WMACA as members of the Shukumisa Campaign endorses the following press release by:
Lawyers against Abuse/ Women’s Legal Centre
We strongly condemn the judgment of 11 May 2012 in the Western Cape High Court, which has the implication that a number of crimes in the Sexual Offences Act do not disclose offences.
It is of paramount importance that the operation of this judgment be suspended. The Sexual Offences Act is a key element of protection for victims of sexual violence, and a leading example of such legislation on a global scale. To prevent the operation of these offences, including the very serious crimes of; sexual assault, compelled sexual assault, compelling children to witness sexual acts, exposing children to pornography, sexual grooming of children, and certain sexual offences against mentally disabled people; is unlawful, potentially catastrophic, and in violation of a number of constitutional rights.
1) We believe that the court erred in its interpretation of the principle of legal certainty. The fact that the Act does not contain specific penalty clauses is not fatal to the individual offences. This is supported by the principles of statutory interpretation, a contextual reading of the authorities and the general provisions in the Act dealing with factors to be considered by a court when passing sentence. These all clearly point to an intention of the legislature that a court would always be able to hand down sentence. In fact, the High Court in Kwa Zulu Natal came to the opposite conclusion to the Western Cape High Court.
2) Gender-based violence and the abuse of women and children is rife in South Africa. To prevent the operation of the Sexual Offences Act on the range of crimes specified is to leave victims without the protection of the law at the time when they most need it. Furthermore, the judgment could operate to allow convicted and dangerous perpetrators to be released from jail, putting others at risk.
3) This judgment has an impact on a range of constitutional rights, including the rights of children (which the Constitution states are paramount), the right to be free from violence, the right to dignity and freedom and security of the person, and the right to access to justice.
We have called on the legislature to remedy the perceived loopholes in the Act as a matter of urgency. We furthermore support the Shukumisa campaign’s call for increased participation for civil society in this process.