REPORTABLE

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 369/12

In the matter between:

DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN CAPE

Appellant
and
ARNOLD PRINS

Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
Intervening Party
CENTRE FOR CHILD LAW

First Amicus Curiae
WOMEN’S LEGAL CENTRE TRUST
Second Amicus Curiae

Neutral citation: DPP v Prins (Minister of Justice and Constitutional
Development & two amici curiae intervening)
(369/12) [2012] 106 ZASCA (15 June 2012)
Coram:
MPATI P, NAVSA, BRAND, MALAN and WALLIS JJA.
Heard:
13 June 2012
Delivered: 15 June 2012

Summary: Criminal law – s 5(1) of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007 – failure to specify in
same statute penalty on conviction – in light of the provisions of s 276 of
the Criminal Procedure Act 51 of 1977 does failure mean that the section
does not create a criminal offence – application of maxim nulla poena
sine lege and principle of legality.

ORDER

On appeal from: Western Cape High Court (per Blignault J, Fortuin J
and Mantame AJ concurring, sitting on appeal from a regional
magistrate):
The appeal is upheld.
The order of the high court is set aside and replaced by the
following order:
‗The appeal succeeds and the order of the magistrate is altered to one
dismissing the objection to the charge.‘

JUDGMENT

WALLIS JA (MPATI P and NAVSA, BRAND and MALAN JJA
concurring)

[1] No judicial officer sitting in South Africa today is unaware of the
extent of sexual violence in this country and the way in which it deprives
so many women and children of their right to dignity and bodily integrity
and, in the case of children, the right to be children; to grow up in
innocence and, as they grow older, to awaken to the maturity and joy of
full humanity. The rights to dignity and bodily integrity are fundamental
to our humanity and should be respected for that reason alone. It is a sad
reflection on our world, and societies such as our own, that women and
children have been abused and that such abuse continues, so that their

rights require legal protection by way of international conventions1 and
domestic laws, as South Africa has done in various provisions of our
Constitution2 and in the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (the Act). It was rightly stressed in
argument, in the light of evidence tendered and admitted in this appeal,
that the Act is a vitally important tool in the ongoing fight against this
scourge in our society.3 The issue in this appeal is whether, as the high
court held, the Act is fatally flawed in consequence of the legislature not
having expressly specified the penalties attracted by the commission of
the offences set out in chapters 2, 3 and 4 thereof.

[2] It is unnecessary to spell out in great detail the consequences of the
high court‘s judgment on the protection of victims of sexual violence.
There are many judgments in which our courts have emphasised the need
for the rights of vulnerable people, in particular women and children, to
be respected and protected. One of the ways in which that needs to be
done is by the effective prosecution of those who infringe those rights. In
S & another v Acting Regional Magistrate, Boksburg: Venter & another,4
Mthiyane AJ, speaking of s 69 of the Act, said:
‗Our Constitution sets its face firmly against all violence, and in particular sexual
violence against vulnerable children, women and men. Given this, and the Act‘s
emphasis on dignity, protection against violence against the person, and in particular

1 The principal ones to which we were referred by counsel for the first amicus were the United Nations
Convention on the Rights of the Child (Article 19) and the African Charter on the Rights and Welfare
of the Child (Article 16). Counsel for the second amicus referred us principally to articles 4 and 23 of
the Protocol to the African Charter on Human and Peoples‘ Rights on the Rights of Women in Africa,
Article 2 of the United Nations Convention on the Elimination of All Forms of Discrimination against
Women and Article 4 of the Declaration on the Elimination of Violence against Women..
2 Particularly ss 9, 10, 12(2), 28(1)(d) and 28(2) of the Constitution.
3 Since the Act came into operation, there have been over 12 000 convictions for offences under it, of
which rape and sexual assault provide the bulk. There are some 297 pending cases involving offences
under the Act in courts across South Africa.
4 S & another v Acting Regional Magistrate, Boksburg: Venter & another (CCT 109/10) [2011] ZACC
22; 2011 (2) SACR 274 (CC) para 23.

the protection of women and children, it is inconceivable that the provision could
exonerate and immunise from prosecution acts that violated these interests.‘
If the judgment of the high court in this case is correct, then its
consequence is to ‗exonerate and immunise from prosecution acts that
violate‘ the interests of vulnerable children, women and men who have
been subjected to sexual abuse. In order to determine whether that is so it
is necessary to set out the circumstances in which the issue arises.

Background to the appeal
[3] Mr Arnold Prins was charged, before the regional court at
Riversdale, with contravening s 5(1) of the Act in that he sexually
assaulted the complainant by touching her breasts and private parts
without her consent. Prior to his being called upon to plead, he objected
to the charge sheet in terms of s 85 of the Criminal Procedure Act 51 of
1977. His objection was based on the fact that neither s 5(1) itself, nor
any other provision of the Act, provides for a penalty for the offence
created by s 5(1). The magistrate upheld the objection, apparently on the
basis that the absence of a penalty infringed Mr Prins‘ fair trial rights in
terms of the Constitution, although his reasons are not entirely clear. The
Director of Public Prosecutions, Western Cape appealed to the Western
Cape High Court against that decision. That court (per Blignault J,
Fortuin J and Mantame AJ concurring), concluded that, in the absence of
a penalty in the Act, the charge failed to disclose an offence and
dismissed the appeal. This further appeal is with the leave of the high
court.

[4] The appeal has been heard urgently by this court in view of its
implications for all prosecutions arising under the various provisions of
the Act. None of the 24 sections describing sexual offences in chapters 2,

3 and 4 of the Act prescribes a penalty, nor does the Act contain a general
penalty clause. Accordingly, if the judgment of the court below is correct,
the Act will be rendered largely ineffective, because, in terms of that
judgment, the absence of specified penalties means that it will have failed
in one of its purposes, that of creating criminal offences. That has serious
implications for the ability to prosecute those who have committed sexual
offences since the Act came into operation on 16 December 2007 and
have not yet been prosecuted. They could at most be prosecuted for lesser
common law offences and perhaps not prosecuted at all. It could also
potentially affect the validity of convictions and sentences under the Act
since that date. All this was spelled out in an affidavit by the appellant
that was admitted by consent at the commencement of the appeal. The
statistics provided by the South African Police Service to the Women‘s
Legal Centre, and referred to in footnote 3, show the potential scale of the
problem.

