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[2010] ZAFSHC 177
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S v Booi (2012 (2) SACR 52 (FB)) [2010] ZAFSHC 177; [2010] ZAFSHC 91 (12 August 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 14/2010
In
the review between:-
THE
STATE
versus
JOSEPH
BOOI
CORAM:
HANCKE,
AJP
et
CILLIé, J
_____________________________________________________
JUDGMENT
BY:
CILLIé, J
_____________________________________________________
DELIVERED
ON:
12 AUGUST 2010
_____________________________________________________
JUDGMENT
[1] The accused in this
matter was convicted of a contravention of section 15 of Act 32 of
2007 Criminal Law (Sexual Offences and
Related Matters) Amendment Act
in the Regional Court and sentenced to nine (9) years imprisonment.
The Regional Court President
sent the matter on review with the
following remark:
“
The Magistrate informs me that
she imposed the sentence of Nine (09) years imprisonment under the
mistaken belief that the offence
was one that fell within the ambit
of the minimum sentences act (Act 105 of 1997). She has subsequently
realized that this is
not so and has informed me that had it not been
for the mistaken belief that the Minimum Sentence Act (Act 105 of
1997) applied
she would have imposed a lesser sentence.
Kindly have the matter placed before a
reviewing Judge to have the sentence set aside and the matter
remitted to the Magistrate
to consider sentence afresh.”
He requests that the
sentence be set aside and the matter be remitted to the trial
magistrate to impose sentence afresh.
[2] When the matter came
before me on review, the fact that Act 32 of 2007, although declaring
conduct of the nature set out in
section 15 an offence, does not
provide for any penalty for a contravention of that offence, caused
me to direct the following
enquiry to the Office of The Director of
Public Prosecutions: Free State:
“
The accused was ultimately
convicted of contravening section 15 of Act 32 of 2007 i.e.
consensual sexual penetration with a child.
However I fail to find any penalty
clause for this contravention in the act.
Can you help? And if there is no
penalty provided in the Act for this offence what’s the result
there-of?
Your comments would be appreciated.”
I am indebted to Mr.
Chalale of that office for the very helpful response received from
him.
[3] The question is
whether the absence of a penalty clause renders the criminalization
clause (section 15) ineffective on the basis
of the maxim
nulla
poena sine lege
. This
maxim
requires that in
criminalizing conduct the legislature should specify the penalty for
that offence.
Milton and Cowling in
the well-known work
SA Criminal Law and Procedure
, 2
nd
Edition, Vol. 3 (Statutory Offences) par. 1 – 20 however points
out that:
“
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.”
See also Snyman:
Criminal Law
, 5
th
Edition, p. 48;
Jonathan Burchell:
Principles of Criminal Law
, 3
rd
Edition, p. 99.
The authority relied on
by the learned authors put it beyond doubt that:
“
Where the act is definitely
prohibited in a manner which renders it clear that the legislature
was not exhorting or advising, then
it is punishable at the
discretion of the judge where the law has not itself attached any
penalty.”
See
REX
v FORLEE
1917 TPD 52.
[4] It is to be
emphasised that the position set out above is not to be equated to a
failure by the legislature to criminalize conduct.
It is generally
accepted that if the legislature intends to criminalize conduct, it
must say so in express words – but creating
crimes without
declaring that the act specified is in itself an offence, by
providing that such act shall entail particular punishment,
is in
order. See
REX v FREDERIKS
1923 TPD 350
at 353.
[5] It is of some
importance to note that section 15 of Act 32 of 2007 replaces with
minor amendments section 14 of Act 23 of 1957
(it broadened the
offence to be gender non-specific). Act 23 of 1957 does in fact
provide for a penalty for such conduct. The
legislature clearly
characterised the conduct set out in section 15 of the new Act as a
criminal offence worthy of punishment and
it would fly in the face of
all common sense to conclude that the absence of a penal provision in
the Act, should be interpreted
as that no valid offence has been
created by the new Act.
[6] It therefore follows
that the sentence for the offence of which the accused was convicted,
falls within the discretion of the
magistrate. As pointed out
supra
the magistrate laboured under the misapprehension that a minimum
penalty is prescribed. The request that the sentence imposed
be set
aside and the matter remitted to the magistrate to impose sentence
afresh, must therefore be acceded to. However, in considering
an
appropriate sentence the magistrate may very well heed the following
remarks of Mr. Hiemstra, Deputy Director of Public Prosecutions:
Free
State, which accompanied the response of Mr. Chalale:
“
Although we were not asked to
comment specifically on what an appropriate sentence might be, I may
add that the maximum sentence
provided for in Section 22(f) of Act 23
of 1957 would still serve as a useful guide as to what the legislator
viewed as an appropriate
sentence for the worst kind scenario for
this particular offence. It should also be borne in mind that the
offence is an ‘artificial’
one imposed on youthful
persons by their supreme guardian, aimed at their protection despite
the fact that there was consensual
intercourse. The ‘victim’
in these matters is always a
willing partner
and is
rarely if ever the complainant. This places the issue of sentence
immediately in an entirely different category than those
reserved for
sexual offences in which the complainant was an
unwilling
victim
. There is nothing in the record to suggest that the
instant matter is one which deserves the maximum sentence. The
magistrate’s
judgment is unfortunately unhelpful in that,
although it finds in favour of the accused that intercourse was
consensual, no clear
findings of fact are made. It must be assumed
that the main points of the accused’s version have been
accepted, which would
include a measure of initiative taken by the
complainant, as well as a fair degree of intoxication of both
complainant and accused.
On those assumptions a sentence of 3 years
imprisonment of which a portion may be suspended would appear to be
indicated.”
I agree herewith.
The following order is
made:
The sentence imposed by
the magistrate is set aside and the matter is remitted to the
magistrate to impose sentence afresh.
____________
C.B. CILLIé, J
I agree.
__________________
S.P.B. HANCKE, AJP
/sp