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Hundreds of sexual offences cases, on hold pending the outcome of a crucial appeal decision, will now go ahead, following yesterday’s judgment that ruled courts may validly charge and sentence such offenders.
In addition conviction and sentence in well over 12 000 finalised sexual offences cases will stand. There had been concern that these cases could be invalid if the appeal court agreed that there was a loophole in the law.
Confusion and concern spread through the provincial prosecuting authorities as well as lobbyists for women’s legal rights and child rights after a controversial decision by the Western Cape High Court last month. Judge Andre Blignault, with the agreement of Judge Chantel Fortuin and acting judge Pearl Mantame, had found that the case against Riversdale man, Arnold Prins, could not go ahead.
Prins had been charged with sexual assault in terms of the 2007 Sexual Offences Act, and the high court ruled that the offence with which he was charged, like most offences in the Act, did not contain specific penalty clauses. Such charges and resulting convictions were invalid, said the high court.
A challenge was heard in the Supreme Court of Appeal on Wednesday with five judges sitting during recess. Less than 48 hours later they delivered their decision overturning the high court judgment.
Judge Malcolm Wallis found that a crucial section of the Criminal Procedure Act empowered courts to impose sentence in common law as well as in statutory law where there was no other provision.
Judge Wallis said the Sexual Offences Act clearly both created crimes and contemplated that offenders be punished; this was “expressly stated” in the Act. He held that Section 276 of the Criminal Procedure Act was the mechanism through which a court could convict and sentence in such cases.
Ann Skelton, director of the Centre for Child Law, said: “The whole system had ground to a standstill … because of the uncertainty in the law. Now all prosecutions can proceed.”
Justice Minister Jeff Radebe welcomed the ruling.
“The judgment dispels doubts cast on Parliament in passing the Sexual Offences Act without any penalties, and also confirms the convictions of all person who have committed crimes since the implementation of the act,” Radebe said.
The judgment highlighted the plight of those, especially women and children, who were often victims of sexual crimes.
Police would continue to investigate all cases reported and they would be taken to trial in the normal way, said Radebe.
The National Prosecuting Authority also hailed the ruling. It said the judgment confirmed its belief that courts had an inherent discretion to impose an appropriate sentence in cases where no penalty provision was provided by legislation. “The NPA will continue its aggressive approach in prosecuting sexual abuse cases,” it added. – Sapa