Western Cape prosecuting authorities knew way back in March 2010 that there were significant flaws in the controversial Sexual Offences Act, a city attorney says.

Roelof Steyn told Weekend Argus on Friday he raised the issue at the beginning of 2010 when he represented a man charged under a section of the act in the Parow Sexual Offences Court.

But the prosecutor simply withdrew the charge, citing authority from the director of public prosecutions.

Two months later, the matter was raised again in the Riversdale Magistrate’s Court by attorney Sakkie Krouwkam, representing sexual assault accused Arnold Prins.

Krouwkam had the charge quashed, and the director of public prosecutions appealed to the Western Cape High Court – resulting in the full-bench judgment earlier this month.

Steyn said the prosecution was reinstated late last year, but on Thursday it was again withdrawn following the High Court’s judgment.

However, Western Cape director of public prosecutions Rodney de Kock has denied the withdrawal of the charges in Steyn’s case had anything to do with the legislation. It was instead because the mother of the complainant refused to proceed with the case.

He said the director of public prosecutions’ position has always been that the legislation is not defective. He said offenders have been convicted and sentenced on the basis of the legislation and this was why they were appealing against the High Court decision. But Steyn remains adamant that the director of public prosecutions has known of the flaws for about two years, saying the act was discussed with one of the deputy directors of public prosecutions.

In the judgment earlier this month, the High Court ruled that the Riversdale Magistrate’s Court was correct in quashing charges against Prins because legislators omitted to prescribe sentences for at least 29 offences listed in the 2007 Sexual Offences Act.

This effectively meant charges against anyone accused of one of the affected offences were invalid because they were not punishable in law.

Since then lawmakers have been scurrying around in a bid to fix the problem through a draft amendment bill. And Western Cape prosecuting authorities are taking the decision on appeal.

It is not yet clear whether it will go to the Supreme Court of Appeal or whether the director of public prosecutions will apply for direct access to the Constitutional Court.

But while the parties wait for the issue to come before a higher court, authorities have had to make interim plans.

According to De Kock, prosecutors are provisionally withdrawing charges in affected cases when presented in court. Awaiting-trial prisoners will be free to go as their cases are provisionally withdrawn.

However, in partly heard cases where evidence has already been led, prosecutors have been requesting two-month postponements, he said.

If an affected accused is in custody, their attorney could apply for bail and each case would be evaluated on its merits, De Kock added.

The director of public prosecutions had stressed the urgency of the appeal, but it was up to the court to decide on a date.

However, while De Kock hopes the matter will be expedited, Prins may have dealt his hopes a serious blow.

He has told Krouwkam that he cannot afford the legal fees.

Krouwkam said on Friday he had asked for legal aid, but a decision had yet to be made.

According to Krouwkam, a change in legal representation would mean further delays. The matter would not be able to proceed soon because it was complex, and a new lawyer would need time to prepare.

Even if he remained on board, he, too, would need time.

Krouwkam stressed that, in the event the matter was not heard in the next few months, the director of public prosecutions could encounter problems in securing further postponements of partly heard cases.

He said the defence could ask a magistrate to strike the matter off the roll, imposing conditions on the reinstitution by the prosecution

The process could take even longer if the director of public prosecutions was not successful at the Supreme Court of Appeal, and took the matter to the Constitutional Court.

Meanwhile, as the case progresses through the court system, Parliament’s Justice and Constitutional Development portfolio committee has called for written submissions on the draft bill by Monday.

The committee said it would not conduct public hearings based on the submissions received.

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Weekend Argus