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[2012] ZASCA 106
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Director of Public Prosecutions, Western Cape v Prins and Others (369/12) [2012] ZASCA 106; 2012 (2) SACR 183 (SCA); 2012 (10) BCLR 1049 (SCA); [2012] 3 All SA 245 (SCA) (15 June 2012)

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REPORTABLE
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 369/12
In the matter
between:
DIRECTOR OF
PUBLIC PROSECUTIONS,
WESTERN CAPE
…...........................................................................
Appellant
and
ARNOLD PRINS
….........................................................................
Respondent
MINISTER OF
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
…..........................
Intervening
Party
CENTRE FOR CHILD
LAW
….......................................
First
Amicus Curiae
WOMEN’S
LEGAL CENTRE TRUST
…...................
Second
Amicus Curiae
Neutral citation:
DPP v Prins (Minister of Justice and Constitutional
Development & two amici curiae intervening)
(369/12) [2012]
106 ZASCA (15 June 2012)
Coram:
MPATI
P, NAVSA, BRAND, MALAN and WALLIS JJA.
Heard
: 13
June 2012
Delivered
: 15
June 2012
Summary:
Criminal
law –
s 5(1)
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
– failure to specify in same
statute penalty on conviction – in light of the provisions of
s 276
of the
Criminal Procedure Act 51 of 1977
does failure mean
that the section does not create a criminal offence –
application of maxim
nulla poena sine lege
and principle of
legality.
ORDER
On appeal from:
Western Cape High Court (per Blignault J, Fortuin J and Mantame
AJ concurring, sitting on appeal from a regional magistrate):
1 The appeal is
upheld.
2 The order of the
high court is set aside and replaced by the following order:
‘
The
appeal succeeds and the order of the magistrate is altered to one
dismissing the objection to the charge.’
JUDGMENT
WALLIS JA (MPATI P
and NAVSA, BRAND and MALAN JJA concurring)
[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 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
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, that the Act is a vitally important tool
in the ongoing fight against
this scourge in our society.
3
The issue in this appeal is whether,
as the high 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 chapters 2, 3
and 4 thereof.
[2]
It is unnecessary to spell out in great detail the consequences of
the 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
& another v Acting Regional Magistrate, Boksburg: Venter &
another
,
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 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 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, 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 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,
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.
[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 chapters 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 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 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 African Police Service to
the Women’s
Legal Centre, and referred to in footnote 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 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 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 gives due weight to the
constitutional
rights of women and children.
The principle of
legality
[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 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 rights the
abuse of the criminal process by governments
to suppress 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 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 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.
[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 Articles 7 and 8 of the Declaration of the
Rights of Man and of the Citizen of 26 August 1789, which in
translation
read:
‘
7
No
person shall be accused, arrested, or imprisoned except in the cases
and according to the forms prescribed by law …
8
The law must prescribe only the punishments that are strictly and
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, which read as follows:
‘
(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;
(m)
…
(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.’
[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 follows:
‘
[T]he
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.’
In
other words the imposition of a sentence by a court must have its
justification in either the common law or statute. In the absence
of
a provision that empowers the court to impose a sentence it is
powerless to do so. This is not a new principle created by the

Constitution. As long ago as 1924 the authors of the leading textbook
on criminal law and procedure
14
wrote:
‘
The
punishment to be inflicted for an offence must be of the nature and
extent authorised by law.’
[9]
The issue in the present case is whether our courts have power to
impose a sentence for offences under the Act. That question
is
complicated by the fact that certain of those offences
15
are
specifically referred to in Schedule 2 to
Criminal
Law Amendment Act 105 of 1997 (the minimum sentencing legislation).
The court below thought that this resolved any problem
related to
those offences, but it is unclear whether that is correct, as the
legislation merely provides for a minimum sentence,
not a general
power to impose a sentence for these offences. However, whatever the
position in those cases, the offence constituted
by s 5(1) of
the Act and the bulk of the offences in chapters 2, 3 and 4 of the
Act are not affected by the minimum sentencing
legislation and raise
in unadulterated form the fundamental question of whether the courts
have any power to sentence offenders
for these offences.
The courts’
sentencing powers
[10] Conduct is
criminal either under the common law or by statute. In the latter
case it is usual for the legislature both to define
the criminal
conduct and to specify the penalty or range of penalties that may be
imposed by courts trying the statutory offence.
Where that occurs the
powers of the court in regard to sentence are, generally speaking,
clear, although problems can arise.
16
In the case of common law crimes the position is different, because
it has never been the practice for parliament, as the only

legislative body having power to deal with this question, to
prescribe the sentences that courts may impose for such crimes. In

such cases courts imposed sentence in the exercise of a judicial
discretion within the limits of their jurisdiction. I will first

examine the nature and extent of that discretion.
[11] The
jurisdiction of the high courts in regard to sentence for common law
offences was in general not circumscribed by statute.
17
In regard to magistrates’ courts, where most criminal cases
were prosecuted, the constraints within which the courts operated
in
imposing sentences on offenders were laid down in the statute
prescribing the scope of their jurisdiction and their general
powers.
