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South Africa decisions
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S v Adams; S v Molejane (62/2013, 63/2013) [2013] ZAFSHC 43 (4 April 2013)
The High Court set aside convictions under a repealed statute, holding that offences committed after repeal had to be charged under the new Children’s Act.
S v Williams (C512/11) [2012] ZAWCHC 246 (21 December 2012)
The accused was convicted and sentenced under section 117 of the Correctional Services Act for escaping from a place of safety. However, section 117, as read with section 1 of the Act, applies only to persons detained in prison, not those remanded to a place of safety under the Child Justice Act. The statutory provision does not create an offence for escaping from a place of safety, and courts lack the authority to create new crimes or penalties. Convicting and sentencing the accused under these circumstances violates the principle of legality and the constitutional right to a fair trial, as…
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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)
The Supreme Court of Appeal held that the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 clearly creates criminal offences in its relevant sections, and the absence of an express penalty provision does not render those offences unenforceable. Section 276(1) of the Criminal Procedure Act 51 of 1977 provides a general empowering provision authorising courts to impose sentences for both common law and statutory offences where no specific penalty is prescribed. The principle of legality is satisfied by this statutory framework. The charge sheet need not specify the pe…
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Director of Public Prosecutions, Western Cape v Prins (A134/08) [2012] ZAWCHC 42; 2012 (2) SACR 67 (WCC); [2012] 3 All SA 138 (WCC) (11 May 2012)
The court held that section 5(1) of the Sexual Offences Act does not create a punishable offence in the absence of a penalty clause. The nulla poena sine lege principle, which is an essential element of the doctrine of legality in criminal law, precludes punishment unless a penalty is prescribed by law. The omission of a penalty clause in section 5(1) was not a mere oversight but part of a pattern in the Act, and there is no certainty as to the legislature's intention. The court rejected the argument that punishment could be left to judicial discretion, finding that such an approach would und…
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S v Mchunu (CC 168/2011) [2011] ZAKZDHC 89 (16 September 2011)
The court held that sexual offences created by the 2007 Act remain punishable even without express penalty clauses, and convicted the accused on all counts.
S v Booi (2012 (2) SACR 52 (FB)) [2010] ZAFSHC 177; [2010] ZAFSHC 91 (12 August 2010)
The court held that the absence of a penalty clause in section 15 of Act 32 of 2007 does not render the offence invalid. The determination of an appropriate sentence is left to the discretion of the magistrate. The magistrate erred in applying the Minimum Sentences Act, which does not cover the offence in question. The sentence imposed was based on a mistaken belief and must be set aside. The matter is remitted to the magistrate to impose sentence afresh, with guidance that the maximum sentence under section 22(f) of Act 23 of 1957 may serve as a benchmark, and the facts suggest a lesser sent…
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