Lawmakers in a tizz over ‘bizarre’ ruling

Lawmakers are scrambling to shut a potentially calamitous legal loophole in the Sexual Offences Act, after a court found that its failure to prescribe penalties for many sexual crimes effectively renders much of the legislation useless.

The Western Cape High Court upheld an earlier judgment of the Riversdale Regional Court on Friday by dismissing a criminal complaint against Arnold Prins on the grounds that “the charge against the respondent did not disclose an offence”.

Prins was charged with sexual assault for “touching the breasts and private parts of the complainant without her consent”.

But Judge André Blignault ruled that the legal maxims of nulla poena sine lege(no punishment without a law) and nullum crimen sine lege(no crime without a law) applied in this case.

This meant the act’s failure to prescribe penalties for 29 sexual crimes – including sexual assault, compelled sexual assault, sexual exploitation and the sexual grooming of children – rendered these crimes unpunishable. Judge Blignault said the absence of penalties for these crimes meant that the charges against Prins “did not disclose an offence”.

This has raised the spectre of people convicted of certain sexual offences since the act came into force in December 2007 relying on the high court ruling to overturn their own convictions, or of those facing such charges to have their cases dismissed.

Members of the parliamentary justice committee – which processed the seemingly flawed law – were due to meet on Tuesday to discuss the way forward, committee chairman Lluwellyn Landers told The Star on Monday. He said he would discuss the matter with the Department of Justice and Constitutional Development – the sponsor of the act – to hear what steps it thought were necessary under the circumstances.

He explained that the committee was considering a two-pronged response to the judgment. On the one hand, the justice department would appeal the high court ruling in the Supreme Court of Appeal or the Constitutional Court. And, on the other, MPs would take “corrective action” by drafting urgent amendments to the act in order to close any potential loopholes.

Justice department spokesman Tlali Tlali could not be reached for comment.

A senior ANC member of the justice committee said the high court’s “bizarre judgment” was a classic example of “the law being an ass”, and suggested that the “ordinary person” would find the judgment “completely illogical and devoid of common sense”.

“I just think it’s a whole lot of legal acrobatics. The question for me is: what is the prejudice to the accused? How can you really say the legislature did not intend these crimes to be punished? Clearly, if there was a mistake, then it was an oversight.”

This view was supported by Professor Dee Smythe, from the University of Cape Town’s law, race and gender unit, who said on Monday that the high court judgment “will not stand”.

“I think the judgment is wrong on a whole lot of grounds and the decision will be overturned (on appeal),” she said.