The relevant provision has for many years been
s 92
of the
Magistrates’ Courts Act 32 of 1944
. That now reads:
‘
Limits
of jurisdiction in the matter of punishments.—
(1) Save as
otherwise in this Act or in any other law specially provided, the
court, whenever it may punish a person for an offence—
(a)
by imprisonment, may impose a sentence of imprisonment
for a period not exceeding three years, where the court is not the
court
of a regional division, or not exceeding 15 years, where the
court is the court of a regional division;
18
(b)
by fine, may impose a fine not exceeding the amount
determined by the Minister from time to time by notice in the Gazette
for the
respective courts referred to in paragraph
(a)
;
(c)
…
(d)
by correctional supervision, may impose correctional
supervision for a period as contemplated in section 276A (1) (b) of
the Criminal
Procedure Act, 1977 (Act No. 51 of 1977).’
[12] The general
powers of both the high courts and the magistrates’ courts in
relation to sentence were affected, in respect
of certain common law
crimes, by the provisions of the minimum sentencing legislation,
which introduced requirements for the imposition
of minimum sentences
in relation to the offences described in Schedule 2 to that Act, most
of which were common law offences. Courts
were empowered to impose
sentences less than the prescribed minimum sentences where there were
substantial and compelling circumstances
justifying the imposition of
a lesser sentence and in some other limited circumstances.
19
In its initial form the legislation did not alter the jurisdiction of
regional magistrates’ courts. Instead they were enjoined,
in
cases where they were satisfied that a sentence greater than any
falling within that court’s jurisdiction should be imposed
for
a scheduled offence, to refer the case to the high court for the
purpose of sentencing.
20
That has since been altered to extend the sentencing powers of the
regional court in relation to the scheduled offences, whilst

conferring an automatic right of appeal on a person convicted and
sentenced on this basis.
[13]
Within these general constraints our courts, both the high courts and
the various levels of magistrates’ courts, have
continued to
impose sentences across the whole spectrum of common law criminal
offences from murder to common assault; robbery,
housebreaking, theft
and malicious injury to property; kidnapping; fraud, forgery and
uttering, and extortion; sexual offences,
ranging from rape to
indecent assault; and many others. In doing so they exercised a
judicial discretion on the basis that ‘the
measure of
punishment is a matter for the judge who imposes it’.
21
The
rules governing the exercise of that discretion were set out in
countless decisions of this court. It is appropriate to reflect
on
how Mr Prins, if convicted, would have been dealt with under that
regime. He was charged on the basis of an allegation that
he had
fondled the complainant’s breasts and private parts without her
consent. Such conduct (if proven) has always constituted
a crime in
South Africa. Until the coming into force of the Act it was
prosecuted as the common law crime of indecent assault,
which was
repealed and replaced by the offence of sexual assault in s 5(1)
of the Act.
22
There
was no statutorily prescribed sentence for this offence. Accordingly
under the law as it stood prior to the coming into force
of the Act
Mr Prins would have been prosecuted for the common law offence of
indecent assault and, if convicted, sentenced by the
regional
magistrate to a sentence within his statutory powers.
[14] None of this is
controversial. Problems arise when statutory offences are created
without specifying a penalty. That is the
problem in the present
instance. Although the instances where this arose are rare, where a
criminal offence was created by legislation,
but no penalty was
prescribed in that legislation, there were judgments that held that
the court could impose a sentence, within
the limits of its general
jurisdiction.
23
That also had some academic support. Thus Professor Snyman writes:
‘
If
a statutory provision creates a criminal norm only, but remains
silent on the criminal
sanction
…
the
punishment is simply in the court’s discretion, that is, the
court itself may decide what punishment to impose.’
24
The high court’s
decision effectively holds that this latter proposition is incorrect
and that, in the absence of a statutorily
prescribed penalty, no
offence is created, however clear the language of the statutory
provision. That is necessarily implicit
in its conclusion that the
charge sheet failed to disclose an offence. In other words it held
that the absence of a penalty provision
in the Act in respect of
these offences meant that the relevant sections did not give rise to
an offence at all.
[15]
This conclusion conflates the operation of the two maxims. One can
readily see that, when a court is confronted with the question

whether a statutory provision prohibiting particular conduct is a
crime, the failure of the legislature to attach a penalty to

non-compliance is an important factor in determining whether a crime
was constituted thereby. This was the determining factor in
this
court in
R
v Zinn
,
25
where
it was held that a
Besluit
by
the Transvaal Volksraad, prohibiting the use or occupation of land in
townships by ‘Coloured’ people, did not, in
the absence
of a criminal penalty, create a criminal offence. Greenberg JA, who
gave the judgment of the court, carefully refrained
from deciding
whether, in the absence of both an express statement of criminality
and a penalty, it was permissible for a court
to construe a
legislative prohibition on particular conduct as creating a crime by
necessary implication.
[16]
That issue arose in the controversial decision in
R
v Forlee
supra,
which concerned a statute that prohibited the sale of opium, save by
a pharmacist under a prescription, but did not say that
such a sale
was a crime nor provided for a penalty for making such a sale. Mason
J pointed out that the sale of opium in such circumstances
had always
been a crime and that the possession of opium, other than by a
pharmacist or under a prescription, was said specifically
to be a
crime. He concluded that the absence of a penalty did not mean that
the sale of opium was not an offence punishable by
the courts within
their ordinary powers. I agree with Greenberg JA in
Zinn
’
s
case, supra,
26
that:
‘
The
final conclusion, in
Rex
v Forlee
(
supra
),
that the enactment constituted an offence was based on the broad
ground that the act in question (viz., the sale of opium) was

''expressly prohibited in the public interest and with the evident
intention of constituting an offence".’