[5] The judgment by the Western Cape High Court is in conflict with
three other judgments, one in the Free State,5 one in KwaZulu-Natal,6 and
one in South Gauteng,7 and it is imperative that there be clarity. The
Minister of Justice and Constitutional Development, under whose
portfolio this legislation falls, was granted leave at the outset of the
hearing to intervene and advance contentions in support of the validity of
the legislation. The Centre for Child Law and the Women‘s Legal Centre
Trust applied to be admitted as amici curiae and those applications were
also granted. They too contended that the legislation was effective to
enable the prosecution of the various offences provided therein. Their

5 S v Booi (14/2010) [2010] ZAFSHC 91 (12 August 2010).
6 S v Mchunu (168/2011) 15 September 2011
7 S v Rikhotso (SS105/11) [2012] ZAGPJHC 106.

arguments were largely based on a desire to ensure that the court gives
due weight to the constitutional rights of women and children.

The principle of legality
[6] I have already outlined the importance of this case from the
perspective of the right of all people, but in particular women and
children, who are the most vulnerable and the most affected, to be
protected against sexual violence. But that alone cannot be decisive of
this appeal. The reason is that the decision by the high court flows from a
constitutional principle that is equally fundamental, namely the principle
of legality.8 The power of the state to prosecute people and the power of
courts to try, convict and sentence offenders are public powers of the
greatest importance. In the history of the struggle for basic human rights
the abuse of the criminal process by governments to suppress dissent and
stifle the views of those opposed to the regime in power is notorious. One
can trace this in the history of many countries, but our own experience
suffices to underline the fact that abuse of power, including abuse of the
criminal process, lies at the heart of tyranny and oppression. In the light
of that history our Constitution demands that the ‗Legislature and
Executive in every sphere are constrained by the principle that they may
exercise no power and perform no function beyond that conferred upon
them by law‘.9 The courts, as the guardians of the Constitution, are
likewise constrained. Accordingly, it is essential to ensure that the
powerful feelings of disgust that sexual assault and sexual abuse arouse
do not overwhelm the need for the State, in the form of the prosecuting
authority in this case, to satisfy us that it would be lawful for a court
trying Mr Prins, not only to convict him, but also to sentence him in a

8 Fedsure Life Assurance Ltd v Greater Johannesburg Metropolitan Council 1999 (1) SA 374 (CC)
paras 56 to 59.
9 Fedsure para 58.

lawful manner. Just as we cannot invent new punishments,10 so also we
cannot invent a power to impose a punishment if none exists.

[7] Both the magistrate and the court below founded their judgments
on the principles encapsulated in the maxims nullum crimen sine lege (no
crime without a law) and nulla poena sine lege (no punishment without a
law). These maxims can be traced back to the French Revolution11 and
the provision in Articles 7 and 8 of the Declaration of the Rights of Man
and of the Citizen of 26 August 1789, which in translation read:
‗7
No person shall be accused, arrested, or imprisoned except in the cases and
according to the forms prescribed by law …
The law must prescribe only the punishments that are strictly and evidently
necessary, and no one may be punished except by virtue of a law drawn up and
promulgated before the offence is committed, and legally applied.‘12
The principles embodied in these maxims have subsequently been
embodied in a number of human rights instruments. They are part of our
law and are contained in ss 35(3)(l) and (n) of the Constitution, which
read as follows:
‗(3) Every accused person has a right to a fair trial, which includes the right—
(l)
not to be convicted for an act or omission that was not an offence under either
national or international law at the time it was committed or omitted;
(m)
…
(n)
to the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence has been changed between the time that the
offence was committed and the time of sentencing.‘

10 S v Malgas 2001 (2) SA 1222 (SCA) para 2.
11 Or possibly earlier. See Aly Mokhtar ‗Nullum Crimen, Nulla Poena Sine Lege: Aspects and
Prospects‘ (2005) Statute Law Review 41 at 46-7.
12 Uttley, R (on the application of) v Secretary of State for the Home Department [2004] UKHL 38;
[2004] 4 All ER 1 (HL) para 39. The incorporation of these provisions in the Declaration of the Rights
of Man is hardly surprising. The French kings were absolute monarchs and summary imprisonment and
other forms of punishment were commonplace. The defining moment of the revolution was the
storming of the Bastille, a symbol of royal tyranny.

[8] The two maxims are, within their respective spheres, reflections of
the principle of legality. In S v Dodo,13Ackermann J summed up their
effect, insofar as the imposition of sentences for crimes is concerned, as
follows:
‗[T]he nature and range of any punishment, whether determinate or indeterminate, has
to be founded in the common or statute law; the principle of legality nulla poena sine
lege requires this.‘
In other words the imposition of a sentence by a court must have its
justification in either the common law or statute. In the absence of a
provision that empowers the court to impose a sentence it is powerless to
do so. This is not a new principle created by the Constitution. As long ago
as 1924 the authors of the leading textbook on criminal law and
procedure14 wrote:
‗The punishment to be inflicted for an offence must be of the nature and extent
authorised by law.‘

[9] The issue in the present case is whether our courts have power to
impose a sentence for offences under the Act. That question is
complicated by the fact that certain of those offences15 are specifically
referred to in Schedule 2 to Criminal Law Amendment Act 105 of 1997
(the minimum sentencing legislation). The court below thought that this
resolved any problem related to those offences, but it is unclear whether
that is correct, as the legislation merely provides for a minimum sentence,
not a general power to impose a sentence for these offences. However,
whatever the position in those cases, the offence constituted by s 5(1) of
the Act and the bulk of the offences in chapters 2, 3 and 4 of the Act are
not affected by the minimum sentencing legislation and raise in

13 S v Dodo 2001 (3) SA 382 (CC) para 13.
14 Frederick G Gardner and Charles W H Lansdown South African Criminal Law and Procedure Vol 1
at  420.
15 Those constituted under ss 3, 4 17, 23, 20(1) and 26(1) of the Act.

unadulterated form the fundamental question of whether the courts have
any power to sentence offenders for these offences.

