Brief Summary

Criminal Law — Sexual Offences — Objection to charge — Appeal against ruling upholding objection that charge did not disclose an offence — Accused charged with rape under Sexual Offences Act post-commencement of Act for an offence committed prior to its enactment — Transitional provisions of the Act deemed unconstitutional as they create immunity from prosecution for common law crimes not reported before the Act's commencement — Court finds that the accused should be charged with common law rape, as the Act was not in force at the time of the alleged offence.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was an appeal by the State against a ruling of the Acting Regional Magistrate, Boksburg. The magistrate had upheld an objection raised by the accused (the second respondent) that the charge sheet did not disclose an offence.

The parties were the State as appellant, the Acting Regional Magistrate, Mr Phillip Venter as first respondent, and Lucas van der Merwe (the accused) as second respondent. The appeal arose from proceedings in the regional court where the accused had been arraigned on a charge of rape framed under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

Procedurally, before the accused pleaded, his counsel raised an objection in terms of section 85(1)(c) of the Criminal Procedure Act 51 of 1977, contending that the charge did not disclose an offence because the alleged conduct pre-dated the commencement of the 2007 Act and, further, that the common-law crime of rape had been repealed by that Act. The magistrate upheld the objection but declined to make an order under section 85(2) (amendment or quashing), stating that such an order would implicate the constitutional validity of the Act’s transitional provisions, which the magistrate’s court lacked competence to determine.

The dispute concerned the transitional effect of the statutory repeal of common-law sexual offences, and in particular whether the wording of section 69 of the 2007 Act produced an unintended consequence: that certain pre-commencement common-law sexual offences might become immune from prosecution if they were only reported or investigated after the Act commenced.

2. Material Facts

The alleged offence was that on or about 7 September 2005, at Angelo Squatter Camp in Boksburg, the accused unlawfully and intentionally committed an act of sexual penetration with the complainant, S M, a three-year-old child, without consent. The judgment treated the alleged date of commission and the complainant’s age as the operative factual premises for the legal issue.

It was further material that the offence was reported to the police on 3 February 2009, which was after the commencement date of the 2007 Act, namely 16 December 2007. The timing of the report (and, by implication, the initiation of investigation) was central because the transitional scheme in section 69 purported to preserve the continued operation of repealed common-law crimes only in specified circumstances.

The State charged the accused in the regional court with rape in contravention of section 3 of the 2007 Act. The defence objected before plea, asserting that the charge was legally defective because the statute was not in force when the alleged offence occurred, and arguing additionally that the State could not revert to a common-law rape charge because common-law rape had been repealed by section 68(1)(b) of the Act.

The magistrate upheld the objection that the charge did not disclose an offence, but declined to order amendment or quashing under section 85(2), explicitly indicating that the constitutionality of the transitional provisions required evaluation by a competent court. The magistrate granted the State leave in effect to approach the appropriate forum to address the transitional provisions.

3. Legal Issues

The central legal questions were whether a charge framed under section 3 of Act 32 of 2007 could competently be brought where the alleged conduct occurred before the Act’s commencement, and whether—given the repeal of common-law rape by section 68(1)(b)—the State could nonetheless prosecute the accused for common-law rape committed prior to commencement but reported after commencement.

A further central issue was the proper interpretation and constitutional validity of the transitional provisions in section 69, specifically the limiting language that preserved common-law prosecutions only where proceedings had been instituted, or investigations or prosecutions initiated, before the Act commenced. The court treated this as producing an “absurd” and constitutionally problematic immunity from prosecution in certain cases.

The appeal also raised an anterior procedural/legal issue: whether the magistrate’s ruling upholding the objection was appealable, given an argument by the accused that it was not final in effect. This was characterised as a question of law concerning the finality and appealability of the order.

Overall, the dispute primarily concerned questions of law (statutory commencement and retrospectivity; repeal and transitional provisions; constitutional consistency and remedy), alongside the application of law to the accepted chronology of the alleged offence and report.

4. Court’s Reasoning

The High Court accepted that, because the alleged rape occurred on 7 September 2005, the accused should not have been charged with statutory rape under section 3 of Act 32 of 2007. The court agreed with the magistrate that the statute was not in existence at the time of the alleged commission and that the objection under section 85(1)(c) was correctly upheld. On this aspect, the court’s reasoning proceeded from the temporal operation of criminal legislation, as applied to the undisputed date of the alleged offence.

The court held that the accused can and should be charged with common-law rape. However, this conclusion immediately encountered the legislative difficulty created by the interaction between section 68(1)(b) (repealing common-law rape and other common-law sexual offences) and the transitional provisions in section 69. The court identified a “patent deficiency” in section 69, caused by limiting words which preserved common-law proceedings only if instituted prior to commencement, or if an investigation/prosecution/legal proceedings were initiated before commencement. On the court’s reading, those words meant that if an investigation was not initiated before 16 December 2007, then common-law proceedings for pre-commencement conduct could not be instituted after commencement, despite the conduct having constituted a crime when committed.

