protect women and children
A man who forcibly fondled a woman cannot be sentenced because the behaviour has no penalty under the Sexual Offences Act - but NPA is told it can appeal this
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.”