The courts‘ sentencing powers
[10] Conduct is criminal either under the common law or by statute. In
the latter case it is usual for the legislature both to define the criminal
conduct and to specify the penalty or range of penalties that may be
imposed by courts trying the statutory offence. Where that occurs the
powers of the court in regard to sentence are, generally speaking, clear,
although problems can arise.16 In the case of common law crimes the
position is different, because it has never been the practice for parliament,
as the only legislative body having power to deal with this question, to
prescribe the sentences that courts may impose for such crimes. In such
cases courts imposed sentence in the exercise of a judicial discretion
within the limits of their jurisdiction. I will first examine the nature and
extent of that discretion.

[11] The jurisdiction of the high courts in regard to sentence for
common law offences was in general not circumscribed by statute.17 In
regard to magistrates‘ courts, where most criminal cases were prosecuted,
the constraints within which the courts operated in imposing sentences on
offenders were laid down in the statute prescribing the scope of their
jurisdiction and their general powers. The relevant provision has for
many years been s 92 of the Magistrates‘ Courts Act 32 of 1944. That
now reads:

16 S v Van Dyk 2005 (1) SACR 35 (SCA).
17 There was a limited exception to this general rule in regard to the death sentence. Until 1935 the
death sentence was mandatory for murder. Under s 277(1) of the Criminal Procedure Act 51 of 1977
the death sentence was mandatory for the crime of murder without extenuating circumstances until this
provision was struck down by the Constitutional Court in S v Makwanyane & another 1995 (3) SA 391
(CC). There were a number of notorious statutory offences for which minimum sentences were
prescribed.

‗Limits of jurisdiction in the matter of punishments.—
(1)
Save as otherwise in this Act or in any other law specially provided, the court,
whenever it may punish a person for an offence—
(a)
by imprisonment, may impose a sentence of imprisonment for a period not
exceeding three years, where the court is not the court of a regional division, or not
exceeding 15 years, where the court is the court of a regional division;18
(b)
by fine, may impose a fine not exceeding the amount determined by the
Minister from time to time by notice in the Gazette for the respective courts referred
to in paragraph (a);
(c)
…
(d)
by correctional supervision, may impose correctional supervision for a period
as contemplated in section 276A (1) (b) of the Criminal Procedure Act, 1977 (Act No.
51 of 1977).‘

[12] The general powers of both the high courts and the magistrates‘
courts in relation to sentence were affected, in respect of certain common
law crimes, by the provisions of the minimum sentencing legislation,
which introduced requirements for the imposition of minimum sentences
in relation to the offences described in Schedule 2 to that Act, most of
which were common law offences. Courts were empowered to impose
sentences less than the prescribed minimum sentences where there were
substantial and compelling circumstances justifying the imposition of a
lesser sentence and in some other limited circumstances.19 In its initial
form the legislation did not alter the jurisdiction of regional magistrates‘
courts. Instead they were enjoined, in cases where they were satisfied that
a sentence greater than any falling within that court‘s jurisdiction should
be imposed for a scheduled offence, to refer the case to the high court for

18 This section originally provided for sentences of six months and three years imprisonment
respectively. That was changed in 1977 (Act 91 of 1977) to 12 months and ten years and in 1998 (Act
66 of 1998) to its present limits.
19 This was dealt with by this court in S v Malgas supra and that judgment was endorsed by the
Constitutional Court in S v Dodo supra.

the purpose of sentencing.20  That has since been altered to extend the
sentencing powers of the regional court in relation to the scheduled
offences, whilst conferring an automatic right of appeal on a person
convicted and sentenced on this basis.

[13] Within these general constraints our courts, both the high courts
and the various levels of magistrates‘ courts, have continued to impose
sentences across the whole spectrum of common law criminal offences
from murder to common assault; robbery, housebreaking, theft and
malicious injury to property; kidnapping; fraud, forgery and uttering, and
extortion; sexual offences, ranging from rape to indecent assault; and
many others. In doing so they exercised a judicial discretion on the basis
that ‗the measure of punishment is a matter for the judge who imposes
it‘.21 The rules governing the exercise of that discretion were set out in
countless decisions of this court. It is appropriate to reflect on how Mr
Prins, if convicted, would have been dealt with under that regime. He was
charged on the basis of an allegation that he had fondled the
complainant‘s breasts and private parts without her consent. Such conduct
(if proven) has always constituted a crime in South Africa. Until the
coming into force of the Act it was prosecuted as the common law crime
of indecent assault, which was repealed and replaced by the offence of
sexual assault in s 5(1) of the Act.22 There was no statutorily prescribed
sentence for this offence. Accordingly under the law as it stood prior to
the coming into force of the Act Mr Prins would have been prosecuted for
the common law offence of indecent assault and, if convicted, sentenced
by the regional magistrate to a sentence within his statutory powers.

20 Section 52 of Act 105 of 1997.
21 I Lionel Swift and A B Harcourt QC The South African Law of Criminal Procedure (1st ed, 1957) at
479.
22 The long title to the Act says inter alia that it repeals the offence of indecent assault and replaces it
with the offence of sexual assault.

[14] None of this is controversial. Problems arise when statutory
offences are created without specifying a penalty. That is the problem in
the present instance. Although the instances where this arose are rare,
where a criminal offence was created by legislation, but no penalty was
prescribed in that legislation, there were judgments that held that the
court could impose a sentence, within the limits of its general
jurisdiction.23 That also had some academic support. Thus Professor
Snyman writes:
‗If a statutory provision creates a criminal norm only, but remains silent on the
criminal sanction … the punishment is simply in the court‘s discretion, that is, the
court itself may decide what punishment to impose.‘24
The high court‘s decision effectively holds that this latter proposition is
incorrect and that, in the absence of a statutorily prescribed penalty, no
offence is created, however clear the language of the statutory provision.
That is necessarily implicit in its conclusion that the charge sheet failed to
disclose an offence. In other words it held that the absence of a penalty
provision in the Act in respect of these offences meant that the relevant
sections did not give rise to an offence at all.

