Summary of Judgment

1. Introduction

These were two matters placed before the Free State High Court, Bloemfontein, on special review in terms of section 304(4) of the Criminal Procedure Act 51 of 1977. The proceedings concerned the validity of convictions and sentences imposed by a magistrate’s court under legislation that had been repealed by the time the alleged offences were committed.

The parties in each matter were the State as prosecutor and, respectively, Miekie Adams (review number 62/2013) and Katrina Maditaba Molejane (review number 63/2013) as accused persons. The matters were heard by Lekale J, with Mhlambu AJ concurring.

Procedurally, both accused had been convicted and sentenced in the magistrate’s court under the Child Care Act 74 of 1983 during June 2012. After noticing a legal discrepancy, the Senior Magistrate referred both cases on special review, requesting that the reviewing court set aside the convictions and sentences and remit the matters for trial afresh.

The general subject-matter of the dispute was whether an accused can lawfully be charged, convicted, and sentenced under statutory provisions of the Child Care Act 74 of 1983 for conduct occurring after 1 April 2010, the date on which the Children’s Act 38 of 2005 came into operation and effectively repealed the Child Care Act.

2. Material Facts

It was common cause, and treated as material by the reviewing court, that in both matters the trial magistrate convicted and sentenced the accused under the Child Care Act 74 of 1983. The convictions and sentences were imposed on 14 June 2012 (in the first matter) and 21 June 2012 (in the second matter).

It was also not in dispute that each alleged offence was committed after 1 April 2010, which was identified by the reviewing court as the operative date on which the Children’s Act 38 of 2005 came into force and repealed the Child Care Act for purposes relevant to the charges. The first offence was committed during 2011, and the second offence during 2012.

No factual controversy about what occurred in the magistrate’s court, the dates of the alleged offences, or the legislative change was required to be resolved on review. The dispositive facts were the post-commencement timing of the conduct and the fact that the prosecutions were nevertheless instituted and finalised under the repealed Child Care Act.

3. Legal Issues

The central legal question was whether the convictions and sentences were legally sustainable where the accused had been charged, convicted, and sentenced under a statutory regime that had been repealed and replaced as at the date of the alleged offences.

The dispute was predominantly one of law, involving the effect of repeal and the principle of legality in criminal law, and it also entailed the application of legal rules to undisputed dates (namely the dates of repeal/commencement and the dates of the conduct). In particular, the court had to determine whether any transitional provisions preserved the repealed statute for the purpose of prosecuting post-commencement conduct.

4. Court’s Reasoning

The reviewing court accepted the Senior Magistrate’s concern that the convictions and sentences could not stand where they were premised on the Child Care Act 74 of 1983, because that Act had been effectively repealed by the time the offences were committed. The court approached the matter through foundational criminal-law legality requirements: a person may only be convicted and punished under a valid, applicable law at the time of the conduct.

The court reasoned that, in the absence of a legislative transitional provision to the contrary, a repealed law cannot be relied upon to sustain a criminal conviction for subsequent conduct. It described this as a consequence of the principle that there can be no crime without a law and no punishment without a law, expressed in the maxims nullum crimen sine lege and nulla poena sine lege. The court located these maxims within the broader principle of legality in South African criminal justice, and it referred to authority recognising legality as a controlling principle for criminal liability and punishment.

Applying these principles to the undisputed chronology, the court held that the Children’s Act 38 of 2005 was the operative statute for conduct occurring in 2011 and 2012, and that the Children’s Act contained no transitional provisions preserving, for future conduct, the sections of the Child Care Act 74 of 1983 under which the accused had been charged and convicted. As a result, the court concluded that the charges should have been framed under the Children’s Act, being the applicable law on the dates of the alleged offences, and that the convictions and sentences imposed under the repealed statute were legally defective.

The court’s evaluative conclusion was therefore that the convictions and sentences were not merely irregular in form but unsustainable in law, requiring the setting aside of both conviction and sentence, followed by remittal for trial afresh before a different presiding officer.

5. Outcome and Relief

The High Court set aside, in each matter, both the conviction and sentence imposed by the magistrate’s court under the Child Care Act 74 of 1983.

In respect of review case number 62/2013 (S v Adams), the matter was remitted to the magistrate’s court for a fresh trial before another trial magistrate.

In respect of review case number 63/2013 (S v Molejane), the matter was remitted to the magistrate’s court for a trial de novo before another trial magistrate.

No costs order was made in the text of the judgment.

Cases Cited

Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 304(4).

Child Care Act 74 of 1983.

Children’s Act 38 of 2005.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court found that convictions and sentences imposed under the Child Care Act 74 of 1983 for conduct committed after 1 April 2010 could not stand because the Child Care Act had been effectively repealed upon the coming into operation of the Children’s Act 38 of 2005, and there were no transitional provisions preserving the repealed provisions for future offences. On that basis, both convictions and sentences were set aside and the matters were remitted for trial afresh before different magistrates.

LEGAL PRINCIPLES

The judgment applied the principle of legality in criminal law, including the propositions captured by nullum crimen sine lege and nulla poena sine lege, namely that criminal liability and punishment must be founded on a valid, applicable legal norm.

It further applied the principle that, absent express transitional legislation, a repealed statute cannot sustain criminal prosecution, conviction, or punishment for conduct occurring after repeal, and that charges must be framed under the statute that is in force at the time of the alleged offence.