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The government is to appeal urgently against a controversial Cape Town High Court finding that 29 sexual offences are not punishable by law because the Sexual Offences Act does not specify penalties for them.
Justice Minister Jeff Radebe says he is aware of two other judgments, one in the Free State and the other in KwaZulu-Natal, in which a different conclusion has been reached.
“They said in cases where the law does not prescribe a penalty or sanction, it is up to the judicial officer to use their discretion,” Radebe told journalists at Parliament before his budget vote on Thursday. “We have two divergent views – the higher courts have to bring clarity.”
At the same time, Parliament’s portfolio committee on justice is discussing – also as a matter of urgency – whether amendments to the Sexual Offences Act are necessary.
Last Friday, the high court upheld a decision by a Riversdale magistrate that a man charged with “touching the breasts and private parts” of a complainant without her consent could not be prosecuted as the act listed no penalty for such behaviour.
The high court also found that there was no recourse to common law, as the Sexual Offences Act replaced it.
The judgment was interpreted as having major implications for people who had been convicted of such offences and as making it impossible to secure convictions.
Civil society organisations working in the arena of women’s legal rights have condemned the judgment and called for it to be suspended. “We believe the court erred,” said Sanja Bornman, Women’s Legal Centre attorney and spokeswoman for the Shukumisa campaign.
That the act did not contain specific penalty clauses was not fatal to individual offences.
It was clear that Parliament would never have intended that a court would not be able to hand down a sentence for the offences.
“In fact, the high court in KwaZulu-Natal came to the opposite conclusion” to that of the Cape Town High Court, Bornman said.
The Sexual Offences Act was a leading example, globally, of legal protection for victims of sexual violence and crimes that included sexual assault, compelling children to witness sexual acts, exposing children to pornography, sexual grooming of children, and certain sexual offences against mentally disabled people.
With gender-based violence and the abuse of women and children rife in SA, to prevent application of the act was to leave victims without the protection of the law at the time that they needed it most and would lead to people’s constitutional rights being violated, Bornman said.
Radebe announced that a special team would be convened to investigate urgently the re-establishing of dedicated courts to deal with sexual offences. It would report back by the end of August.
“The task team will submit its report and recommendations by the end of August this year… on how to tackle these horrendous crimes.”