JOHANNESBURG -  The Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2012 was published in the Government Gazette on June 26.

The amendment to the Act expressly provides that the imposition of penalties in respect of certain offences under the Act is left to the discretion of the courts, within that court’s penal jurisdiction.

The amendments, among others, refer to persons who employ others, including children, or commit sexual acts with them for financial gain and the sexual exploitation of mentally disabled persons.

It also stipulates that the court imposing a sentence should consider it as an aggravating factor that an accused had committed the offence with the intent to gain financially or receive any other advantage.

The amendment to the Act follows in the wake of a Western Cape High Court ruling in May this year which found that criminal charges could not be successfully prosecuted in respect of sexual offenders under the Act because of the absence of penalty provisions in the Act.

Following a public outcry and the withdrawal of charges against some offenders, the National Prosecuting Authority thereafter successfully appealed against the ruling.

The Appeal Court in Bloemfontein last month ruled that the penalty provisions in section 276 (1) of the Criminal Procedure Act 51 of 1977 empowered courts to impose sentences in cases where a person was convicted of sexual offences under the Sexual Offences Act.

The Appeal Court also ruled that the fact that the Sexual Offences Act itself did not contain penalty provisions did not justify the quashing of charges laid under the Act.

One of the arguments presented in the Appeal Court was that the Western Cape High Court ruling ignored the constitutional and international rights of children.

The National Assembly in May this year granted permission for an expedited process to rush changes to the Act through the legislative process as an emergency measure.