[15] This conclusion conflates the operation of the two maxims. One
can readily see that, when a court is confronted with the question whether
a statutory provision prohibiting particular conduct is a crime, the failure
of the legislature to attach a penalty to non-compliance is an important
factor in determining whether a crime was constituted thereby. This was

23 R v Forlee 1917 TPD 52 and the cases cited in paras 40 and 41 of the judgment of Blignault J in the
high court.
24 C Snyman Criminal Law 5 ed 41. This passage, appearing in the third edition, was cited by
Ackermann J in S v Francis 1994 (1) SACR 350 (C) at 355d-h, with apparent approval. See also
Milton and Cowling South African Criminal Law and Procedure Volume III Statutory Offences 2 nd
edition para 1-20; M A Rabie and M C Maré Rabie and Strauss Punishment: An Introduction to
Principles  (4 ed) 81-82.

the determining factor in this court in R v Zinn,25 where it was held that a
Besluit by the Transvaal Volksraad, prohibiting the use or occupation of
land in townships by ‗Coloured‘ people, did not, in the absence of a
criminal penalty, create a criminal offence. Greenberg JA, who gave the
judgment of the court, carefully refrained from deciding whether, in the
absence of both an express statement of criminality and a penalty, it was
permissible for a court to construe a legislative prohibition on particular
conduct as creating a crime by necessary implication.

[16] That issue arose in the controversial decision in R v Forlee supra,
which concerned a statute that prohibited the sale of opium, save by a
pharmacist under a prescription, but did not say that such a sale was a
crime nor provided for a penalty for making such a sale. Mason J pointed
out that the sale of opium in such circumstances had always been a crime
and that the possession of opium, other than by a pharmacist or under a
prescription, was said specifically to be a crime. He concluded that the
absence of a penalty did not mean that the sale of opium was not an
offence punishable by the courts within their ordinary powers. I agree
with Greenberg JA in Zinn‘s case, supra,26 that:
‗The final conclusion, in Rex v Forlee (supra), that the enactment constituted an
offence was based on the broad ground that the act in question (viz., the sale of
opium) was ''expressly prohibited in the public interest and with the evident intention
of constituting an offence".‘
The approach of the court was that an inference of an intention to
criminalise the prohibited conduct could be drawn from the language of
the statute even though there was no clear statement to that effect.

25 R v Zinn 1946 AD 346.
26 At 355.

[17] The decision in R v Forlee has been the subject of considerable
academic, and some judicial, criticism on the basis that to hold that a
statute creates a crime by necessary implication infringes the principle of
legality.27 However, it is unnecessary to decide whether the criticism is
justified, because that question does not arise in the present case. We are
not asked to infer that s 5(1) and the other relevant provisions of the Act
render the conduct described therein criminal. The problem in the present
case is the effect of the absence of a penalty provision on the offences
created by the Act. Before turning to address that issue I will briefly
indicate why it is clear that the Act creates criminal offences in chapters
2, 3 and 4 thereof.

The Act creates criminal offences and contemplates offenders being
sentenced
[18] There can be no doubt that the Act in express terms created
criminal offences in ss 2 to 26 thereof, all of which are couched in similar
terms. My starting point is the statement of the objects of the Act in s 2
thereof, which reads:
‗Objects
The objects of this Act are to afford complainants of sexual offences the maximum
and least traumatising protection that the law can provide, to introduce measures
which seek to enable the relevant organs of state to give full effect to the provisions of
this Act and to combat and, ultimately, eradicate the relatively high incidence of
sexual offences committed in the Republic by:
(a) Enacting all matters relating to sexual offences in a single statute;
(b) criminalising all forms of sexual abuse or exploitation;
(c) repealing certain common law sexual offences and replacing them with new and,
in some instances, expanded or extended statutory sexual offences, irrespective of
gender …‘

27 J C de Wet and H L Swanepoel, Strafreg 4 ed 46-47; C Snyman Criminal Law 5 ed 41-42; S v
Francis supra at 355d-h.

Each of these objects refers expressly to the creation of criminal offences.

[19] The long title to the Act also makes its purpose clear. It is first a
consolidating measure directed at bringing together in one piece of
legislation all criminal offences of a sexual nature. Second, it replaces
and in some respects broadens the scope of existing common law crimes
of a sexual nature. Third, it creates a number of new offences. This
emerges clearly and without any need for explanation or clarification
from the following portions of the long title:
‗To comprehensively and extensively review and amend all aspects of the laws and
the implementation of the laws relating to sexual offences, and to deal with all legal
aspects of or relating to sexual offences in a single statute, by—
*
repealing the common law offence of rape and replacing it with a new
expanded statutory offence of rape, applicable to all forms of sexual penetration
without consent, irrespective of gender;
*
repealing the common law offence of indecent assault and replacing it with a
new statutory offence of sexual assault, applicable to all forms of sexual violation
without consent;
*
creating new statutory offences relating to certain compelled acts of
penetration or violation;
*
creating new statutory offences, for adults, by criminalising the compelling or
causing the witnessing of certain sexual conduct and certain parts of the human
anatomy, the exposure or display of child pornography and the engaging of sexual
services of an adult;
*
repealing the common law offences of incest, bestiality and violation of a
corpse, as far as such violation is of a sexual nature, and enacting corresponding new
statutory offences;
*
enacting comprehensive provisions dealing with the creation of certain new,
expanded or amended sexual offences against children and persons who are mentally
disabled, including offences relating to sexual exploitation or grooming, exposure to
or display of pornography and the creation of child pornography, despite some of the
offences being similar to offences created in respect of adults as the creation of these

offences aims to address the particular vulnerability of children and persons who are
mentally disabled in respect of sexual abuse or exploitation;
*
eliminating the differentiation drawn between the age of consent for different
consensual sexual acts and providing for special provisions relating to the prosecution
and adjudication of consensual sexual acts between children older than 12 years but
younger than 16 years;
*
criminalising any attempt, conspiracy or incitement to commit a sexual
offence …‘

