IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER: A134/08
In the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS,

and

JUDGMENT DELIVERED ON 11 MAY 2012

[1] Mr Arnold Prins ("respondent") was indicted in the regional court at Riversdale on a charge of contravening the provisions of section 5(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 ("the Sexual Offences Act") on 19 September 2009 by touching the breasts and private parts of the complainant without her consent.
[2]    Section 5(1) of the Sexual Offences Act reads as follows: 
"5    Sexual assault
(1) A person ('A') who unlawfully and intentionally sexually violates a complainant ('B'), without the consent of B, is guilty of the offence of sexual assault."
[3] Prior to the commencement of the trial respondent objected to the charge sheet in terms of section 85 of the Criminal Procedure Act 51 of 1977. It was contended on his behalf that the charge does not disclose an offence as section 5(1) of the Sexual Offences Act does not contain any penalty for the alleged offence.

[4] The regional magistrate upheld respondent's objection and quashed the charge.

[5] The Director of Public Prosecutions, Western Cape ("appellant") thereupon appealed to this court against the decision of the regional magistrate. A full court was constituted to hear the appeal.

[6] Mr L J Badenhorst appeared on behalf of appellant at the hearing of the appeal. Mr P A Botha, assisted by Ms Y Isaacs, appeared on behalf of respondent. The court is indebted to counsel for their helpful submissions.

The Sexual Offences Act

[9] The Sexual Offences Act contains a preamble and an objects clause. The thrust of the objects clause is contained in the following parts of section 2:

"2    Objects

The objects of this Act are to afford complainants of sexual offences the maximum and least traumatising protection that the law can provide, to introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this Act and to combat and, ultimately, eradicate the relatively high incidence of sexual offences committed in the Republic by:
(a) Enacting all matters relating to sexual offences in a single statute
(b) criminalising all forms of sexual abuse or exploitation;
(c) repealing certain common law sexual offences and replacing them with new and, in some instances, expanded or extended statutory sexual offences, irrespective of gender;..."

Any person ('A') who unlawfully and intentionally commits an act of sexual penetration with a complainant ('B'), without the consent of B, is guilty of the offence of rape.

4     Compelled rape

Any person ('A') who unlawfully and intentionally compels a third person ('C'), without the consent of C, to commit an act of sexual penetration with a complainant (B), without the consent of B, is guilty of the offence of compelled rape.
Sexual assault, compelled sexual assault and compelled self-sexual assault (ss 5-7)

(1) A person ('A') who unlawfully and intentionally sexually violates a complainant ('B'), without the consent of B, is guilty of the offence of sexual assault.
(2) A person ('A') who unlawfully and intentionally inspires the belief in a complainant ('B') that B will be sexually violated, is guilty of the offence of sexual assault.

A person ('A') who unlawfully and intentionally compels a third person ('C'), without the consent of C, to commit an act of sexual violation with a complainant ('B'), without the consent of B, is guilty of the offence of compelled sexual assault.

A person ('A') who unlawfully and intentionally compels a complainant ('B'), without the consent of B, to-

(a)    engage in-

a)	engage in any act which has or may have the effect of sexually arousing or sexually degrading B; or
b)	cause B to penetrate in any manner whatsoever his or her own genital organs or anus,

is guilty of the offence of compelled self-sexual assault.

[12] A remarkable feature of the 29 sexual offences described in chapters 2, 3 and 4 of the Sexual Offences Act is that not one of them contains any penalty clause. The six examples of these offences, quoted above, are in this regard typical of all of them. Only the offence of rape, described in section 3 of the Sexual Offences Act, can be distinguished from the other offences as penalties for it is dealt with in section 51(2) of the Criminal Law Amendment Act 105 of 1997.
[13] By contrast there are numerous provisions in the Sexual Offences Act that create offences which do contain typical penalty clauses. Section 38, for example, reads as follows:

"38   Offences and penalties

(b) Any person who with malicious intent or who in a grossly negligent manner discloses the results of any HIV tests in contravention of section 37, is guilty of an offence and is liable to a fine or to imprisonment for a period not exceeding three years.

[14] Sections 45, 46, 47 and 48 of the Sexual Offences Act impose certain obligations upon employers and employees with respect to the National Register for Sex Offenders established in terms of the provisions of the Sexual Offences Act. Sub-section (3) in each case contains a similar penalty clause save that the period of imprisonment is seven years. Sections 48 (dealing with licence applications) and 48 which create offences in respect of fostering, kinship care-giving, temporary safe care-giving, adoption of children or curatorship also contain typical penalty clauses. Sections 50, 52 and 54 likewise contain penalty clauses.