The approach of the
court was that an inference of an intention to criminalise the
prohibited conduct could be drawn from the language
of the statute
even though there was no clear statement to that effect.
[17]
The decision in
R
v Forlee
has
been the subject of considerable academic, and some judicial,
criticism on the basis that to hold that a statute creates a crime
by
necessary implication infringes the principle of legality.
27
However,
it is unnecessary to decide whether the criticism is justified,
because that question does not arise in the present case.
We are not
asked to infer that s 5(1) and the other relevant provisions of
the Act render the conduct described therein criminal.
The problem in
the present case is the effect of the absence of a penalty provision
on the offences created by the Act. Before
turning to address that
issue I will briefly indicate why it is clear that the Act creates
criminal offences in chapters 2, 3 and
4 thereof.
The Act creates
criminal offences and contemplates offenders being sentenced
[18] There can be no
doubt that the Act in express terms created criminal offences in ss 2
to 26 thereof, all of which are couched
in similar terms. My starting
point is the statement of the objects of the Act in s 2 thereof,
which reads:
‘
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 …’
Each of these
objects refers expressly to the creation of criminal offences.
[19] The long title
to the Act also makes its purpose clear. It is first a consolidating
measure directed at bringing together in
one piece of legislation all
criminal offences of a sexual nature. Second, it replaces and in some
respects broadens the scope
of existing common law crimes of a sexual
nature. Third, it creates a number of new offences. This emerges
clearly and without
any need for explanation or clarification from
the following portions of the long title:
‘
To
comprehensively and extensively review and amend all aspects of the
laws and the implementation of the laws relating to sexual
offences,
and to deal with all legal aspects of or relating to sexual offences
in a single statute, by—
* repealing the common law
offence of rape and replacing it with a new expanded statutory
offence of rape, applicable to all forms
of sexual penetration
without consent, irrespective of gender;
* repealing the common law
offence of indecent assault and replacing it with a new statutory
offence of sexual assault, applicable
to all forms of sexual
violation without consent;
* creating new statutory offences
relating to certain compelled acts of penetration or violation;
* creating new statutory
offences, for adults, by criminalising the compelling or causing the
witnessing of certain sexual conduct
and certain parts of the human
anatomy, the exposure or display of child pornography and the
engaging of sexual services of an
adult;
* repealing the common law
offences of incest, bestiality and violation of a corpse, as far as
such violation is of a sexual nature,
and enacting corresponding new
statutory offences;
* enacting comprehensive
provisions dealing with the creation of certain new, expanded or
amended sexual offences against children
and persons who are mentally
disabled, including offences relating to sexual exploitation or
grooming, exposure to or display of
pornography and the creation of
child pornography, despite some of the offences being similar to
offences created in respect of
adults as the creation of these
offences aims to address the particular vulnerability of children and
persons who are mentally
disabled in respect of sexual abuse or
exploitation;
* eliminating the differentiation
drawn between the age of consent for different consensual sexual acts
and providing for special
provisions relating to the prosecution and
adjudication of consensual sexual acts between children older than 12
years but younger
than 16 years;
* criminalising any attempt,
conspiracy or incitement to commit a sexual offence …’
[20] It is
convenient, in considering a more specific example, to look at the
charge facing Mr Prins. He was charged with a contravention
of s 5(1)
of the Act, which provides that:
‘
(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.’
Nothing
could be clearer than that this provision creates a criminal offence.
The same is true of each of the other provisions that
define criminal
offences in chapters 2, 3 and 4 of the Act. They are all couched in
language that proclaims unequivocally that
their purpose is to render
criminal the conduct described therein. This is not a case where the
intention to criminalise the conduct
in question must be inferred. It
is expressly stated. The language of the sections is unequivocal and
the context provided by the
need to protect vulnerable people against
sexual attacks in the light of the Constitution and South Africa’s
international
obligations reinforces the construction that each of
the relevant sections creates a criminal offence.
28
No
other construction has been suggested.
[21] The Act is
equally unequivocal in its contemplation that on conviction the
courts will impose an appropriate sentence on the
accused. That is
clear from s 56(7) of the Act, which provides that:
‘
If
a person is convicted of any offence under this Act, the court that
imposes the sentence shall consider as an aggravating factor
the fact
that the person—
(
a
)
committed the offence with intent to gain financially, or receive any
favour, benefit, reward, compensation or any other advantage;
or
(
b
)
gained financially, or received any favour, benefit, reward,
compensation or any other advantage,
from the commission of such
offence.’
In
addition, the National Director of Public Prosecutions is required to
develop and publish directives dealing with the sentencing
of persons
after conviction of offences under the Act, and the provision of
pre-sentencing reports and information concerning the
impact of the
sexual offence on the complainant.
29
A
number of other sections contemplate the imposition of a sentence on
a person convicted of contravening any of the provisions
in chapters
2, 3 and 4 that creates an offence. The National Register for Sex
Offenders, provided for in s 42, must contain
particulars of the
sentence imposed on an offender whose name falls to be included in
the Register.
30
Among
the persons whose names must be included in the Register are those
who are serving or have served a sentence of imprisonment
as the
result of a conviction for a sexual offence against a child or a
person who is mentally disabled.
