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[2011] ZACC 22
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S and Another v Acting Regional Magistrate, Boksburg: Venter and Another (CCT 109/10) [2011] ZACC 22; 2011 (2) SACR 274 (CC); 2012 (1) BCLR 5 (CC) (14 June 2011)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 109/10
[2011] ZACC 22
In the matter between:
THE STATE
….............................................................................................
First
Applicant
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
….............................................
Second
Applicant
and
ACTING REGIONAL MAGISTRATE,
BOKSBURG: MR PHILLIP VENTER
…................................................
First
Respondent
LUCAS VAN DER MERWE
…...........................................................
Second
Respondent
Heard on : 12 May 2011
Decided on : 14 June 2011
JUDGMENT
MTHIYANE AJ:
Introduction
This
case concerns a declaration of constitutional invalidity of section
69 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act
1
(Act) by the South Gauteng High Court,
Johannesburg (High Court).
2
The order has been referred to this Court for
confirmation in terms of section 172(2)(a) of the Constitution.
3
More particularly, the case concerns the
interpretation of statutory provisions that purport to repeal common
law crimes, to replace
them with statutory crimes, and to regulate
the transition.
The
Act was passed, according to its long title, to “comprehensively
and extensively review and amend all aspects of the
laws and the
implementation of the laws relating to sexual offences, and to deal
with all legal aspects of or relating to sexual
offences in a single
statute” by, amongst other things, “repealing the common
law offence of rape and replacing it
with a new expanded statutory
offence of rape, applicable to all forms of sexual penetration
without consent, irrespective of
gender”.
4
This was necessary because pre-existing common
law and statutory law did “not deal adequately, effectively
and in a non-discriminatory
manner” with the commission of
sexual offences, and hence failed “to provide adequate and
effective protection to
the victims of sexual offences thereby
exacerbating their plight through secondary victimisation and
traumatisation”.
5
The
Act now seeks to codify the crime of rape as the unlawful and
intentional commission by any person of an act of sexual penetration
with any other person, without the latter’s consent.
6
The definition of rape has thus been considerably
broadened to include the sexual penetration of a male, anal and oral
penetration,
as well as penetration with objects other than a penis,
none of which were included under the common law.
7
Section
68(1)(b) of the Act repeals the common law crime of rape, among
other offences, with the result that rape committed after
the
commencement of the Act is punishable under the Act and not under
the common law.
8
The Act entered into force on 16 December 2007.
9
Section 69 contains certain transitional
provisions, which keep the common law in force for the purposes of
the disposal of any
investigation, prosecution or other criminal
proceedings instituted in relation to conduct committed prior to the
commencement
of the Act which would have constituted one of the
common law crimes repealed by section 68.
10
This
case concerns the interpretation and interaction of these
provisions, but before turning to the questions that this raises,
it
will be useful to trace the procedural history of the matter.
In the Magistrates’ Court
In
February 2009, a criminal complaint of rape was laid against the
second respondent, Mr van der Merwe (accused person). In July
2009,
he was arrested and, in September 2009, he was brought before the
first respondent in the Regional Magistrates’ Court,
Boksburg
(Magistrates’ Court) and charged with the crime of rape in
contravention of section 3 of the Act. The State alleged
that the
accused person had, in September 2005, unlawfully and intentionally
committed an act of sexual penetration with the
complainant by
inserting his penis into her vagina without her consent. The
complainant is Ms M, a girl who was three years old
at the time of
the alleged rape, and six years old at the time the charge was laid.
The
accused person objected to the charge, contending that it did not
disclose an offence.
11
He argued, firstly, that he could not be charged
with contravening section 3, because the Act only came into force on
16 December
2007 (over two years after the alleged rape was
committed). The second contention was that he could not be charged
with common
law rape either, because that crime no longer existed,
having been repealed by the Act, almost two years before he was
charged.
