S v Rikhotso (SS105/11) [2012] ZAGPJHC 106 (15 May 2012)

S v Rikhotso (SS105/11) [2012] ZAGPJHC 106 (15 May 2012)

The court held that section 5 of the Sexual Offences and Related Matters Act does create a punishable offence, as the Act contemplates sentencing upon conviction for any offence under its provisions. The absence of a specific penalty clause does not negate the existence of an offence, as the concept of 'sentence' inherently includes punishment, which is regulated by the Criminal Procedure Act. The court rejected the reasoning in the Prins judgment, finding it erroneous for failing to consider section 56(7) of the Act. Furthermore, even if section 5 did not create a new offence, the common law offence of indecent assault would not be repealed, and the accused could still be convicted on...

Citation
[2012] ZAGPJHC 106
Parties
Applicant: THE STATE; Defendant: Jazzman Rikhotso
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 May 2012
Case Number
SS105/11
Procedural Posture
Criminal Trial / Conviction and Acquittal
Outcome
The accused is acquitted on counts 10, 12, 28, 30, 36, 38 and 49, and convicted on all remaining counts.
Judges
C.G. Lamont
Legal Topics
Sexual Offences and Related Matters Act, Rape, Indecent Assault, Charge Sheet Defects, Competent Verdicts, Criminal Procedure Act
Criminal Law Civil Procedure Sexual Offences and Related Matters Act Rape Indecent Assault Charge Sheet Defects Competent Verdicts Criminal Procedure Act

Case Brief

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Parties

THE STATE

Applicant

Jazzman Rikhotso

Defendant

Procedural Posture

Criminal Trial / Conviction and Acquittal

Legal Issues

  1. 1 Whether section 5 of the Sexual Offences and Related Matters Act creates a punishable offence.
  2. 2 Whether the accused can be convicted for sexual violation under section 5 or only for rape under section 3.
  3. 3 Whether the repeal of common law offences by section 68 of the Act is effective if no new offence is created.

Ratio Decidendi

The court held that section 5 of the Sexual Offences and Related Matters Act does create a punishable offence, as the Act contemplates sentencing upon conviction for any offence under its provisions. The absence of a specific penalty clause does not negate the existence of an offence, as the concept of 'sentence' inherently includes punishment, which is regulated by the Criminal Procedure Act. The court rejected the reasoning in the Prins judgment, finding it erroneous for failing to consider section 56(7) of the Act. Furthermore, even if section 5 did not create a new offence, the common law offence of indecent assault would not be repealed, and the accused could still be convicted on...

Court Disposition

The accused is acquitted on counts 10, 12, 28, 30, 36, 38 and 49, and convicted on all remaining counts.

Orders

  • The accused is acquitted on counts 10, 12, 28, 30, 36, 38 and 49.
  • The accused is convicted on counts 1 to 9, 11, 13 to 27, 29, 31 to 35, 37, 39 to 48, 50 to 58.