31
[22]
The Act thus expressly renders criminal the conduct described in the
various sections in chapters 2, 3 and 4 thereof and contemplates
the
imposition of sentences on offenders. Its aim is the prosecution and
sentencing of persons who commit these offences. This
is not a matter
of implication but is expressly stated in the Act. The difficulties
raised by
R
v Forlee
do
not arise in this case.
The issues
[23]
Against this background, the conclusion by the high court that the
charge sheet did not disclose an offence was, on the face
of it,
incorrect. It undoubtedly disclosed an offence, unless the absence of
a penalty in the Act itself, or elsewhere in other
legislation, has
the effect of displacing the clear language of these sections and
rendering their statement that particular conduct
is a criminal
offence nugatory. That raises two separate issues. The first is
whether, notwithstanding the absence of an express
penalty provision
in the Act, there is a legal basis in either the common law or an
applicable statute for the imposition of sentences
on persons
convicted of the various offences set out in the Act. If there is,
the basis for the high court’s decision falls
away as it was
entirely founded on the absence of any penalty. The second issue
arises if the high court was correct in holding
that there is no
legal basis for imposing a penalty on offenders. If that is so the
effect of this on the validity of charge sheets
in relation to
offences set out in the relevant sections of the Act must be
determined. As already noted the high court held that
this
invalidated the charges. That may be incorrect, as the effect of a
decision that these sections do not create criminal offences,
because
of the absence of a statutorily prescribed penalty, is to say that
the relevant sections are unconstitutional. That follows
from the
reliance on the maxim
nulla
poena sine lege
and
the principle of legality. A magistrates’ court lacks
jurisdiction to hold that a statute is unconstitutional. Accordingly,

if a question of the constitutionality of a statutory offence arises
in the course of a criminal trial in the magistrates’
court,
the proper approach is to conduct the trial, subject to a reservation
of rights in relation to the point of unconstitutionality,
and then
to raise that point in an appeal. There may be special circumstances
in which it would be proper to stay the proceedings
before the
magistrate pending an appropriate challenge in the high court, but in
general that approach should be eschewed for the
reasons stated by
Langa CJ in
Thint
(Pty) Ltd v National Director of Public Prosecutions
&
others
.
32
In
this case, considering the magistrate’s view that he lacked any
sentencing power, as well as the importance of the issues
and the
public interest, an approach to the high court would probably have
been the better course.
[24]
The two issues identified in the previous paragraph were not
addressed in that form by the court below and they were not raised
in
precisely those terms in the formulation of Mr Prins’ objection
to the charge sheet. There it was said that the charge
did not comply
with the requirements of the Criminal Procedure Act 51 of 1977 (the
CPA) because it did not refer to the penalty
provisions applicable to
the crime; that because there was no reference to any penalty
provisions the charge lacked a material
element of the statutory
offence; that the charge did not disclose an offence because it did
not refer to the applicable penalty
provisions and that it lacked
sufficient particularity because of the absence of a reference to the
relevant penalty provisions.
In each of these forms the objection was
deficient because it proceeded from the erroneous premise that it is
necessary to the
validity of a charge, at least one of committing a
statutory offence, to specify the penal consequences of conviction.
That is
not correct. All that is required is that the charge set out
the particulars of the offence with which the accused is charged.
33
That
does not include the sentence that may be imposed on conviction. It
is only necessary to specify the penal consequences of
conviction
where the prosecution proposes to rely upon specific provisions, such
as those in the minimum sentencing legislation,
where it is necessary
to forewarn the accused of the potential consequences of conviction,
if that may affect the manner in which
the defence is conducted.
Whilst it may be customary and desirable, when an offence is created
by statute and the statute also
specifies the penalty, for the charge
sheet to refer to the penalty,
34
its
absence does not render the charge invalid or warrant the quashing of
the charge.
35
Whether
it may, in some circumstances, impinge on an accused person’s
fair trial rights in another way does not arise in this
case. Before
us, counsel for Mr Prins accepted that his fair trial rights were not
in issue.
[25]
There is much to be said for the proposition that the issue, that Mr
Prins was seeking to raise by his objection, only properly
arises at
the end of a case where an accused has been convicted and the issue
of sentence comes to the fore. However, now that
it is before us, it
is undesirable not to deal with it knowing that it will otherwise
return to this court in the near future.
However, if the argument on
his behalf is upheld, attention will need to be given to the
appropriate form of relief. On the charge
as formulated, he could
plead guilty to, or be found guilty of, assault with intent to commit
grievous bodily harm or common assault,
36
and
there is no question about the entitlement of the regional court
before which he has been arraigned to sentence him for those

offences. Accordingly, even if his contentions are correct it does
not necessarily follow that the charge should be quashed.
A legal basis for
sentencing offenders under the Act
[26] I turn then to
deal with the first question, namely, whether there is any provision
of the common law, or of a statute, that
provides for the imposition
of sentence on a person convicted of an offence under the Act, for
which no penalty is expressly stipulated
and which does not fall
within the minimum sentencing legislation. The debate before us
revolved around this question and in particular
the state’s
reliance on s 276 of the CPA. It is appropriate to note that
this argument was not raised before the high
court (and presumably
before the magistrate). Had it been, I have no doubt that a judge, as
experienced as Blignault J, would have
dealt with it and possibly the
outcome of the case would have been different. Although there was
some muted protestation on behalf
of Mr Prins about the fact that in
the high court reliance had not been placed on s 276 counsel
accepted that the argument
was one of law that can properly be raised
before us.