[20] It is convenient, in considering a more specific example, to look at
the charge facing Mr Prins. He was charged with a contravention of s 5(1)
of the Act, which provides that:
‗(1) A person (―A‖) who unlawfully and intentionally sexually violates a complainant
(―B‖), without the consent of B, is guilty of the offence of sexual assault.‘
Nothing could be clearer than that this provision creates a criminal
offence. The same is true of each of the other provisions that define
criminal offences in chapters 2, 3 and 4 of the Act. They are all couched
in language that proclaims unequivocally that their purpose is to render
criminal the conduct described therein. This is not a case where the
intention to criminalise the conduct in question must be inferred. It is
expressly stated. The language of the sections is unequivocal and the
context provided by the need to protect vulnerable people against sexual
attacks in the light of the Constitution and South Africa‘s international
obligations reinforces the construction that each of the relevant sections
creates a criminal offence.28 No other construction has been suggested.

28 The language of the sections must always be read in the light of the context. Natal Joint Municipal
Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA) paras 18 and 24. Here language
and context converge.

[21] The Act is equally unequivocal in its contemplation that on
conviction the courts will impose an appropriate sentence on the accused.
That is clear from s 56(7) of the Act, which provides that:
‗If a person is convicted of any offence under this Act, the court that imposes the
sentence shall consider as an aggravating factor the fact that the person—
(a)
committed the offence with intent to gain financially, or receive any favour,
benefit, reward, compensation or any other advantage; or
(b)
gained financially, or received any favour, benefit, reward, compensation or
any other advantage,
from the commission of such offence.‘
In addition, the National Director of Public Prosecutions is required to
develop and publish directives dealing with the sentencing of persons
after conviction of offences under the Act, and the provision of pre-
sentencing reports and information concerning the impact of the sexual
offence on the complainant.29 A number of other sections contemplate the
imposition of a sentence on a person convicted of contravening any of the
provisions in chapters 2, 3 and 4 that creates an offence. The National
Register for Sex Offenders, provided for in s 42, must contain particulars
of the sentence imposed on an offender whose name falls to be included
in the Register.30 Among the persons whose names must be included in
the Register are those who are serving or have served a sentence of
imprisonment as the result of a conviction for a sexual offence against a
child or a person who is mentally disabled.31

[22] The Act thus expressly renders criminal the conduct described in
the various sections in chapters 2, 3 and 4 thereof and contemplates the
imposition of sentences on offenders. Its aim is the prosecution and

29 Section 66(2)(a)(viii).
30 Section 49(b)(iv). If the conviction and sentence took place in a foreign country the equivalent
information must be included (s 49(c)).
31 Section 50(1)(a)(iii) read with s 50(2)(a)(i). See also s 55.

sentencing of persons who commit these offences. This is not a matter of
implication but is expressly stated in the Act. The difficulties raised by R
v Forlee do not arise in this case.

The issues
[23] Against this background, the conclusion by the high court that the
charge sheet did not disclose an offence was, on the face of it, incorrect.
It undoubtedly disclosed an offence, unless the absence of a penalty in the
Act itself, or elsewhere in other legislation, has the effect of displacing
the clear language of these sections and rendering their statement that
particular conduct is a criminal offence nugatory. That raises two separate
issues. The first is whether, notwithstanding the absence of an express
penalty provision in the Act, there is a legal basis in either the common
law or an applicable statute for the imposition of sentences on persons
convicted of the various offences set out in the Act. If there is, the basis
for the high court‘s decision falls away as it was entirely founded on the
absence of any penalty. The second issue arises if the high court was
correct in holding that there is no legal basis for imposing a penalty on
offenders. If that is so the effect of this on the validity of charge sheets in
relation to offences set out in the relevant sections of the Act must be
determined. As already noted the high court held that this invalidated the
charges. That may be incorrect, as the effect of a decision that these
sections do not create criminal offences, because of the absence of a
statutorily prescribed penalty, is to say that the relevant sections are
unconstitutional. That follows from the reliance on the maxim nulla
poena sine lege and the principle of legality. A magistrates‘ court lacks
jurisdiction to hold that a statute is unconstitutional. Accordingly, if a
question of the constitutionality of a statutory offence arises in the course
of a criminal trial in the magistrates‘ court, the proper approach is to

conduct the trial, subject to a reservation of rights in relation to the point
of unconstitutionality, and then to raise that point in an appeal. There may
be special circumstances in which it would be proper to stay the
proceedings before the magistrate pending an appropriate challenge in the
high court, but in general that approach should be eschewed for the
reasons stated by Langa CJ in Thint (Pty) Ltd v National Director of
Public Prosecutions & others.32  In this case, considering the magistrate‘s
view that he lacked any sentencing power, as well as the importance of
the issues and the public interest, an approach to the high court would
probably have been the better course.

[24] The two issues identified in the previous paragraph were not
addressed in that form by the court below and they were not raised in
precisely those terms in the formulation of Mr Prins‘ objection to the
charge sheet. There it was said that the charge did not comply with the
requirements of the Criminal Procedure Act 51 of 1977 (the CPA)
because it did not refer to the penalty provisions applicable to the crime;
that because there was no reference to any penalty provisions the charge
lacked a material element of the statutory offence; that the charge did not
disclose an offence because it did not refer to the applicable penalty
provisions and that it lacked sufficient particularity because of the
absence of a reference to the relevant penalty provisions. In each of these
forms the objection was deficient because it proceeded from the
erroneous premise that it is necessary to the validity of a charge, at least
one of committing a statutory offence, to specify the penal consequences
of conviction. That is not correct. All that is required is that the charge set

32 Thint (Pty) Ltd v National Director of Public Prosecutions & others: Zuma & another v National
Director of Public Prosecutions & others 2009 (1) SA 1 (CC) para 65.

out the particulars of the offence with which the accused is charged.33
That does not include the sentence that may be imposed on conviction. It
is only necessary to specify the penal consequences of conviction where
the prosecution proposes to rely upon specific provisions, such as those in
the minimum sentencing legislation, where it is necessary to forewarn the
accused of the potential consequences of conviction, if that may affect the
manner in which the defence is conducted. Whilst it may be customary
and desirable, when an offence is created by statute and the statute also
specifies the penalty, for the charge sheet to refer to the penalty,34 its
absence does not render the charge invalid or warrant the quashing of the
charge.35 Whether it may, in some circumstances, impinge on an accused
person‘s fair trial rights in another way does not arise in this case. Before
us, counsel for Mr Prins accepted that his fair trial rights were not in
issue.

