The Supreme Court of Appeal will hear an urgent appeal filed by the National Prosecuting Authority in the Western Cape about an apparent flaw in the Sexual Offences Act.
SCA Judge President Lex Mpati granted the NPA leave to appeal a judgment that a man cannot be sentenced because of a flaw in the Sexual Offences and Related Matters Amendment Act.
The SCA held that argument would be heard on June 13.
Earlier, 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.
Prior to his trial, Prins objected to the charge sheet because the behaviour had no penalty under the act. The regional court quashed the charges. This action was upheld by a full Bench of the high court.
Courts in KwaZulu-Natal and the Free State have taken a different interpretation of the act's silence, and the dilemma therefore exists only in the Western Cape.
The Sexual Offences Act was amended by Parliament on Tuesday, as an urgent interim measure, to give courts the discretion to impose sentences for the 29 offences for which penalties are not prescribed.
These offences include sexual assault, consensual sexual acts with children, sexual exploitation and grooming of children, and sexual offences against mentally disabled people.
“It states the clear intention to create a crime and if the penalty is not prescribed, it is left to the discretion of the court,” said state law adviser Henk du Preez.
Justice department legislative drafting chief director Lawrence Basset told MPs the “stop-gap” bill was crucial to prevent sex offenders going free in the Western Cape in the wake of the judgment last month.
He said the department would push ahead with the SCA challenge because, if it were to stand, it would raise the spectre of rendering null earlier convictions for those crimes.
“The (amendment) will not be retroactive, so this is why the SCA needs to give us guidance in this instance,” said Basset, adding that everybody was ad idem that a stop-gap was needed.
He said regardless of the outcome of the appeal, the justice department intended to prescribe maximum sentences for the crimes, but needed a year to do so in another amendment.
“Already in the department we have started working on that,” he said.
MPs have objected to the time frame. The ANC's Buoang Mashile complained that “we've had a lot of bad legislation from this department”.
Instead, the select committee on security and constitutional development gave the department six months to return with a new amendment bill.
The current amendment has yet to be adopted by the National Council of Provinces. - Sapa