The accused person contended that the transitional
provisions in section 69 kept the common law in operation only in
respect
of prosecutions instituted and investigations initiated
before the commencement of the Act, and not in this case, where the
criminal
complaint was reported only after the commencement.
The
Magistrates’ Court upheld the objection, holding that section
69 creates a
lacuna
,
in that it does not provide for prosecution in circumstances where
the alleged crime was committed before the Act came into
force but
the investigation was initiated after that date. The Court
considered that it was precluded from pronouncing on the
validity of
any law, by section 110 of the Magistrates’ Courts Act,
12
and therefore remanded the matter to enable the
State to approach the High Court.
In the High Court
Under
section 310(2) of the Criminal Procedure Act,
13
the State appealed to the High Court against the
ruling. It contended that the objection should not have been upheld,
for two
reasons. Firstly, “rape (whether in common law or
statutory law) was at all relevant times a crime under both national
and international law” and was thus chargeable under the Act
in conformity with section 35(3)(l) of the Constitution.
14
The second reason advanced was that section 69
did not apply in the circumstances of this case and thus did not
need to be scrutinised
for constitutional validity.
However,
the High Court held that the Magistrates’ Court had correctly
upheld the objection,
15
since section 69 precludes prosecution and
punishment of common law rape committed before the commencement of
the Act but only
reported afterwards.
16
The Court held that this resulted in a violation
of the rights in sections 12(1)(c) and (e),
17
12(2)(b)
18
and 28(1)(d)
19
of the Constitution, and rendered section 69
unconstitutional.
20
The High Court reasoned as follows:
“
The
facts under consideration in this appeal expose a material flaw in
the wording of the transitional provisions of [the Act],
which render
them to be unconstitutional. The unintended, but absurd, consequence
of an entirely unnecessary limitation in the
wording of those
provisions is that sex crimes which were punished in terms of the
common law, have become immune from prosecution
depending on whether
they were reported, or the investigation thereof commenced, after the
Act came into force. Where the investigation
was not instituted by
the date when the Act became effective, namely 16 December 2007, the
violence, cruel, inhuman and degrading
treatment which victims of
such offences suffered at the hands of the perpetrators, would escape
prosecution.”
21
Consequently,
the High Court dismissed the appeal, declared section 69
unconstitutional, and ordered the severance from the section
of
those words that it found to preclude the prosecution of common law
crimes committed before the commencement of the Act but
reported or
investigated afterwards.
22
In this Court
The
Registrar of the High Court referred the order of constitutional
invalidity for confirmation by this Court.
23
This Court made an order joining the Minister for
Justice and Constitutional Development (Minister) as a party to
these proceedings.
24
This was necessary because he is the Minister
responsible for the administration of the Act.
25
The Court also issued directions requiring
written submissions.
26
The
State and the Minister both oppose confirmation of the order of
constitutional invalidity, contending that section 69 of the
Act was
intended, and should be interpreted, to regulate only those cases
that were already in the justice system at the time
the Act came
into force, and not those cases that had yet to enter the system.
The accused person supports the confirmation.
He contends that the
section cannot reasonably be interpreted as being consistent with
the Constitution. The explicit inclusion
of initiated investigations
and instituted prosecutions in the category of cases to be dealt
with in terms of the common law
necessarily implied, so the argument
ran, the exclusion of as yet unreported or uninvestigated cases from
that category, relying
on the maxim ‘the express inclusion of
the one implies the exclusion of the other’.
27
The impugned provisions
It is
helpful to set out section 69 in full, as this case turns on the
proper interpretation of its provisions:
“
(1)
All criminal proceedings relating to the common law crimes referred
to in section 68(1)(b) which were instituted prior to the
commencement of this Act and which are not concluded before the
commencement of this Act must be continued and concluded in all
respects as if this Act had not been passed.
