19 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. 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.