Trial can now proceed against a man who allegedly forcibly fondled a woman

The Supreme Court of Appeal (SCA) upheld an appeal by the Western Cape director for public prosecutions (DPP) against a judgment that a man could not be sentenced because of a flaw in the Sexual Offences Act.

The SCA overturned a Western Cape High Court decision which held that criminal charges could not be successfully pursued and prosecuted in respect of sexual offences under the Sexual Offences and Related Matters Amendment Act (SOA).

The High Court's decision followed 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 SOA.

Arnold 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 charge sheet because the behaviour had no penalty.

The regional court quashed the charges and on appeal the lower court's decision was upheld by a full bench of the Western Cape High Court.

The Western Cape DPP appealed to the SCA.

On Friday, the SCA held that the penalty provisions in section 276 of the Criminal Procedure Act (CPA) empowered courts to impose sentences upon people convicted of sexual offences under the SOA.

The court found, in a unanimous decision by a full bench of five judges, the fact that the SOA itself does not contain penalty provisions does not justify the quashing of charges laid under the Act.

The SCA further held that the constitutional principle of legality as summed up in the Latin "maxim nulla poena sine lege" (no penalty without law) was satisfied by reference to the sentencing powers enjoyed by all courts under the CPA.

Reading the SCA judgment's order, Appeal Court Judge Fritz Brand said the regional court and Western Cape High Court were wrong in their decisions.

The judgment, written by Appeal Court Judge Malcolm Wallis, said no South African judicial officer could be unaware of the extent of sexual violence and the way it deprives the country's women and children of their right to dignity and bodily integrity.

Wallis said children had a right to be children and to grow up in innocence and as they grow older to awaken to the maturity and joy of full humanity.

"The rights to dignity and bodily integrity are fundamental to our humanity and should be respected for that reason alone."

Wallis said the current state was a sad reflection on the world and South African society.

Women and children had been abused and continued to be abused, so their rights needed legal protection by way of international conventions and domestic laws.

The SCA judges felt the SOA was a vital tool in the fight against woman and child abuse.

NPA spokesman advocate Mthunzi Mhaga said the prosecuting authority welcomed the judgment. He said the decision would strengthen the NPA's aggressive stance in the prosecution of sexual abuse cases.

The SCA set aside the order of the High Court.

The regional magistrate's order was also altered to one of dismissing Prins' objection to the charge.

The trial against Prins can now continue.