17
[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.
[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
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.
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