2829 2010.5.18 Rhodes Park, swings, child, children, neglect, abuse, City Parks, play. Picture: Cara Viereckl

A full bench of the Western Cape High Court has highlighted a fatal omission in the new Sexual Offences Act which could have a disastrous effect on pending sexual assault cases in the province.

Experts have warned that anyone accused of committing a sexual assault in terms of the act could now apply to have their charges quashed on the basis of the court’s ruling.

In addition, those who have already been convicted could apply to have their convictions set aside.

In effect, the judgment means that anyone accused of crimes in terms of certain sections of the new Sexual Offences Act cannot be formally charged - because legislators omitted to prescribe sentences for at least 29 offences listed in the act.

These include sexual assault, compelled sexual assault, consensual sexual acts with children, sexual exploitation and sexual grooming of children, and sexual offences against mentally disabled people.

While rape is one of the offences listed in Chapter 2 of the act, it is not affected because it is covered by the Criminal Law Amendment Act.

Yesterday’s judgment relates to a case which started in the Riversdale Regional Court in which the accused, Arnold Prins, was charged with a 2009 sexual assault in terms of the act, which came into effect in December 2007.

Prins’s lawyer, Sakkie Krouwkam, argued that the charge did not disclose an offence – because the act did not contain any penalty clauses, nor did it prescribe sentences.

He succeeded in his argument and the magistrate quashed the charge, setting Prins free.

But it didn’t end there.

The Western Cape Directorate of Public Prosecutions appealed to the High Court, where three judges heard the matter.

The key issue for the court was whether parts of the act, particularly the section which applied to Prins, disclosed an offence, because there were no penalty clauses for several offences.

In the judgment, it emerged that 29 sexual offences described in three chapters of the act did not contain any penalty clauses.

In Prins’s case, it was the state’s argument that it was the legislature’s intention to omit the question of punishment from the act because it intended to leave the issue of punishment to the discretion of the court.

However, Pieter Botha, for Prins, asked why, if this was indeed the intention, the legislature had not said so. In yesterday’s judgment, Judge André Blignault said the concept of conferring such a discretion on the court would “contradict and totally undermine” the legal principle of no penalty without a law.

The reason for that principle was that citizens were informed of the consequences, and to avoid the imposition of arbitrary penalties.

The court found that the magistrate was correct in deciding that the charge did not disclose an offence. Judge Chantal Fortuin and Acting Judge Pearl Mantame agreed.

Stephen Tuson, criminal law expert at Wits University, said the effect the judgment could have on pending cases was “extraordinary”.

It meant those charged with the same or similar offences, where there were no penalty clauses, could ask magistrates to quash the charges.

The magistrate, in turn, would be bound by the High Court ruling. Tuson also said it was “fortuitous” that rape was covered by another act.

Commenting on the effect it could have on cases already finalised, Tuson said the courts could expect a rush of people applying to have their convictions set aside. His view was that the legislature made an error in the act.

William Booth, chairman of the Law Society’s Criminal Committee, said the issue had been discussed among lawyers.

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Weekend Argus