[27] Section 276(1)
provides that:
‘
Subject
to the provisions of this Act and any other law and of the common
law, the following sentences may be passed upon a person
convicted of
an offence …’.
The sub-section goes
on to specify imprisonment, periodical imprisonment, declaration as
an habitual criminal, committal to an institution
established by law,
a fine, correctional supervision and imprisonment from which a person
may be placed under correctional supervision,
as permissible
sentences. Sub-section (2) makes these powers in regard to sentence
subject to other provisions requiring a court
to impose a specific
sentence or limiting its powers in regard to sentence or derogating
from powers conferred under legislation
to impose some other type of
sentence or order a forfeiture in addition to any other punishment.
[28]
The State argued that s 276(1) is a general penalty provision
empowering courts to impose sentences in all situations
where there
is no other provision in law prescribing the sentence that can be
imposed for an offence.
37
It
contends that the section provides the legal foundation for the
imposition of sentences in relation to common law crimes as well
as
statutory crimes, where no sentence is otherwise prescribed. Beyond
that the precise scope of the court’s sentencing powers
depend
upon whether it is a high court, a regional court or a magistrates’
court. In this way it was submitted that the principle
of legality is
satisfied. It is immaterial, so this argument proceeded, that the
provisions in regard to sentence are derived from
a statute other
than the Act and need to be garnered from s 276, read with the
jurisdictional limitations on the court before
which the accused is
charged. That is the case with, for example, rape, where the
sentencing powers of courts are derived from
the minimum sentencing
legislation. It is the case with all common law crimes, where the
elements of the offence are derived from
the common law and the
sentencing powers of the court derive from s 276 of the CPA. The
State contended that the same position
prevails when a statute
creates a crime but does not itself provide for a penalty. The
permissible penalties are then to be found
in s 276 read with
the relevant provisions (if any) regarding the powers of the court
concerned in regard to sentence.
[29] Counsel for Mr
Prins join issue with this argument. They contend that the opening
words of s 276(1), namely:
‘
Subject
to the provisions of this Act and any other law and of the common
law, the following sentences may be passed upon a person
convicted of
an offence …’,
contain
a general enabling provision, as far as the various forms of
punishment are concerned, but are not meant as a source of
the power
to sentence an offender for a statutory crime. They rely on the
following passage from the judgment of this court in
S
v Van Dyk
:
38
‘
The
correct interpretation of the section
must
be determined from the context of s 276 as a whole. It is
headed: “Nature of Punishments”. Section 276(1)
lists, in
general terms, various forms of punishment available for
consideration and imposition by a court which has convicted
a person
of an offence either in terms of a particular statute or under the
common law. The use of the words “subject to”
at the
beginning of subsec (1) indicates that the subsection will be
subservient to any provision of the common law, the Act or
another
statute in case of conflict (cf
S
v Marwane
1982
(3) SA 717
(A)
at 747H – 748B).’
They
submit that if s 276 may be invoked in respect of any offence
for which no other sentence is prescribed then it renders
the penalty
provisions in all other legislation superfluous and contend that the
proposition that it resolves the question of a
legal basis for
sentencing offenders under the provisions of the Act ‘is simply
not correct’. They also point out that
the charge sheet makes
no reference to this section.
[30] I start, as
with the interpretation of any other statutory provision, with the
language of s 276(1). Its operative words
are ‘the
following sentences may be passed upon a person convicted of an
offence’. There is nothing obscure or unclear
about that
language. It identifies the sentences that our law permits and says
that those sentences may be imposed upon a person
convicted of an
offence. It echoes the similar language of the earlier Criminal
Procedure Acts. Thus s 338(2) of the Criminal
Procedure Act 31
of 1917 read:
‘
Sentences
to the following punishments may be passed upon a convicted offender
subject to the provisions of this Act or of any other
law or of the
common law …’
Section 329(3) of
the Criminal Procedure Act 56 of 1955 read:
‘
The
following sentences may subject to the provisions of this Act or any
other law or of the common law be passed upon a person
convicted of
any offence …’
The
section has a twofold purpose. In the first place it empowers courts
to impose sentences upon persons convicted of crimes. It
is the
embodiment of the principle
nulla
poena sine lege
.
Second it limits the punishments that courts may impose to those set
out in the section and no others. That is what, as was said
in
S
v Malgas
supra,
39
prevents
the courts from devising new punishments.
[31] That these
sections have been, and s 276 now is, the source of the power of
our courts to impose sentences is apparent
from looking at the case
of common law crimes. There is no other provision of our law dealing
with the power of courts to impose
sentences for such crimes. Absent
s 276 neither the magistrates’ courts nor the high courts
would be entitled to impose
sentences on people who commit common law
crimes. Counsel for Mr Prins accepted that this is correct. But that
poses an insuperable
problem for his argument. The language of
s 276(1) does not restrict its field of operation to common law
crimes. It is an
entirely general empowering provision. An offence is
defined in s 1 of the Act as ‘an act or omission
punishable by
law’ and is not confined to common law offences.
Counsel was unable to point to anything in the section or elsewhere
in the
CPA or in any material extraneous to the CPA that would
suggest that the power to sentence offenders, conferred by s 276(1),

should be confined to common law crimes. However, his argument
necessarily requires that we give a restrictive interpretation to
the
section to confine the scope of its operation to common law crimes.
