Race to fix sex law flaws - Independent Online

Race to fix sex law flaws - Independent Online

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Members of Parliament are ramming through repairs to the Sexual Offences Act, closing holes in it as fast as they can to prevent sex offenders slipping justice.

Parliament’s justice committee is allowing only five days for written public comment on its four-page amendment to the law.

Stressing the urgency of it, committee chairman Luwellyn Landers MP ruled out hearings on the changes.

The race to fix the Sexual Offences Act of 2007 started after a High Court ruling that declared several sexual offences to be unpunishable because lawmakers had failed to specify penalties for them in the law.

A full Bench of the Western Cape High Court upheld an earlier judgment of the Riversdale Regional Court on May 11, which had dismissed a criminal complaint against a man on the grounds that “the charge against the respondent did not disclose an offence”.

He had been charged with sexual assault for “touching the breasts and private parts of the complainant without her consent”. But the judges found that one of the elements of a crime – that an offence be coupled with a penalty – had not been specified in 29 offences defined in the act.

The affected offences include sexual assault, compelled sexual assault, sexual exploitation and the sexual grooming of children, but not the crime of rape, for which specific penalties are prescribed in another law.

Now the justice committee has invited written submissions, setting Monday as the closing date. While the committee would not hold hearings, “serious consideration” would be given the written submissions, Landers said.

The committee’s proposed amendment bill can be viewed at www.iol.co.za and written submissions can be e-mailed to Landers at llanders@parliament.gov.za or committee secretary, Vhonani Ramaano, at vramaano@parliament.gov.za.

Ramaano can also be telephoned at 021 403 3820.

The committee’s move is part of a two-pronged response to the legislative crisis, which has raised the spectre of a flood of appeals by people convicted – or in the process of being tried – of the affected offences since the law came into force in December 2009.

In a letter to Justice Minister Jeff Radebe last week, Landers warned of the possibility “that persons who have already been convicted of any of these 29 offences… may now flood our courts with applications for their convictions to be set aside”.

“Clearly, the (judgment) requires corrective action. Whilst there is no intention for panic, you must agree that a legislative amendment is necessary,” Landers wrote.

The other prong involves the Western Cape director of public prosecutions lodging an appeal against the judgment on Friday. It is hoped that with such an appeal pending, other courts would be unlikely to strike down similar cases on the strength of the high court judgment.

National Prosecuting Authority (NPA) spokesman, advocate Mthunzi Mhaga, has since explained that while cases in other provinces would not be affected, people in the Western Cape facing charges relating to the affected offences – and who had yet to plead – would have charges against them withdrawn for the time being. But cases in other provinces would continue, he stressed.

And while some gender activists vented their anger at the “bizarre judgment” and warned that it was a “devastating blow to the fight against sexual crimes”, others have criticised MPs for passing the flawed law in the first place.

Critics of the judgment have pointed out that in, at least, two other cases dealing with similar issues – one in the Free State, the other in KwaZulu-Natal – judges came to the opposite conclusion. In those cases, the judges ruled that in the absence of specified penalties, it was up to the courts to hand out the appropriate punishment.

The committee’s proposed amendments would close the loopholes by simply inserting the word “offence” where appropriate. The draft would also change the principal act – the Criminal Law Amendment Act – to explicitly state that, in the absence of specified penalties, “a court may impose a sentence which it considers appropriate and which is within the penal jurisdiction of that court”.

ANC MP and committee member, John Jeffery, described the High Court judgment last week as an example of “the law being an ass”.

His DA counterpart, Debbie Schafer, this week shifted the blame to the NPA. She said the NPA had been aware of the problem as early as 2010 and that its failure to bring this to Parliament’s attention “shows either gross incompetence or wilful obstruction of action against sexual offenders”.

“If the NPA had acted to remedy the potential defect as soon as it came to their attention, two years of uncertain convictions could have been avoided,” Schafer said.

Source: www.iol.co.za