Leila Samodien

THE Western Cape Director of Public Prosecutions (DPP) is considering whether to approach the Constitutional Court directly in its appeal against a landmark ruling over a gap in the Sexual Offences Act.

Rodney de Kock said their next step was to lodge their appeal.

A full Bench of the Western Cape High Court yesterday granted the DPP permission to appeal in the Supreme Court of Appeal.

However, the case potentially involves constitutional issues, which the Women’s Legal Centre said allowed room for them to petition the Concourt for direct access. De Kock said they were still weighing up whether to take this route.

In their judgment two weeks ago, the same Bench – made up of Judge André Blignault, along with Judge Chantal Fortuin and Acting Judge Pearl Mantame – cited two subsections of the constitution, one of which states that an accused cannot be convicted of an act that is not an offence, and the other which highlights “prescribed punishments”.

But the DPP’s lawyers have argued that the court erred in finding that the reference to prescribed punishments in the constitution showed that it was a requirement of an offence that a penalty be prescribed by law.

They have also argued that it is at the discretion of the courts, in line with the options created in the Criminal Procedure Act, to impose an appropriate punishment.

The ruling pointed out a gaping hole in the Sexual Offences Act of 2007, because MPs had failed to specify penalties to several offences under the act. As a result, it effectively rendered 29 crimes under the act unpunishable in the Western Cape, the only province as yet where the ruling is binding.

De Kock welcomed yesterday’s decision to grant them leave to appeal in the Supreme Court of Appeal.

Public comment on the justice committee’s amendment is expected to be submitted by Monday.