[25] There is much to be said for the proposition that the issue, that Mr
Prins was seeking to raise by his objection, only properly arises at the end
of a case where an accused has been convicted and the issue of sentence
comes to the fore. However, now that it is before us, it is undesirable not
to deal with it knowing that it will otherwise return to this court in the
near future. However, if the argument on his behalf is upheld, attention
will need to be given to the appropriate form of relief. On the charge as
formulated, he could plead guilty to, or be found guilty of, assault with
intent to commit grievous bodily harm or common assault,36 and there is
no question about the entitlement of the regional court before which he

33 Section 84(1) of the CPA. Insofar as the judgment in S v Rautenbach 1991 (2) SA 700 (T) at 701j-
702a suggests that the penalty is an essential part of a statutory criminal offence that statement was
obiter and is incorrect.
34 S v Ndlovu 1999 (2) SACR 645 (W) at 649f-i
35 S v Badenhorst 1991 (1) SACR 623 (T).
36 Section 261 (a) and (b) of the CPA.

has been arraigned to sentence him for those offences. Accordingly, even
if his contentions are correct it does not necessarily follow that the charge
should be quashed.

A legal basis for sentencing offenders under the Act
[26]  I turn then to deal with the first question, namely, whether there is
any provision of the common law, or of a statute, that provides for the
imposition of sentence on a person convicted of an offence under the Act,
for which no penalty is expressly stipulated and which does not fall
within the minimum sentencing legislation. The debate before us
revolved around this question and in particular the state‘s reliance on
s 276 of the CPA. It is appropriate to note that this argument was not
raised before the high court (and presumably before the magistrate). Had
it been, I have no doubt that a judge, as experienced as Blignault J, would
have dealt with it and possibly the outcome of the case would have been
different. Although there was some muted protestation on behalf of Mr
Prins about the fact that in the high court reliance had not been placed on
s 276 counsel accepted that the argument was one of law that can
properly be raised before us.

[27] Section 276(1) provides that:
‗Subject to the provisions of this Act and any other law and of the common law, the
following sentences may be passed upon a person convicted of an offence …‘.
The sub-section
goes on to specify
imprisonment, periodical
imprisonment, declaration as an habitual criminal, committal to an
institution established by law, a fine, correctional supervision and
imprisonment from which a person may be placed under correctional
supervision, as permissible sentences. Sub-section (2) makes these
powers in regard to sentence subject to other provisions requiring a court

to impose a specific sentence or limiting its powers in regard to sentence
or derogating from powers conferred under legislation to impose some
other type of sentence or order a forfeiture in addition to any other
punishment.

[28] The State argued that s 276(1) is a general penalty provision
empowering courts to impose sentences in all situations where there is no
other provision in law prescribing the sentence that can be imposed for an
offence.37 It contends that the section provides the legal foundation for
the imposition of sentences in relation to common law crimes as well as
statutory crimes, where no sentence is otherwise prescribed. Beyond that
the precise scope of the court‘s sentencing powers depend upon whether
it is a high court, a regional court or a magistrates‘ court. In this way it
was submitted that the principle of legality is satisfied. It is immaterial, so
this argument proceeded, that the provisions in regard to sentence are
derived from a statute other than the Act and need to be garnered from
s 276, read with the jurisdictional limitations on the court before which
the accused is charged. That is the case with, for example, rape, where the
sentencing powers of courts are derived from the minimum sentencing
legislation. It is the case with all common law crimes, where the elements
of the offence are derived from the common law and the sentencing
powers of the court derive from s 276 of the CPA. The State contended
that the same position prevails when a statute creates a crime but does not
itself provide for a penalty. The permissible penalties are then to be found
in s 276 read with the relevant provisions (if any) regarding the powers of
the court concerned in regard to sentence.

37 E du Toit, F J de Jager, A Paizes, A St Q Skeen and S van der Merwe Commentary on the Criminal
Procedure Act (loose-leaf) p28-9 (Service 47, 2011).

[29] Counsel for Mr Prins join issue with this argument. They contend
that the opening words of s 276(1), namely:
‗Subject to the provisions of this Act and any other law and of the common law, the
following sentences may be passed upon a person convicted of an offence …‘,
contain a general enabling provision, as far as the various forms of
punishment are concerned, but are not meant as a source of the power to
sentence an offender for a statutory crime. They rely on the following
passage from the judgment of this court in S v Van Dyk:38
‗The correct interpretation of the section must be determined from the context of
s 276 as a whole. It is headed: ―Nature of Punishments‖. Section 276(1) lists, in
general terms, various forms of punishment available for consideration and imposition
by a court which has convicted a person of an offence either in terms of a particular
statute or under the common law. The use of the words ―subject to‖ at the beginning
of subsec (1) indicates that the subsection will be subservient to any provision of the
common law, the Act or another statute in case of conflict (cf S v Marwane 1982 (3)
SA 717 (A) at 747H – 748B).‘
They submit that if s 276 may be invoked in respect of any offence for
which no other sentence is prescribed then it renders the penalty
provisions in all other legislation superfluous and contend that the
proposition that it resolves the question of a legal basis for sentencing
offenders under the provisions of the Act ‗is simply not correct‘. They
also point out that the charge sheet makes no reference to this section.