[15] Section 55 of the Sexual Offences Act can be described as a hybrid provision. It reads as follows:

"55 Attempt, conspiracy, incitement or inducing another person to commit sexual offence
Any person who-
(a) attempts;
(b) conspires with any other person; or
(c) aids,   abets,   induces,   incites,   instigates,   instructs, commands, counsels or procures another person,
to commit a sexual offence in terms of this Act, is guilty of an offence and may be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable."

"Punishment is an integral part of the concept of a crime. Without the liability to punishment there would be no distinction between penal and non-penal laws. Thus it follows that 'to render any act criminal in our law, there must be some punishment affixed to the commission of the act and where no law exists affixing such punishment there is no crime in law."

"[56] These provisions imply that a local government may only act within the powers lawfully conferred upon it. There is nothing startling in this proposition - it is a fundamental principle of the rule of law, recognised widely, that the exercise of public power is only legitimate where lawful. The rule of law - to the extent at least that it expresses this principle of legality - is generally understood to be a fundamental principle of constitutional law. This has been recognised in other jurisdictions.

….....................

[58] It seems central to the conception of our constitutional order 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. At least in this sense, then, the principle of legality is implied within the terms of the interim Constitution. Whether the principle of the rule of law has greater content than the principle of legality is not necessary for us to decide here. We need merely hold that fundamental to the interim Constitution is a principle of legality."

"We mean in the second place, when we speak of the "rule of law" as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals."

"We mean, in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. In this sense the rule of law in contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint."

"Legality requires that the qualifications or limitations on the basic freedoms should be general, prospective, open and clear. Expressed differently, restrictions on liberty that are over-broad, vague or discriminatory will violate the legality principle and facilitate the erosion of civil liberties. Where the restrictions are imposed by the criminal law, legality is expressed in the maxim nullum crimen sine lege; but the principle of a narrow and precise definition of legal inroads into freedom is equally applicable when they are imposed outside the criminal law by executive action or in terms of private law. Freedom through legality means, in a nutshell, that the law's constraints will be narrow and precise".

"	Parliament is obviously empowered to create new offences and
abolish old ones (whether they were statutorily created or originated in the common law) and to provide for the penalties courts may impose.

.No court exercising criminal jurisdiction in South Africa could convincingly claim to be the sole constitutional repository of power to do such things. Indeed, the courts have no inherent power to do any such thing. They cannot create new crimes. Nor can they invent a new kind of penalty such as, for example, physical detention under lock and key at some place other than a prison."

(3) SA 382 (CC) para [13]:

"... the nature and range of any punishment, whether determinate or indeterminate, has to be founded in the common or statute law; the principle of legality nulla poena sine lege requires this. This principle was in fact endorsed in Malgas. Even the exercise of the Court's 'normative judgment' [S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC)] in determining the nature and severity of the sentence within the options permitted by law has to be judicially exercised; it is not unfettered. This was and is true of all sentencing, not merely in the case of the most severe sentences. Statutes abound which limit court powers, even those of a High Court, to impose sentences relating to, for example, the extent of the punishment, the circumstances under which it may be imposed or when execution thereof may be suspended."

575:

"'Englishmen are ruled by the law, and by the law alone', wrote Dicey. 'A man may with us be punished for breach of law, but he can be punished for nothing else'. In its Latin dress of nullum crimen sine lege, Nulla Poena sine lege - that there must be no crime or punishment except in accordance with fixed, predetermined law - this has been regarded by most thinkers a self-evident principle of justice ever since the French Revolution.    The citizen must be able to ascertain beforehand how he stands with regard to the criminal law; otherwise to punish him for breach of that law is purposeless cruelty."

"These and similar provisions embody a principle of comparatively modern origin: there can be no room for it in legal systems which do not use statutes to prescribe a particular punishment or range of punishments for individual offences, but rely instead on the court to choose the appropriate punishment for any given offender. That was once the case with most legal systems. Therefore, although traces of the doctrine can be found in the writings of Bartolus de Saxoferrato in the 14th century (Commentaria ad digestum vetus, de iustitia et iure, 1.9.49 - 51), it really came to prominence only towards the end of the 18th century when developments in constitutional thinking led to the idea that crimes and their punishments should be regulated by statutes passed by the legislature. Article 8 of the French Declaration of the Rights of Man 1791 famously proclaimed that "nul ne peut etre puni qu'en vertu d'une loi etablie et promulguee anterieurement au delit et legalement appliquee." Ten years later, in his Lehrbuch des gemeinen in Deutschland geltenden peinlichen Rechts, p 20, para 24, von Feuerbach gave the principle its familiar and enduring Latin form, nulla poena sine lege. From these beginnings the principle came to be generally recognised and eventually to take its place in many constitutions, as well as, for example, in article 7(1) of the European Convention on Human Rights and article 15 of the International Covenant on Civil and Political Rights."

