Director of Public Prosecutions, Western Cape v Prins and Others
Jurisdiction | South Africa |
Judge | Mpati P JA, Navsa JA, Brand JA, Malan JA and Wallis JA |
Judgment Date | 15 June 2012 |
Citation | 2012 (2) SACR 183 (SCA) |
Docket Number | 369/12 [2012] ZASCA 106 |
Hearing Date | 13 June 2012 |
Counsel | BE Currie-Gamwo (with B Hendry-Sidaki) for the appellant. PA Botha (with Y Isaacs) for the respondent. MR Madlanga SC (with V Ngalwana and N Nharmuravate) for the intervening party. S Budlender for the first amicus curiae. M Norton (with S Cowen) for the second amicus curiae. |
Court | Supreme Court of Appeal |
Wallis JA (Mpati P JA and Navsa JA, Brand JA and Malan JA concurring): E
[1] No judicial officer sitting in South Africa today is unaware of the extent of sexual violence in this country and the way in which it deprives so many women and children of their right to dignity and bodily integrity F and, in the case of children, the right to be children; to grow up in innocence and, as they grow older, to awaken to the maturity and joy of full humanity. The rights to dignity and bodily integrity are fundamental to our humanity and should be respected for that reason alone. It is a sad reflection on our world, and societies such as our own, that women and children have been abused and that such abuse continues, so that their G rights require legal protection by way of international conventions [1] and domestic laws, as South Africa has done in various provisions of our Constitution [2] and in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act). It was rightly stressed in argument, in the light of evidence tendered and admitted in this appeal, H that the Act is a vitally important tool in the ongoing fight against this
Wallis JA (Mpati P JA and Navsa JA, Brand JA and Malan JA concurring)
scourge in our society. [3] The issue in this appeal is whether, as the high A court held, the Act is fatally flawed in consequence of the legislature not having expressly specified the penalties attracted by the commission of the offences set out in chs 2, 3 and 4 thereof.
[2] It is unnecessary to spell out in great detail the consequences of the B high court's judgment on the protection of victims of sexual violence. There are many judgments in which our courts have emphasised the need for the rights of vulnerable people, in particular women and children, to be respected and protected. One of the ways in which that needs to be done is by the effective prosecution of those who infringe those rights. In S and Another v Acting Regional Magistrate, Boksburg, and Another, C [4] Mthiyane AJ, speaking of s 69 of the Act, said:
'Our Constitution sets its face firmly against all violence, and in particular sexual violence against vulnerable children, women and men. Given this, and the Act's emphasis on dignity, protection against violence against the person, and in particular the protection of women D and children, it is inconceivable that the provision could exonerate and immunise from prosecution acts that violated these interests.'
If the judgment of the high court in this case is correct, then its consequence is to 'exonerate and immunise from prosecution acts that violate' the interests of vulnerable children, women and men who have E been subjected to sexual abuse. In order to determine whether that is so it is necessary to set out the circumstances in which the issue arises.
Background to the appeal
[3] Mr Arnold Prins was charged, before the regional court at Riversdale, F with contravening s 5(1) of the Act, in that he sexually assaulted the complainant by touching her breasts and private parts without her consent. Prior to his being called upon to plead, he objected to the charge-sheet in terms of s 85 of the Criminal Procedure Act 51 of 1977. His objection was based on the fact that neither s 5(1) itself, nor any G other provision of the Act, provides for a penalty for the offence created by s 5(1). The magistrate upheld the objection, apparently on the basis that the absence of a penalty infringed Mr Prins' fair-trial rights in terms of the Constitution, although his reasons are not entirely clear. The Director of Public Prosecutions, Western Cape, appealed to the Western Cape High Court against that decision. That court (per Blignault J, H Fortuin J and Mantame AJ concurring) concluded that, in the absence of a penalty in the Act, the charge failed to disclose an offence and dismissed the appeal. This further appeal is with the leave of the high court.