[32] We were
referred to the opening words of s 276(1), that make its
provisions subject to the other provisions of the CPA
or any other
law. The first part of this provision is there to make it clear, for
example, that s 276(1) does not override
the power of a court,
in terms of s 297, to postpone the passing of sentence or to
discharge the person with a caution and
reprimand. The latter
subordinates the court’s general sentencing powers to specific
legislation dealing with offences. Thus,
a court is not entitled to
exercise its powers under s 276(1) to sentence to imprisonment a
person convicted of the offence
of contravening their licence in
terms of
s 74(1)
of the
Electronic Communications Act 36 of
2005
, in the face of the provisions of
s 74(2)
of the latter
Act, which state that the penalty for an offence under s 74(1)
is that the licensee must outsource the construction
or placing into
service of the relevant electronic communications facility or
electronic communications network to a third party.
Similarly the
provisions of s 276(2), upon which some reliance was also
placed, do not warrant the restrictive construction
of s 276(1)
for which counsel contended. The opening words also make it clear
that courts are bound to have regard to specific
penal provisions in
legislation. It does not follow that the absence of specific
statutory penal provisions renders the court’s
power to impose
the sentences provided for in s 276 nugatory. On the contrary it
is to those powers that courts must turn
in imposing sentence. This
has always been accepted in respect of common law crimes and there is
no reason to confine it to those
crimes.
[33]
Nor is there anything in the context of the statute to justify a
restrictive construction. Historically the section is derived
from
s 242 of the Criminal Procedure Code enacted in Ordinance 1 of
1903 of the Transvaal. However that section simply specified
the
range of permissible sentences and did not say that courts were
empowered to impose those sentences on offenders. Similarly
there
appears not to have been a provision in either of the Criminal
Procedure Ordinances
40
in
the Cape or the Criminal Procedure Ordinance 18 of 1845 (Natal)
specifically empowering courts to impose sentences on offenders.
When
the Criminal Procedure Act 31 of 1917 was passed it took the earlier
provision in the Transvaal Code as its basis but recast
the section
to say that the specified punishments ‘may be passed upon a
convicted offender’.
41
That
was done at a time when it was known that there were a number of
statutory offences on the statute books and the possibility
that the
legislation in which they were contained might lack a penalty
provision had arisen in some cases. The general language
used is only
consistent with its applying to both common law and statutory crimes.
The historical background is therefore inconsistent
with the
limitation of language for which counsel contended.
[34]
The next important contextual matter is the principle of legality and
the need for the power to impose punishment and the extent
of that
power to be contained in a law. Section 276(1) recognises and
embodies that principle in relation to common law crimes.
There seems
to be no reason why it should not also be taken to ensure that the
principle is recognised and complied with in relation
to any
statutory crimes where the legislature has, for whatever reason, not
incorporated a specific penalty provision in the statute
creating the
offence. An interpretation of the section in compliance with the
principle of legality is constitutionally mandated.
42
[35] It is also
helpful to examine whether the restrictive interpretation counsel
sought to place on the key words in s 276(1)
has a sensible
outcome. He accepted that they empower courts to impose sentences for
the offences of assault with intent to do
grievous bodily harm and
common assault, which are the alternative crimes of which Mr Prins
could have been charged and convicted
on precisely the same factual
allegations as the main offence under s 5(1) of the Act. This
raised the following conundrum.
Had the prosecutor included, in the
alternative to the main charge under s 5(1) of the Act, an
alternative charge of common
assault based on precisely the same
facts, no objection could have been made against that charge. The
reason is that the magistrate
would have been empowered by s 276(1)
to impose an appropriate sentence for that offence. Once that is
recognised the obvious
question is why should it be any different in
relation to the statutory offence? The absurdity of importing a
limitation into the
language of s 276(1), so that a charge based
on a particular set of facts will be unimpeachable if it is a charge
of a common
law crime, but invalid if it is based on a statute making
those facts a statutory crime, is apparent. It is even more apparent
when it is recognised that the statutory crime is in substance the
equivalent of the common law crime that it replaces. No reason
could
be suggested why the application of s 276(1) to the statutory
crime would place Mr Prins in a less advantageous position
than he
would have been in had he been charged on the same facts with the
crime of indecent assault. The statutory offence under
s 5(1)
mimics the common law offence of indecent assault. Thus the courts
will have a pattern of sentencing in past cases
to guide them in
fixing an appropriate sentence for the equivalent statutory offence.
[36]
Although it cannot affect the construction of s 276(1), we were
addressed on the reasons for the omission in the Act to
specify
penalties for the offences in chapters 2, 3 and 5. However, the
submissions fluctuated wildly, with parties commencing
by saying that
the omission was a mistake and, under probing questions from the
bench, ending by saying that it was deliberate.
All that this
demonstrates, as was said in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
,
supra,
43
is
that little purpose is served by speculation as to the intention of
Parliament.
44
We
simply do not know whether the omission of specific penalties in
relation to these offences or a general penalty clause covering
them,
whether the omission was deliberate or an oversight. What we do know
is that the legislation clearly anticipated that people
would be
charged with offences under the Act and, after conviction, would be
sentenced. In the absence of any provision in the
Act governing
penalty the necessary implication is that this was to be left to the
general discretion of the courts in terms of
their powers under
s 276(1).