The court regarded this as an unintended and “absurd” result that could not have been intended by the Legislature, particularly given the Act’s preamble emphasising the grave concern regarding sexual offences and the vulnerability of women and children. The court then assessed the constitutional implications, referring to the Bill of Rights protections in section 12 (freedom and security of the person; freedom from violence; not to be treated in a cruel, inhuman or degrading way; bodily and psychological integrity and security in and control over one’s body) and section 28(1)(d) (children’s right to be protected from maltreatment, neglect, abuse or degradation). The court reasoned that leaving section 69 in its limiting form would undermine the protective aims of the Act and would result in serious violations of these constitutional rights by effectively allowing perpetrators of pre-commencement sexual offences to evade prosecution purely because the matter was reported or investigated only after commencement.

In formulating a remedy, the High Court relied on the Constitutional Court’s discussion of remedial techniques of severance and reading-in in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC). Applying those principles, the court concluded that severance—deleting the limiting words identified in section 69—would render the transitional provisions constitutionally consistent and would interfere as little as possible with the legislative scheme, while restoring the ability to continue or institute proceedings for common-law crimes committed before commencement even where the report or investigation occurred thereafter.

The court emphasised that it was deciding a constitutional matter within its competence and noted that in terms of section 172(2)(a) of the Constitution, its declaration of invalidity would take effect only upon confirmation by the Constitutional Court. The court therefore ordered that the judgment and orders be referred to the Constitutional Court for consideration and possible confirmation.

On the procedural point raised in limine by the accused—that the magistrate’s ruling was not final and thus not appealable—the court rejected the argument. Referring to the appealability principles raised through reliance on Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 513 (A) and Zweni v Minister of Law and Order 1993 (1) SA 523 (A), the court held that upholding the objection to the charge sheet had final effect and was appealable, and it dismissed the preliminary objection.

Finally, the court recorded that the accused had been released on warning and that protective measures were in place for the minor complainant, and it directed that those safeguards remain in force pending the Constitutional Court’s decision.

5. Outcome and Relief

The High Court dismissed the State’s appeal against the magistrate’s ruling upholding the objection to the charge sheet.

The court nonetheless granted constitutional relief by declaring that the underlined limiting words in section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 were inconsistent with the Constitution and with the objectives of the Act, and ordered that they be deleted. The court specified that this declaration would take effect only upon confirmation by the Constitutional Court.

The court ordered that the judgment and the orders be referred to the Constitutional Court in terms of section 172 of the Constitution for consideration and confirmation. It further ordered that the protective order issued by the regional magistrate’s court to safeguard the minor child would remain in force pending the final determination by the Constitutional Court.

No separate costs order is recorded in the judgment.

Cases Cited

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC)

Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 513 (A)

Zweni v Minister of Law and Order 1993 (1) SA 523 (A)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), sections 12, 28, and 172(2)(a)

Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, sections 3, 68, and 69

Criminal Procedure Act 51 of 1977, section 85

Magistrates’ Courts Act 32 of 1944, section 110(1)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that a charge of rape framed under section 3 of Act 32 of 2007 could not be sustained where the alleged offence occurred before the Act’s commencement, and that the magistrate correctly upheld the objection that the charge sheet did not disclose an offence.

The court held that, notwithstanding the repeal of common-law rape by section 68(1)(b), the accused can and should be charged with common-law rape for conduct committed prior to the Act’s commencement. It held that the wording of section 69 impermissibly limited the preservation of common-law prosecutions to matters investigated or instituted before commencement, producing an unintended immunity from prosecution for pre-commencement offences reported or investigated after commencement.

The court held that the limiting words in section 69 were constitutionally inconsistent and ordered their deletion by severance, subject to confirmation by the Constitutional Court, and directed that protective measures for the child complainant remain in place pending that confirmation.

LEGAL PRINCIPLES

A criminal charge must disclose an offence in law, and where a statute is not in force at the time of alleged commission, a charge framed under that statute is defective on the basis identified in section 85(1)(c) of the Criminal Procedure Act 51 of 1977.

A magistrates’ court lacks competence to pronounce upon the validity of legislation, consistent with section 110(1) of the Magistrates’ Courts Act 32 of 1944, and constitutional validity issues must be addressed by a court with the requisite power.

Transitional provisions that regulate the continued operation of repealed common-law offences must be interpreted and, where necessary, constitutionally controlled to avoid outcomes that defeat the protective purposes of legislation addressing sexual offences and that undermine constitutional rights, including the rights protected by sections 12 and 28 of the Constitution.

In crafting constitutional remedies, a superior court may employ severance (and, in appropriate cases, reading-in) guided by the principles articulated in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC), with attention to achieving constitutional compliance while interfering as little as possible with the legislative scheme.

A declaration of constitutional invalidity by the High Court concerning national legislation is subject to confirmation by the Constitutional Court in terms of section 172(2)(a) of the Constitution, and the operative effect of such a declaration is suspended pending confirmation where so ordered.

S v Acting Regional Magistrate, Venter and Another (A11/2010) [2010] ZAGPJHC 126; 2011 (1) SACR 256 (GSJ) ; 2011 (2) SA 455 (GSJ) ; 2011 (4) BCLR 443 (GSJ) ; [2011] 2 All SA 452 (GSJ) (3 December 2010)