"34   These common law principles are entirely consistent with article 7(1) of the European Convention, which provides:

'No punishment without law

(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.'
The European Court has repeatedly considered the effect of this article, as also the reference in article 8(2) to "in accordance with the law" and that in article 10(2) to "prescribed by law".

Article 7 precludes the punishment of acts not previously punishable, and existing offences may not be extended to cover facts which did not previously constitute a criminal offence (ibid).

"92. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see S W v the United Kingdom and C R v the United Kingdom, 22 November 1995, para 34 and 32 respectively, Series A nos 335-B and 335-C, and Kafkaris, cited above, para 137).
93. Article 7 para 1 of the Convention goes beyond prohibition of the retrospective application of criminal law to the detriment of the accused. It also sets forth, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy (see, among other authorities, Coeme and Others v Belgium, nos. 32492/96, 32547/96 32548/96, 33209/96 and 33210,96, para 145, ECHR 2000 VII)."

"The principles expressed in these two citations are not new to our law. In fact they are based on the ancient Latin maxim nullum crimen sine lege, nulla poena sine lege -- that there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The rationale underlying this principle is clear. It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards (see Professor L. Tribe American Constitutional Law (2nd ed. 1988), at p. 1033). This is especially important in the criminal law, where citizens are potentially liable to a deprivation of liberty if their conduct is in conflict with the law."

"103. I do not accept the submission of the Commonwealth in the absolute terms in which it was proffered. In legislation, judicial decisions and statements of principles, both of municipal and international law, there has emerged a general abhorrence of retroactive criminal law. The notion that there should be no crime or punishment, except in accordance with law, was recognized as early as 1651, when Hobbes wrote:

'No law, made after a fact done, can make it a crime ... For before the law, there is no transgression of the law':
Leviathan, (1651), Chs.27-28, quoted in Glanville Williams, Criminal Law: The General Part, 2nd ed. (1961) (hereafter "Williams"), p 580.

An implied provision of the Constitution?

[33] The rule of law is one of the founding values of the Constitution. Section 1(c) thereof reads as follows:
"1 Republic of South Africa

The Republic of South Africa is one, sovereign, democratic state founded on the following values:
c)	Human dignity, the achievement of equality and the advancement of human rights and freedoms.
d)	Non-racialism and non-sexism.
e)	Supremacy of the constitution and the rule of law.
f)	Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness."

"The principle of legality is the juristic kernel of the Rule of Law in the context of the criminal law. The founding provisions of the Constitution of the Republic of South Africa, 1996, refer to the 'rule of law' and so any aspects of the principle of legality not specifically referred to in the Constitution could be read into the Constitution by an interpretation of the ambit of the Rule of Law."

"(3)   Every accused person has a right to a fair trial, which includes the
right-

(l) 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;

(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing;"

Submissions on behalf of appellant

"It is fundamental to any civilized system of criminal law that punishment is not inflicted except in respect of a contravention of the law previously defined as a crime (nulla poena sine lege). Conversely, the doctrine of legality requires that in criminalizing conduct the legislature should specify the penalty for the offence (nulla crimen sine poena). This principle is, however, by no means universally observed. It is true that more often than not the legislature in criminalizing conduct will specify the penalty attached to a contravention of the enactment. However, failure so to specify is not regarded as a serious flaw in the legislation. In such a case, it is presumed that the determination of the appropriate punishment has been left to the courts. To the extent that the courts habitually exercise such a discretion in the punishment of common-law crimes, this practice is not objectionable."

Was the omission of a penalty clause a mistake?

"[22] It seems to me therefore that it would be permissible to provide for a casus omissus if the intention of the legislature is clear. If that intention is only the subject of surmise, speculation, expectation or even probability, this method of interpretation is not allowed."

508 (SCA) para [17].

Conclusion

[57] I am accordingly of the view that the regional magistrate was correct in deciding that the charge against respondent did not disclose an offence.
[58] In the premises, the appeal is dismissed.

A P BLIGNAULT

C M FORTUIN

B P MANTAME