POLITICIANS and prosecutors are scrambling to fix a parliamentary bungle that could see thousands of sex offenders walk free.
And with five years’ of sex crime prosecutions on the brink of collapse, anxious sex crime victims are frantically calling rape crisis counsellors for answers.
"To have all of that work undone – it is a nightmare,” Rape Crisis helpline director Kathleen Dey said.
In a landmark judgment that will have devastating effects, Cape High Court judge Andre Blignault declared on Friday that large parts of the Sexual Offences Act were flawed and 29 types of sex crimes, including sexual assault, could not be prosecuted.
The issue first came to light in 2010, when Cape Town advocate Pieter Botha warned the National Prosecuting Authority (NPA) that parliament had not prescribed sentencing guidelines for 29 serious sex crimes in the new Sexual Offences Act, passed in 2008.
They include sexual assault and sexual grooming as well as exploitation of children and the mentally disabled.
The NPA responded by simply withdrawing charges against the accused and did not take the case any further.
The issue was raised again by Botha in another case in Mossel Bay later that year, in which the regional court magistrate agreed, saying that sexual assault was an invalid charge as there was no prescribed penalty for the crime and the state could not continue the prosecution.
The ruling was appealed, leading to Blignault’s latest ruling on Friday.
Since then, the national Rape Crisis helpline has been besieged by calls from anxious victims of sex crimes, desperate to know if the latest judgment would deny them justice.
Meanwhile, parliamentary officials and the NPA are consulting with counsel to find a way to appeal against the ruling.
Dey said lots of calls had been received from the victims of sexual assaults asking if the perpetrators’ convictions were going to be set aside.
"But the government has not told us anything. We cannot help our callers. We need to know what is going to happen.”
Dey said the judgment created an extraordinary situation that would lead to victims of sex crimes being traumatised again.
NPA spokesman Mthunzi Mhaga said they were still scrutinising the judgment for grounds to appeal.
"We are also seeking an opinion from counsel,” he said.
"In principle, this is a matter that needs to be appealed due to its far-reaching implications for sexual violence cases.”
Justice and Constitutional Development portfolio committee chairman Luwellyn Landers also called for an urgent meeting this week to discuss the shortcomings in the law. The Justice Department indicated it was awaiting a legal opinion from counsel on the issue.
"The justice portfolio committee agreed today [Wednesday] that the department must provide us with a report early next week regarding the status of any possible appeal and specify which steps will be taken to remove uncertainties from the legislation,” Landers said.
DA shadow deputy minister of Justice and Constitutional Development Debbie Schafer said: "If necessary, legislation to this effect must be passed as soon as possible.”
