30
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,
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:
1
The appeal is upheld.
2
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.’
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