[37]
In addition Parliament has, since the judgment of the high court was
delivered, met and passed an amending Bill,
45
that
expressly provides that the powers of courts in regard to sentence
for the offences in chapters 2, 3 and 4 of the Act are those

specified in s 276 of the CPA.
46
Whilst
this Bill still awaits the assent of the President it nonetheless
provides a clear example of subsequent legislation constituting
a
‘legislative declaration’ of the meaning parliament
wishes to have ascribed to earlier legislation.
47
Whilst
I do not suggest that this principle can be used to afford a meaning
to legislation that it is not otherwise capable of bearing
–
that would amount to retrospective legislation – it is
appropriate to invoke it in this case where the Act clearly
aimed at
creating offences and ensuring that the courts sentence those they
convicted of those offences. In addition the amending
Bill says that
its purpose is to provide expressly that the imposition of penalties
for certain offences in terms of the Act is
to be left to the
discretion of the courts. That accords with what I regard as the
necessary implication to be drawn from the language
of the Act
itself. Accordingly this is a proper case where the legislative
declaration coincides with the implications to be drawn
from the Act
itself.
[38] For all those
reasons the argument that s 276(1) must be construed as being a
provision empowering courts to impose sentences
in relation only to
common law crimes must be rejected. In my opinion it is a general
empowering provision authorising courts to
impose sentences in all
cases, whether at common law or under statute, where no other
provision governs the imposition of sentence.
I reject the argument
that the Act, in creating the offences set out in chapters 2, 3 and 4
thereof, infringed the principle of
legality by not prescribing the
penalties to be imposed for those offences. I also reject the
contention, unsupported by authority,
that a statutory offence can
only be created by parliament if it includes a penalty in the
enacting legislation. That may be a
requirement in countries where
the criminal law is codified, but that is not the position in South
Africa.
[39] It follows that
the decisions of the magistrate and the high court were wrong and
must be set aside. The order I make is as
follows:
1 The appeal is
upheld.
2 The order of the
high court is set aside and replaced by the following order:
‘
The
appeal succeeds and the order of the magistrate is altered to one
dismissing the objection to the charge.’
M J D WALLIS
JUDGE OF APPEAL
Appearances
For appellant: B E
Currie-Gamwo (with her B Hendry-Sidaki) from the office of the
National Director of Public Prosecutions
Instructed by:
State Attorney,
Bloemfontein
For respondent: P A
Botha (with him Y Isaacs)
Instructed by:
Cape Town Justice
Centre
Bloemfontein Justice
Centre
For intervening
party: M R Madlanga SC (with him V Ngalwana and N Nharmuravate).
Instructed by:
State Attorney,
Johannesburg and Bloemfontein.
For first
Amicus
Curiae
S Budlender
Instructed by:
Legal Resources
Centre, Cape Town
Locally represented
by:
UFS Law Clinic,
Bloemfontein.
For second
Amicus
Curiae
M Norton (with her S Cowen)
Instructed by:
Women’s Legal
Centre Trust
Locally represented
by:
Webbers,
Bloemfontein
1
The
principal ones to which we were referred by counsel for the first
amicus were the United Nations Convention on the Rights
of the Child
(Article 19) and the African Charter on the Rights and Welfare of
the Child (Article 16). Counsel for the second
amicus referred us
principally to articles 4 and 23 of the Protocol to the African
Charter on Human and Peoples’ Rights
on the Rights of Women in
Africa, Article 2 of the United Nations Convention on the
Elimination of All Forms of Discrimination
against Women and Article
4 of the Declaration on the Elimination of Violence against Women..
2
Particularly
ss 9, 10, 12(2), 28(1)(
d
)
and 28(2) of the Constitution.
3
Since
the Act came into operation, there have been over 12 000
convictions for offences under it, of which rape and sexual
assault
provide the bulk. There are some 297 pending cases involving
offences under the Act in courts across South Africa.
4
S
& another v Acting Regional Magistrate, Boksburg: Venter &
another
(CCT 109/10)
[2011] ZACC 22
;
2011 (2) SACR 274
(CC) para
23.
5
S
v Booi (14/2010)
[2010] ZAFSHC 91
(12 August 2010)
.
6
S
v Mchunu
(168/2011)
15 September 2011
7
S
v Rikhotso
(SS105/11) [2012] ZAGPJHC 106
.
8
Fedsure
Life Assurance Ltd v Greater Johannesburg Metropolitan Council
[1998] ZACC 17
;
1999
(1) SA 374
(CC) paras 56 to 59.
9
Fedsure
para 58.
10
S
v Malgas
2001 (2) SA 1222
(SCA) para 2.
11
Or
possibly earlier. See Aly Mokhtar ‘Nullum Crimen, Nulla Poena
Sine Lege: Aspects and Prospects’
(2005)
Statute Law Review
41
at 46-7.
12
Uttley,
R (on the application of) v Secretary of State for the Home
Department
[2004] UKHL 38
;
[2004] 4 All ER 1
(HL) para 39. The
incorporation of these provisions in the Declaration of the Rights
of Man is hardly surprising. The French
kings were absolute monarchs
and summary imprisonment and other forms of punishment were
commonplace. The defining moment of
the revolution was the storming
of the Bastille, a symbol of royal tyranny.
13
S
v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC) para 13.
