Western Cape sex offences appeal upheld

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The Supreme Court of Appeal (SCA) upheld an appeal by the Western Cape director for public prosecutions (DPP) on Friday 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.

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. – Sapa


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