[30] I start, as with the interpretation of any other statutory provision,
with the language of s 276(1). Its operative words are ‗the following
sentences may be passed upon a person convicted of an offence‘. There is
nothing obscure or unclear about that language. It identifies the sentences
that our law permits and says that those sentences may be imposed upon a
person convicted of an offence. It echoes the similar language of the

38 S v Van Dyk fn 16 above, para 10.

earlier Criminal Procedure Acts. Thus s 338(2) of the Criminal Procedure
Act 31 of 1917 read:
‗Sentences to the following punishments may be passed upon a convicted offender
subject to the provisions of this Act or of any other law or of the common law …‘
Section 329(3) of the Criminal Procedure Act 56 of 1955 read:
‗The following sentences may subject to the provisions of this Act or any other law or
of the common law be passed upon a person convicted of any offence …‘
The section has a twofold purpose. In the first place it empowers courts to
impose sentences upon persons convicted of crimes. It is the embodiment
of the principle nulla poena sine lege. Second it limits the punishments
that courts may impose to those set out in the section and no others. That
is what, as was said in S v Malgas supra,39 prevents the courts from
devising new punishments.

[31] That these sections have been, and s 276 now is, the source of the
power of our courts to impose sentences is apparent from looking at the
case of common law crimes. There is no other provision of our law
dealing with the power of courts to impose sentences for such crimes.
Absent s 276 neither the magistrates‘ courts nor the high courts would be
entitled to impose sentences on people who commit common law crimes.
Counsel for Mr Prins accepted that this is correct. But that poses an
insuperable problem for his argument. The language of s 276(1) does not
restrict its field of operation to common law crimes. It is an entirely
general empowering provision. An offence is defined in s 1 of the Act as
‗an act or omission punishable by law‘ and is not confined to common
law offences. Counsel was unable to point to anything in the section or
elsewhere in the CPA or in any material extraneous to the CPA that
would suggest that the power to sentence offenders, conferred by

39 Para 2.

s 276(1), should be confined to common law crimes. However, his
argument necessarily requires that we give a restrictive interpretation to
the section to confine the scope of its operation to common law crimes.

[32] We were referred to the opening words of s 276(1), that make its
provisions subject to the other provisions of the CPA or any other law.
The first part of this provision is there to make it clear, for example, that
s 276(1) does not override the power of a court, in terms of s 297, to
postpone the passing of sentence or to discharge the person with a caution
and reprimand. The latter subordinates the court‘s general sentencing
powers to specific legislation dealing with offences. Thus, a court is not
entitled to exercise its powers under s 276(1) to sentence to imprisonment
a person convicted of the offence of contravening their licence in terms of
s 74(1) of the Electronic Communications Act 36 of 2005, in the face of
the provisions of s 74(2) of the latter Act, which state that the penalty for
an offence under s 74(1) is that the licensee must outsource the
construction or placing into service of the relevant electronic
communications facility or electronic communications network to a third
party. Similarly the provisions of s 276(2), upon which some reliance was
also placed, do not warrant the restrictive construction of s 276(1) for
which counsel contended. The opening words also make it clear that
courts are bound to have regard to specific penal provisions in legislation.
It does not follow that the absence of specific statutory penal provisions
renders the court‘s power to impose the sentences provided for in s 276
nugatory. On the contrary it is to those powers that courts must turn in
imposing sentence. This has always been accepted in respect of common
law crimes and there is no reason to confine it to those crimes.

[33] Nor is there anything in the context of the statute to justify a
restrictive construction. Historically the section is derived from s 242 of
the Criminal Procedure Code enacted in Ordinance 1 of 1903 of the
Transvaal. However that section simply specified the range of permissible
sentences and did not say that courts were empowered to impose those
sentences on offenders. Similarly there appears not to have been a
provision in either of the Criminal Procedure Ordinances40 in the Cape or
the Criminal Procedure Ordinance 18 of 1845 (Natal) specifically
empowering courts to impose sentences on offenders. When the Criminal
Procedure Act 31 of 1917 was passed it took the earlier provision in the
Transvaal Code as its basis but recast the section to say that the specified
punishments ‗may be passed upon a convicted offender‘.41 That was done
at a time when it was known that there were a number of statutory
offences on the statute books and the possibility that the legislation in
which they were contained might lack a penalty provision had arisen in
some cases. The general language used is only consistent with its
applying to both common law and statutory crimes. The historical
background is therefore inconsistent with the limitation of language for
which counsel contended.

[34] The next important contextual matter is the principle of legality
and the need for the power to impose punishment and the extent of that
power to be contained in a law. Section 276(1) recognises and embodies
that principle in relation to common law crimes. There seems to be no
reason why it should not also be taken to ensure that the principle is
recognised and complied with in relation to any statutory crimes where
the legislature has, for whatever reason, not incorporated a specific

40 Ordinance 40 of 1828 and Ordinance 73 of 1830.
41 The 1917 Act was passed a few months after the decision in R v Forlee supra.

penalty provision in the statute creating the offence. An interpretation of
the section in compliance with the principle of legality is constitutionally
mandated.42

[35] It is also helpful to examine whether the restrictive interpretation
counsel sought to place on the key words in s 276(1) has a sensible
outcome. He accepted that they empower courts to impose sentences for
the offences of assault with intent to do grievous bodily harm and
common assault, which are the alternative crimes of which Mr Prins
could have been charged and convicted on precisely the same factual
allegations as the main offence under s 5(1) of the Act. This raised the
following conundrum. Had the prosecutor included, in the alternative to
the main charge under s 5(1) of the Act, an alternative charge of common
assault based on precisely the same facts, no objection could have been
made against that charge. The reason is that the magistrate would have
been empowered by s 276(1) to impose an appropriate sentence for that
offence. Once that is recognised the obvious question is why should it be
any different in relation to the statutory offence? The absurdity of
importing a limitation into the language of s 276(1), so that a charge
based on a particular set of facts will be unimpeachable if it is a charge of
a common law crime, but invalid if it is based on a statute making those
facts a statutory crime, is apparent. It is even more apparent when it is
recognised that the statutory crime is in substance the equivalent of the
common law crime that it replaces. No reason could be suggested why
the application of s 276(1) to the statutory crime would place Mr Prins in
a less advantageous position than he would have been in had he been
charged on the same facts with the crime of indecent assault. The
statutory offence under s 5(1) mimics the common law offence of

42 Section 39(2) of the Constitution.

indecent assault. Thus the courts will have a pattern of sentencing in past
cases to guide them in fixing an appropriate sentence for the equivalent
statutory offence.