14
Frederick
G Gardner and Charles W H Lansdown
South
African Criminal Law and Procedure
Vol
1 at 420.
15
Those
constituted under ss 3, 4 17, 23, 20(1) and 26(1) of the Act.
16
S
v Van Dyk
2005 (1) SACR 35
(SCA).
17
There
was a limited exception to this general rule in regard to the death
sentence. Until 1935 the death sentence was mandatory
for murder.
Under
s 277(1)
of the
Criminal Procedure Act 51 of 1977
the death
sentence was mandatory for the crime of murder without extenuating
circumstances until this provision was struck down
by the
Constitutional Court in
S v Makwanyane & another
[1995] ZACC 3
;
1995 (3)
SA 391
(CC). There were a number of notorious statutory offences for
which minimum sentences were prescribed.
18
This
section originally provided for sentences of six months and three
years imprisonment respectively. That was changed in 1977
(Act 91 of
1977) to 12 months and ten years and in 1998 (Act 66 of 1998) to its
present limits.
19
This
was dealt with by this court in
S v Malgas
supra and that
judgment was endorsed by the Constitutional Court in
S v Dodo
supra.
20
Section
52
of Act 105 of 1997.
21
I
Lionel Swift and A B Harcourt QC
The South African Law of
Criminal Procedure
(1
st
ed, 1957) at 479.
22
The
long title to the Act says
inter alia
that it repeals the
offence of indecent assault and replaces it with the offence of
sexual assault.
23
R
v Forlee
1917 TPD 52
and the cases cited in paras 40 and 41 of
the judgment of Blignault J in the high court.
24
C
Snyman
Criminal Law
5 ed 41. This passage, appearing in the
third edition, was cited by Ackermann J in
S v Francis
1994
(1) SACR 350
(C) at 355d-h, with apparent approval. See also Milton
and Cowling
South African Criminal Law and Procedure
Volume
III Statutory Offences 2 nd edition para 1-20; M A Rabie and M C
Maré
Rabie and Strauss Punishment: An Introduction to
Principles
(4 ed) 81-82.
25
R
v Zinn
1946 AD 346.
26
At
355.
27
J
C de Wet and H L Swanepoel,
Strafreg
4 ed 46-47; C Snyman
Criminal Law
5 ed 41-42;
S v Francis
supra at 355d-h.
28
The
language of the sections must always be read in the light of the
context.
Natal Joint Municipal Pension
Fund v Endumeni Municipality
[2012] 2
All SA 262
(SCA) paras 18 and 24. Here language and context
converge.
29
Section
66(2)(
a
)(viii).
30
Section
49(
b
)(iv).
If the conviction and sentence took place in a foreign country the
equivalent information must be included (s 49
(c)
).
31
Section
50(1)(
a
)(iii)
read with s 50(2)(
a
)(i).
See also s 55.
32
Thint
(Pty) Ltd v National Director of Public Prosecutions
&
others: Zuma & another v National Director of Public
Prosecutions
& others
2009
(1) SA 1
(CC) para 65.
33
Section
84(1) of the CPA. Insofar as the judgment in
S v Rautenbach
1991
(2) SA 700
(T) at 701j-702a suggests that the penalty is an
essential part of a statutory criminal offence that statement was
obiter
and is incorrect.
34
S
v Ndlovu
1999 (2) SACR 645
(W) at 649f-i
35
S
v Badenhorst
1991 (1) SACR 623
(T).
36
Section
261 (
a
) and (
b
) of the CPA.
37
E
du Toit, F J de Jager, A Paizes, A St Q Skeen and S van der Merwe
Commentary on the
Criminal Procedure
Act
(loose-leaf
) p28-9 (Service 47,
2011).
38
S
v Van Dyk
fn 16 above, para 10.
39
Para
2.
40
Ordinance
40 of 1828 and Ordinance 73 of 1830.
41
The
1917 Act was passed a few months after the decision in
R
v Forlee
supra.
42
Section
39(2) of the Constitution.
43
Para
20.
44
Significantly
the Minister did not say in the affidavit in support of his
application to intervene why the Act did not contain
any penalty
provisions in respect of these offences. As he chose not to tell us
why this had happened I do not think it appropriate
for us to
speculate on the reasons.
45
Criminal
Law (Sexual Offences and Related Matters) Amendment Act 2012
(B19/2012).
46
It
inserts the following section in the Act:
56A
(1)
A court shall, if—
(a)
that
or another court has convicted a person of an offence in terms of
this Act; and
(b)
a
penalty is not prescribed in respect of that offence in terms of
this Act or by any other Act, impose a sentence, as provided
for in
section 276 of the Criminal Procedure Act, 1977 (Act No. 51 of
1977), which that court considers appropriate and which
is within
that court’s penal jurisdiction.
(2) If a person is
convicted of any offence under this Act, the court that imposes the
sentence shall consider as an aggravating
factor the fact that the
person—
(a)
committed
the offence with the intent to gain financially, or receive any
favour, benefit, reward, compensation or any other advantage;
or
(b)
gained
financially, or received any favour, benefit, reward, compensation
or any other advantage, from the commission of such
offence.’
47
Patel
v Minister of the Interior & others
1955
(2) SA 485
(A) at 493A-D;
National
Education Health and Allied Workers Union v University of Cape Town
2003 (3) SA 1
(CC) para 66.