(2) An investigation or
prosecution or other legal proceedings in respect of conduct which
would have constituted one of the common
law crimes referred to in
section 68(1)(b) which was initiated before the commencement of this
Act may be concluded, instituted
and continued as if this Act had not
been passed.
(3) Despite the repeal or
amendment of any provision of any law by this Act, such provision,
for purposes of the disposal of any
investigation, prosecution or any
criminal or legal proceedings contemplated in subsection (1) or (2),
remains in force as if such
provision had not been repealed or
amended.”
Issues for determination by this Court
The
High Court held section 69 to be inconsistent with the Constitution
on the basis that it precludes the prosecution of common
law rape
committed before the commencement of the Act but reported or
investigated only afterwards. Accordingly, the essential
question
that demands determination by this Court is whether section 69 does
indeed have that effect. Answering this question
requires us to
consider the interaction and interpretation of sections 68 and 69 of
the Act in order to ascertain whether they
have the combined effect
of repealing the common law crime of rape retrospectively.
Do sections 68 and 69 retrospectively repeal the common law crime
of rape?
Section 68(1)(b) of the Act provides that the
common law relating to the crime of rape “is hereby
repealed.”
28
This section does not specify that the crime is
repealed retrospectively. If it did, that would result in the
extinction of criminal
liability incurred before the commencement of
the Act. However, in our common law there is a presumption against
retrospectivity.
It is presumed that a statute does not operate
retrospectively, unless a contrary intention is indicated, either
expressly or
by clear implication.
29
This presumption is consistent with the fair
trial provisions of the Constitution,
30
and was approved by this Court in
Veldman
.
31
There
is nothing express or implied in section 68 to the effect that the
common law crime of rape is repealed retrospectively.
The question
remains whether the impugned provisions, namely those of section 69,
have that effect.
In
Du Toit
,
32
this Court observed that the presumption against
retrospectivity “stems from the belief that at some point the
State, the
parties and third parties are entitled to rely on a
common understanding”.
33
It is significant that section 69, on its face,
makes no mention at all of crimes committed before the commencement
of the Act
but only reported or investigated thereafter. Its
immediate meaning, therefore, should surely be that those cases are
not at
all affected by its terms.
The
threshold question is whether section 69 was enacted to cover the
entire field of prosecutions for common law rape. It clearly
was
not. Given its plain meaning, the section does not apply to
prosecutions not yet instituted. Those prosecutions are not
precluded. The presumption that the statute did not amend the prior
position more than necessary is therefore preserved.
34
Accordingly, it was not necessary to interpret
and ultimately to invalidate section 69.
It
is clear from the face and context of section 69 that it does not
confer
prosecutorial
power on the State in respect of common law crimes, but rather
confirms
it.
It would therefore be inappropriate to interpret it as a provision
that could
curtail
the
State’s prosecutorial power, which is sourced elsewhere: in
the National Prosecuting Authority Act
35
and, ultimately, the Constitution.
36
Moreover,
in the face of a presumption that common law rape committed before
the commencement of the Act remained a crime capable
of prosecution
by the State, it is inconceivable that section 69 could convey a
contrary intention. The purpose is made manifest
throughout the
statute, particularly in its long title, its preamble, and its
objects.
37
The Act proclaims its purpose “to afford
complainants of sexual offences the maximum and least traumatising
protection that
the law can provide”, and “to introduce
measures which seek to enable the relevant organs of state to give
full effect
to the provisions of this Act”, by “criminalising
all forms of sexual abuse or exploitation”.
38
In
the light of these objects stated within the four corners of the Act
itself, it is impossible to interpret the provisions to
render any
sexual offences incapable of prosecution. In
New
Clicks
,
39
this Court approved the rule laid down in
Venter
v R
,
40
that a court may depart
from
the clear language of a statute where it—
“
would
lead to absurdity so glaring that it could never have been
contemplated by the legislature, or where it would lead to a result
contrary to the intention of the legislature, as shown by the context
or by such other considerations as the Court is justified
in taking
into account”.