Wallis JA (Mpati P JA and Navsa JA, Brand JA and Malan JA concurring)
A [4] The appeal has been heard urgently by this court in view of its implications for all prosecutions arising under the various provisions of the Act. None of the 24 sections describing sexual offences in chs 2, 3 and 4 of the Act prescribes a penalty, nor does the Act contain a general penalty clause. Accordingly, if the judgment of the court below B is correct, the act will be rendered largely ineffective, because, in terms of that judgment, the absence of specified penalties means that it will have failed in one of its purposes, that of creating criminal offences. That has serious implications for the ability to prosecute those who have committed sexual offences since the Act came into operation on C 16 December 2007 and have not yet been prosecuted. They could at most be prosecuted for lesser common-law offences and perhaps not prosecuted at all. It could also potentially affect the validity of convictions and sentences under the Act since that date. All this was spelled out in an affidavit by the appellant that was admitted by consent at the commencement of the appeal. The statistics provided by the South D African Police Service to the Women's Legal Centre, and referred to in n 3, show the potential scale of the problem.
[5] The judgment by the Western Cape High Court is in conflict with three other judgments, one in the Free State, [5] one in KwaZulu-Natal, [6] and one in South Gauteng, [7] and it is imperative that there be clarity. The E Minister of Justice and Constitutional Development, under whose portfolio this legislation falls, was granted leave at the outset of the hearing to intervene and advance contentions in support of the validity of the legislation. The Centre for Child Law and the Women's Legal Centre Trust applied to be admitted as amici curiae and those applications F were also granted. They too contended that the legislation was effective to enable the prosecution of the various offences provided therein. Their arguments were largely based on a desire to ensure that the court give due weight to the constitutional rights of women and children.
The principle of legality G
[6] I have already outlined the importance of this case from the perspective of the right of all people, but in particular women and children, who are the most vulnerable and the most affected, to be protected against sexual violence. But that alone cannot be decisive of this appeal. The reason is that the decision by the high court flows from H a constitutional principle that is equally fundamental, namely the principle of legality. [8] The power of the state to prosecute people and the power of courts to try, convict and sentence offenders are public powers of the greatest importance. In the history of the struggle for basic human
Wallis JA (Mpati P JA and Navsa JA, Brand JA and Malan JA concurring)
rights the abuse of the criminal process by governments to suppress A dissent and stifle the views of those opposed to the regime in power is notorious. One can trace this in the history of many countries, but our own experience suffices to underline the fact that abuse of power, including abuse of the criminal process, lies at the heart of tyranny and B oppression. In the light of that history our Constitution demands that the 'Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law'. [9] The courts, as the guardians of the Constitution, are likewise constrained. Accordingly, it is essential to ensure that the powerful feelings of disgust that sexual assault and C sexual abuse arouse do not overwhelm the need for the state, in the form of the prosecuting authority in this case, to satisfy us that it would be lawful for a court trying Mr Prins, not only to convict him, but also to sentence him in a lawful manner. Just as we cannot invent new punishments, [10] so also we cannot invent a power to impose a punishment if none exists. D
[7] Both the magistrate and the court below founded their judgments on the principles encapsulated in the maxims nullum crimen sine lege (no crime without a law) and nulla poena sine lege (no punishment without a law). These maxims can be traced back to the French Revolution [11] and the provision in arts 7 and 8 of the Declaration of the Rights of Man and E of the Citizen of 26 August 1789, which in translation read:
No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law.
The law must prescribe only the punishments that are strictly and F evidently necessary, and no one may be punished except by virtue of a law drawn up and promulgated before the offence is committed, and legally applied.' [12]
The principles embodied in these maxims have subsequently been embodied in a number of human-rights instruments. They are part of our law and are contained in ss 35(3)(l) and (n) of the Constitution, G which read as follows:
'(3) Every accused person has a right to a fair trial, which includes the right —
. . . H
Wallis JA (Mpati P JA and Navsa JA, Brand JA and Malan JA concurring)
A not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;
. . .
to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed B between the time that the offence was committed and the time of sentencing.'
[8] The two maxims are, within their respective spheres, reflections of the principle of legality. In S v Dodo, [13] Ackermann J summed up their effect, insofar as the imposition of sentences for crimes is concerned, as C follows:
'(T)he nature and range of...
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