The Centre for Constitutional Rights welcomes a recent verdict by the Supreme Court of Appeal (SCA) which ends the controversy surrounding the enforcement of the Sexual Offences Act of 2007.

Last month the Western Cape High Court held that the case against Arnold Prins – who was charged with sexual assault according to the act – could not proceed as the court had ruled that there were no penalty clauses outlined by the act for the charge brought against him. Consequently, this lacuna in terms of the act invalidated any similar charges, as well as any convictions based upon them.

The court based its judgment on the criminal law principle of nulla poena sine praevia lege poenali, which states that a sanction must be imposed for an offence in a criminal case (and to validate prosecution and conviction on that charge), for a sanction to be legally imposed.

The consequence of the high court judgment was that all prosecutions under consideration countrywide (29 crimes as listed in the act) were withdrawn, postponed or declared pending until legal certainty was determined.

In terms of the act’s regulations, these included hundreds of pending cases, as well as an estimated 12 000 finalised cases whose rulings would now be placed in jeopardy.

However, the SCA found on appeal that a specific portion of the Criminal Procedure Act 51 of 1977 – article 276 – empowers the courts to impose convictions according to common as well as statutory law, when there is no other regulation to that effect. According to the SCA judges, article 276 gives the courts the right – when no penalty exists – to impose a sanction after conviction of a crime, within the jurisdiction of the court concerned, as it would be impractical if the regulation in question was only applicable to common law and not statutory crimes like those in the act.

The result of the SCA’s ruling is that all prosecutions and pending cases in terms of the act can proceed and the approximately 12 000 convictions will stand.

This is yet another wonderful example of the effectiveness and highly specialised nature and functionality of the SA judiciary.

It is a further indication of the importance of allowing our courts to freely perform their prescribed functions within our constitutional democracy as set out in the constitution – to enforce the law without fear, favour or prejudice.

Adv Jacques du Preez, Centre for Constitutional Rights