41
In
this case, given that the clear language does not lead to absurdity,
there was no reason for the High Court to depart from the
plain
meaning of section 69.
Accordingly, section 69 is incapable of
disclosing a contrary purpose. The presumption against
retrospectivity must therefore prevail.
Our
Constitution sets its face firmly against all violence, and in
particular sexual violence against vulnerable children, women
and
men. Given this, and the Act’s emphasis on dignity, protection
against violence against the person, and in particular
the
protection of women and children, it is inconceivable that the
provision could exonerate and immunise from prosecution acts
that
violated these interests. It follows that the High Court’s
declaration of constitutional invalidity cannot be confirmed,
and
that the accused person could and should have been charged under the
common law.
Order
The
following order is made:
1. The order of constitutional invalidity of section
69
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, granted by the South Gauteng High Court,
Johannesburg, in Case No A11/2010 on 3 December 2010, is not
confirmed.
2.
It is declared that
section 69
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007
does not preclude the investigation, prosecution or
punishment of the common law offence of rape committed before 16
December 2007.
Ngcobo CJ,
Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Mogoeng J, Nkabinde J,
Van der Westhuizen J and Yacoob J concur in the
judgment of Mthiyane AJ.
For the First Applicant: Adv CE Britz instructed by the Director of
Public Prosecutions.
For the Second Applicant: Adv P Nkutha instructed
by the State Attorney.
For the Second Respondent: Adv S Budlender, Adv M
Miller and Adv W Karam instructed by Legal Aid South Africa.
1
32
of 2007.
2
S
v Acting Regional Magistrate, Boksburg and Another
2011 (4) BCLR
443
(GSJ);
2011 (1) SACR 256
(GSJ);
[2011] 2 All SA 452
(GSJ)
(Mokgoatlheng J and Badenhorst AJ) (High Court judgment).
3
Section
172(2)(a) of the Constitution provides:
“
The Supreme Court of Appeal, a High Court or a
court of similar status may make an order concerning the
constitutional validity
of an Act of Parliament, a provincial Act or
any conduct of the President, but an order of constitutional
invalidity has no force
unless it is confirmed by the Constitutional
Court.”
4
Long
title of the Act.
5
Preamble
to the Act.
6
Section
3 of the Act reads as follows:
“
Any person (‘A’)
who unlawfully and intentionally commits an act of sexual
penetration with a complainant (‘B’),
without the
consent of B, is guilty of the offence of rape.”
Section
1 of the Act defines “sexual penetration” to include—
“
any act which causes
penetration to any extent whatsoever by—
(a) the genital organs of one person into or beyond the
genital organs, anus, or mouth of another person;
(b) any other part of the body of one person or, any
object, including any part of the body of an animal, into or beyond
the genital
organs or anus of another person; or
(c) the genital organs of an animal, into or beyond the
mouth of another person”.
7
See
for example Burchell
Principles of
Criminal Law
(3 ed) (Juta, Cape Town
2005) at 705-6, where common law rape is defined as the “intentional
unlawful sexual intercourse
with a woman without her consent”,
and sexual intercourse is defined as “penetration of the
woman’s vagina
by the male’s penis.”
8
Section
68(1)(b) reads as follows:
“
The common law relating to
the—
. . .
(b)
crimes of rape, indecent
assault, incest, bestiality and violation of a corpse, insofar as it
relates to the commission of a sexual
act with a corpse,
is hereby repealed.”
9
Section
72(1) of the Act.
10
The
text of section 69 is quoted in full at [14] below.
11
Section
85(1)(c)
of the
Criminal Procedure Act 51 of 1977
provides:
“
An accused [person] may,
before pleading to the charge under
section 106
, object to the
charge on the ground—
. . .
(c)
that the charge does not
disclose an offence”.
12
Section
110
of the
Magistrates’ Courts Act 33 of 1944
provides:
“
(1) A court shall not be
competent to pronounce on the validity of any law or conduct of the
President.