[36] Although it cannot affect the construction of s 276(1), we were
addressed on the reasons for the omission in the Act to specify penalties
for the offences in chapters 2, 3 and 5. However, the submissions
fluctuated wildly, with parties commencing by saying that the omission
was a mistake and, under probing questions from the bench, ending by
saying that it was deliberate. All that this demonstrates, as was said in
Natal Joint Municipal Pension Fund v Endumeni Municipality, supra,43 is
that little purpose is served by speculation as to the intention of
Parliament.44 We simply do not know whether the omission of specific
penalties in relation to these offences or a general penalty clause covering
them, whether the omission was deliberate or an oversight. What we do
know is that the legislation clearly anticipated that people would be
charged with offences under the Act and, after conviction, would be
sentenced. In the absence of any provision in the Act governing penalty
the necessary implication is that this was to be left to the general
discretion of the courts in terms of their powers under s 276(1).

[37] In addition Parliament has, since the judgment of the high court
was delivered, met and passed an amending Bill,45 that expressly provides
that the powers of courts in regard to sentence for the offences in chapters
2, 3 and 4 of the Act are those specified in s 276 of the CPA.46 Whilst this

43 Para 20.
44  Significantly the Minister did not say in the affidavit in support of his application to intervene why
the Act did not contain any penalty provisions in respect of these offences. As he chose not to tell us
why this had happened I do not think it appropriate for us to speculate on the reasons.
45 Criminal Law (Sexual Offences and Related Matters) Amendment Act 2012 (B19/2012).
46 It inserts the following section in the Act:

Bill still awaits the assent of the President it nonetheless provides a clear
example of subsequent legislation constituting a ‗legislative declaration‘
of the meaning parliament wishes to have ascribed to earlier legislation.47
Whilst I do not suggest that this principle can be used to afford a meaning
to legislation that it is not otherwise capable of bearing – that would
amount to retrospective legislation – it is appropriate to invoke it in this
case where the Act clearly aimed at creating offences and ensuring that
the courts sentence those they convicted of those offences. In addition the
amending Bill says that its purpose is to provide expressly that the
imposition of penalties for certain offences in terms of the Act is to be left
to the discretion of the courts. That accords with what I regard as the
necessary implication to be drawn from the language of the Act itself.
Accordingly this is a proper case where the legislative declaration
coincides with the implications to be drawn from the Act itself.

[38] For all those reasons the argument that s 276(1) must be construed
as being a provision empowering courts to impose sentences in relation
only to common law crimes must be rejected. In my opinion it is a
general empowering provision authorising courts to impose sentences in
all cases, whether at common law or under statute, where no other
provision governs the imposition of sentence. I reject the argument that
the Act, in creating the offences set out in chapters 2, 3 and 4 thereof,

56A (1) A court shall, if—
(a) that or another court has convicted a person of an offence in terms of this Act; and
(b) a penalty is not prescribed in respect of that offence in terms of this Act or by any other Act, impose
a sentence, as provided for in section 276 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977),
which that court considers appropriate and which is within that court‘s penal jurisdiction.
(2) If a person is convicted of any offence under this Act, the court that imposes the sentence shall
consider as an aggravating factor the fact that the person—
(a) committed the offence with the intent to gain financially, or receive any favour, benefit, reward,
compensation or any other advantage; or
(b) gained financially, or received any favour, benefit, reward, compensation or any other advantage,
from the commission of such offence.‘
47 Patel v Minister of the Interior & others 1955 (2) SA 485 (A) at 493A-D; National Education Health
and Allied Workers Union v University of Cape Town 2003 (3) SA 1 (CC) para 66.

infringed the principle of legality by not prescribing the penalties to be
imposed for those offences. I also reject the contention, unsupported by
authority, that a statutory offence can only be created by parliament if it
includes a penalty in the enacting legislation. That may be a requirement
in countries where the criminal law is codified, but that is not the position
in South Africa.

[39] It follows that the decisions of the magistrate and the high court
were wrong and must be set aside. The order I make is as follows:
The appeal is upheld.
The order of the high court is set aside and replaced by the
following order:
‗The appeal succeeds and the order of the magistrate is altered to one
dismissing the objection to the charge.‘

M J D WALLIS
JUDGE OF APPEAL

Appearances
For appellant:
B E Currie-Gamwo (with her B Hendry-Sidaki)
from the office of the National Director of
Public Prosecutions
Instructed by:
State Attorney, Bloemfontein
For respondent:

P A Botha (with him Y Isaacs)

Instructed by:

Cape Town Justice Centre

Bloemfontein Justice Centre

For intervening party:
M R Madlanga SC (with him V Ngalwana and
N Nharmuravate).

Instructed by:

State Attorney, Johannesburg and
Bloemfontein.
For first Amicus Curiae S Budlender

Instructed by:

Legal Resources Centre, Cape Town

Locally represented by:

UFS Law Clinic,

Bloemfontein.
For second Amicus Curiae
M Norton (with her S Cowen)

Instructed by:

Women‘s Legal Centre Trust

Locally represented by:

Webbers, Bloemfontein
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:   The Registrar, Supreme Court of Appeal

Date:  13 June 2012

Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Director of Public Prosecutions Western Cape (Minister of Justice
and Constitutional Affairs & two amici curiae intervening) v Prins

The SCA today overturned the decision by the Western Cape High
Court that held that criminal charges could not be successfully pursued
and prosecuted in respect of sexual offences under the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007,
because of the absence of penalty provisions in that Act. The SCA held
that the penalty provisions in section 276 (1) of the Criminal Procedure
Act empower courts to impose sentences upon people convicted of sexual
offences under the Sexual Offences Act and the fact that the Act itself
does not contain penalty provisions does not justify the quashing of
charges laid under the Act. The court held that the constitutional principle
of legality as summed up in the Latin maxim nulla poena sine lege ( no
penalty without law) is satisfied by reference to the sentencing powers
enjoyed by all courts under the Criminal Procedure Act.