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The National Prosecuting Authority, moving to address a shocking omission in the new Sexual Offences Act reported by Weekend Argus last week, has announced a stopgap plan that specialists have warned will leave vulnerable people unprotected.
Until a Supreme Court of Appeal decision on the controversy, the NPA has announced that no new arrests for certain sexual offences will be made, and charges against those affected, who have not yet pleaded, will be withdrawn.
In addition, the NPA announced it would postpone any court cases in the Western Cape pending the outcome of its appeal of last week’s Western Cape High Court judgment.
The ruling in question, by a full bench of the High Court, effectively means that anyone accused of crimes in terms of certain sections of the act cannot be formally charged – because legislators omitted to prescribe sentences for at least 29 offences listed in the act.
The Directorate of Public Prosecutions will urgently appeal the judgment in the Supreme Court of Appeal, Western Cape NPA spokesman Eric Ntabazalila said in a statement on Friday. In addition, they will make a special request for clarity on partly heard and already finalised cases.
In the interim, the following will apply:
l In new cases police have been asked not to make any arrests. Dockets will be opened and referred to senior public prosecutors who will decide whether the charges can be substituted with other common law charges (such as common assault and crimen injuria.) Alternatively, the senior prosecutor will “retain” the docket until the Supreme Court judgment.
l In cases where the accused has not yet pleaded and faces no other serious charges the matter will be withdrawn.
l In partly heard cases prosecutors will apply for postponements of at least two months.
Ntabazalila said the decision would affect only Western Cape matters. Among the 29 sexual offences affected by the judgment are sexual exploitation or grooming of a child, and sexual exploitation or grooming of mentally disabled people.
Western Cape Provincial Police Board chairman Hanif Loonat said he was “dumbstruck” by the decision.
“There was an oversight by the lawmakers, but in the interim our people are not protected.”
He said that the sexual offences affected by the decision were all “common practices in the Western Cape”.
Sanja Bornman, an attorney at the Women’s Legal Centre, said they were happy the NPA was appealing, but were disappointed at the decision to suspend matters and stop making arrests in the interim.
She urged them to use the common law substitutions wherever possible, and to finalise the issue “as a matter of urgency”.
The National Working Group on Sexual Offences has revealed that it pleaded repeatedly with legislators for public hearings on the Sexual Offences Amendment Act – but the chair of the committee steadfastly refused.
“We sent submissions (to the parliamentary portfolio committee on justice and constitutional development) – they were ignored,” said Joan van Niekerk, of Childline SA, suggesting that if they had been heard, the loopholes could have been avoided.
“So what we are dealing with in this act is the failure of politicians to consult with those who are dealing with sexual offences, victims and perpetrators on a daily basis.”
- Weekend Argus