(2) If in any proceedings before a court it is alleged
that—
(a) any law or any conduct of the President is invalid
on the grounds of its inconsistency with a provision of the
Constitution;
or
(b) any law is invalid on any ground other than its
constitutionality,
the court shall decide the matter on the assumption
that such law or conduct is valid: Provided that the party which
alleges that
a law or conduct of the President is invalid, may
adduce evidence regarding the invalidity of the law or conduct in
question.”
13
Section
310 provides in relevant part:
“
(1) When a lower court has in
criminal proceedings given a decision in favour of the accused on
any question of law, including
an order made under section 85(2),
the attorney-general or, if a body or a person other than the
attorney-general or his representative,
was the prosecutor in the
proceedings, then such other prosecutor may require the judicial
officer concerned to state a case
for the consideration of the
provincial or local division having jurisdiction, setting forth the
question of law and his decision
thereon and, if evidence has been
heard, his findings of fact, in so far as they are material to the
question of law.
(2) When such case has been stated, the
attorney-general or other prosecutor, as the case may be, may appeal
from the decision
to the provincial or local division having
jurisdiction.”
14
Section
35(3)(l) provides:
“
Every accused person has a
right to a fair trial, which includes the right—
. . .
(l) not to be convicted for an act or omission that was
not an offence under either national or international law at the
time
it was committed or omitted”.
15
High
Court judgment at para 12.
16
Id
at para 18.
17
Section
12(1)(c) and (e) provides:
“
Everyone has the right to
freedom and security of the person, which includes the right—
. . .
(c) to be free from all forms of violence from either
public or private sources;
. . .
(e) not to be treated . . . in a cruel, inhuman or
degrading way.”
18
Section
12(2)(b) provides:
“
Everyone has the right to
bodily and psychological integrity, which includes the right—
. . .
(b) to security in and control over their body”.
19
Section
28(1)(d) provides:
“
Every child has the right—
. . .
(d) to be protected from maltreatment, neglect, abuse
or degradation”.
20
High
Court judgment at paras 17-8.
21
Id
at para 2.
22
Id
at para 24. The order provides in relevant part:
“
1. The appeal against the
ruling by the acting regional Magistrate, Boksburg on 4 June 2010
when he upheld the objection against
the charge sheet, is dismissed.
2. The words underlined in the following quotation of
section 69 of the Criminal Law (Sexual Offences and Related Matters)
Amendment
Act 32 of 2007 (‘the Act’), are declared to be
inconsistent with the Constitution and with the objectives of the
Act and are thus to be deleted therefrom:
‘
69. Transitional provisions
(1) All criminal proceedings relating to the common law
crimes referred to in section 68(1)(b)
which were instituted
prior to the commencement of this Act
and which are not
concluded before the commencement of this Act must be continued and
concluded in all respects as if this Act
had not been passed.
(2) An investigation or prosecution or other legal
proceedings in respect of conduct which would have constituted one
of the common
law crimes referred to in section 68(l)(b)
which
was initiated before the commencement of this Act
may be
concluded, instituted and continued as if this Act had not been
passed.
(3) Despite the repeal or amendment of any provision of
any law by this Act, such provision, for purposes of the disposal of
any
investigation, prosecution or any criminal or legal proceedings
contemplated in subsection (1) and (2), remains in force as if
such
provision had not been repealed or amended.’
3. The orders in paragraph 2 above will only come into
effect from the moment when such order is confirmed by the
Constitutional
Court.
4. This judgment and Orders are referred to the
Constitutional Court for consideration and, if deemed appropriate,
confirmed in
terms of section 172 of the Constitution.”
23
See
above n 3.
24
Order
dated 16 February 2011.
25
Section
1(1) of the Act defines “Minister” as “
the
cabinet member responsible for the administration of justice
”.
