Flaws in sex law a concern

VICTIMS of sex crimes fear a court ruling against the country’s 2007 Sexual Offences Act could see their attackers go unpunished.

Three judges of the Cape High Court ruled on Friday that there were fatal flaws in the Sexual Offences Act which made it impossible to prosecute 29 of the crimes it identifies.

Pending and finalised prosecutions for crimes including sexual assault and the sexual grooming and exploitation of children and the mentally disabled are all in danger of being derailed should the ruling stand.

Since the ruling was announced, Rape Crisis has fielded phone calls from many anxious victims of sex crimes, desperate to know if the judgment declaring large parts of the Sexual Offences Act to be fatally flawed would deny them justice.

Meanwhile, parliamentary officials and the National Prosecuting Authority (NPA) were consulting with counsel yesterday to find a way to appeal the ruling.

It has also emerged that Advocate Pieter Botha, who won the landmark judgment, alerted the NPA to the potential problem as early as January 2010.

Several opinions were written about the issue including an opinion by one of the most senior specialist sex crime prosecutors in the country, Bronwyn Pithey, that the lack of penalty clauses should not derail prosecutions of sexual assault.

Botha and attorney Sakkie Krouwkamp launched their first legal challenge in court in the Mossel Bay Regional Court recently.

The magistrate found in their favour ruling that a missing part of the Sexual Offences Act led to suspects not receiving a fair trial.

The Western Cape Director of Public Prosecutions appealed the ruling by the Mossel Bay Regional Court.

Now a full bench of the Cape High Court, led by Senior Judge Andre Blignault has ruled that the Mossel Bay court was right and that the legislature cannot create a crime without prescribing a penalty for it.

“There is a clear pattern in the Sexual Offences Act,” Blignault said pointing out that parliament did not create penalties for such major offences.

He explained that under universal legal systems there “can be no crime without a corresponding punishment”.

NPA spokesman, Mthunzi Mhaga said they were scrutinising the judgment with a view to identifying grounds to appeal.