SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL DEVELOPMENT:  CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT AMENDMENT BILL, [B19 – 2012] 
5 JUNE 2012

1.	Discussion

Background information:

1.1	The Director of Public Prosecutions, Western Cape (“the DPP”) appealed to the High Court against a decision by a Regional Court Magistrate upholding an accused’s objection to a charge sheet in which he was charged with a contravention of section 5(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) (“the Act”).  The basis of the objection was that the charge sheet did not disclose an offence, as section 5(1) of the Act does not contain any penalty provision for the alleged offence.  

1.2	The DPP lodged an appeal against the judgment in terms of section 310 of the Criminal Procedure Act, 1977, to the Western Cape High Court. 

1.3	On Friday 11 May 2012 a Full Bench (three judges) of the Western Cape High Court found that the Regional Magistrate was correct in deciding that the charge against the accused does not disclose an offence and dismissed the appeal.  On 11 May 2012 the Western Cape High Court, in the case of Director of Public Prosecutions, Western Cape v Arnold Prins (case number A134/08), declared that although the Act, sets out what constitutes crimes, it does not prescribe penalties in some instances.  In terms of the judgment charges in respect of the aforementioned offences do not disclose offences and accordingly no successful prosecutions can follow.  The Court therefore found that the Regional Magistrate was correct in deciding that the charge against the accused does not disclose an offence and dismissed the appeal.  

1.4	The judgment has wide-ranging implications as a number of the offences described in Chapters 2, 3 and 4 of the Act do not have penalty provisions.  At present, there are a number of prosecutions and part-heard matters pending in the area of jurisdiction of the DPP wherein accused persons are charged with alleged offences in terms of the Act for which no penalties are stipulated.  In terms of the Prins judgment these charges do not disclose offences and accordingly no successful prosecutions can follow.    

1.5	It may be briefly mentioned that similar questions have arisen in two other High Court matters, one in the Free State High Court, Bloemfontein (in the case of S v Booi) and the other in the KwaZulu-Natal High Court, Pietermaritzburg (in the case of S v Mchunu).  In both these judgments the High Court came to a different conclusion. 

1.6	The DPP, Western Cape was granted leave, on 24 May 2012, to appeal the judgment to the Supreme Court of Appeal.  The Minister will be joined as an intervening party in the Supreme Court of Appeal once the appeal has been noted, in the interests of justice, given the effect of the Prins judgment on the administration of justice.      

Legislative measure:

1.7	Parliament, shortly after the judgment by the Western Cape High Court, realised that the uncertainty that has been created by the Prins judgment should be addressed immediately.  The decision was made that, while the outcome of the appeal is awaited, a statutory solution to manage the absence of penalties is required.  It was also noted that the promotion of the Amendment Bill (a Committee Bill) now will not weaken our arguments before the court, but is intended to put an immediate solution in place, while the courts deal with the matter.

2.	The Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill [B 19 – 2012]

2.1	Since it was decided that while the appeal is pursued as a matter of urgency, legislative amendments should also be promoted, the Bill therefore aims to amend the Act, so as to expressly provide that the imposition of penalties in respect of certain offences contained in the Act is left to the discretion of the courts.

2.2	Clauses 1 to 3 aim to amend sections 11, 17 and 23 of the Act, respectively, in order to promote consistency with the wording of other provisions of the Act in terms of which various offences have been created.

2.3	Clause 4 aims to affect consequential amendments to section 56 of the Act by amending the heading thereof and omitting subsection (7) from that section in order to insert that subsection in the proposed new section 56A of the Act.

2.4	Clause 5 aims to introduce a new section 56A in the Act in order to expressly clarify the intention of the Legislature that the imposition of penalties in respect of certain offences contained in the Act is left to the discretion of the courts within their penal jurisdiction.

2.5	By way of conclusion it may be mentioned that the Portfolio Committee on Justice and Constitutional Development called for and considered written submissions in respect of the Bill.  Interested parties who submitted comments welcomed the urgency with which the Bill is being promoted and expressed their support for the Bill.