26
The
directions dated 1 February 2011 required written argument to
include submissions on the following issues
:
“
(a) whether the impugned
sections are reasonably capable of a construction that renders them
consistent with the Constitution
and, if so, whether that
construction should be adopted; and
(b) if this Court were to hold that the impugned
provision is inconsistent with the Constitution and that the order
of severance
granted by the High Court is appropriate, whether it is
in the interests of justice for that order to apply
retrospectively.”
27
Expressio
unius est exclusio alterius
.
28
See
above n 8.
29
See
25(1)
LAWSA
(first reissue) at 344-7 (para 329);
National
Director of Public Prosecutions v Carolus and Others
2000 (1) SA
1127
(SCA) at paras 31-2;
Katzenellenbogen
Ltd v Mullin
1977
(4) SA 855
(A)
at 884A-B;
R v Sillas
1959 (4) SA 305
(A) at
309H-310A;
Bareki NO and Another v Gencor Ltd and Others
2006
(1) SA 432
(T) at 438J-439E;
S v Koukoulas
1970 (2) SA 477
(T) at 479H
; and
Curtis v Johannesburg Municipality
1906 TS 308
at 311
.
30
See
section 35(3)(l) of the Constitution, quoted in full above n 14.
31
Veldman
v Director of Public Prosecutions, Witwatersrand Local Division
[2005] ZACC 22
;
2007 (3) SA 210
(CC);
2007 (9) BCLR 929
(CC) at
paras 26-7. See also
Van Vuren v Minister for Correctional
Services and Others
[2010] ZACC 17
;
2010 (12) BCLR 1233
(CC) at
para 52; and
S v Mhlungu and Others
[1995] ZACC 4
;
1995 (3)
SA 867
(CC);
1995 (7) BCLR 793
(CC) at paras 37-8
.
32
Du
Toit v Minister for Safety and Security and Another
[2009] ZACC
22
;
2009 (6) SA 128
(CC);
2009 (12) BCLR 1171
(CC).
33
Id
at fn 23. This Court cited
Wijesuriya v Amit
[1965] 3 All E
R 701
at
703B, where the Privy Council held:
“
It must be shown that the
enacting words clearly cover the case to which it is sought to apply
them. The court will no doubt prefer
an interpretation which gives
effect to the [provision], rather than one which denies it any
efficacy, but it will not strain
the language used, nor will it
rewrite or adapt it to cover cases other than those to which it
clearly applies.”
A
similar approach has been adopted in
National
Director of Public Prosecutions v Basson
2002 (1) SA 419
(SCA) and
Bell v
Voorsitter van die Rasklassifikasieraad en Andere
1968
(2) SA 678
(A) at 683E-F.
34
See
25(1)
LAWSA
(first reissue) at 341-4 (para 328);
Law
Society of the Cape of Good Hope v C
1986 (1) SA 616
(A) at
639E;
Bills of Costs (Pty) Ltd and Another v The Registrar,
Cape, NO and Another
1979 (3) SA 925
(A) at 942D-E;
Dhanabakium v Subramanian and Another
1943 AD 160
at 167;
Skyway Management Ltd v Telkom Suid-Afrika Bpk
2001 (2) SA
780
(T) at 784H-I;
Kaplan v Incorporated Law Society,
Transvaal
1981 (2) SA 762
(T) at 770D-F;
Rand Bank Bpk v
Regering van die Republiek van Suid-Afrika en Andere
1974 (4) SA
764
(T) at 767D-F;
Casserley v Stubbs
1916 TPD 310
at 312;
and
Johannesburg Municipality v Cohen’s Trustees
1909
TS 811
at 823.
35
32
of 1998 at section 20.
36
Section
179(2) of the Constitution.
37
The
objects are set out in section 2 of the Act.
38
Section
2(b) of the Act.
39
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as Amici
Curiae)
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at para
232.
40
1907
TS 910.
41
Id
at 915.