S and Another v Acting Regional Magistrate, Boksburg, and Another

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Mthiyane AJ, Nkabinde J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 14 June 2011
• Citation: 2011 (2) SACR 274 (CC)
• Hearing Date: 12 May 2011
• Docket Number: CCT 109/2010
• Counsel: CE Britz (DPP, Johannesburg) for the first applicant (the State). P Nkutha for the second applicant. No appearance for the first respondent. S Budlender (with M Miller and W Karam) for the second respondent.

Mthiyane AJ (Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Van der Westhuizen J and Yacoob J concurring):

Introduction C

[1] This case concerns a declaration of constitutional invalidity of s 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 s 172(2)(a) of the Constitution. [3] More particularly, the case concerns the interpretation of statutory provisions that purport to repeal D common-law crimes, to replace them with statutory crimes, and to regulate the transition.

[2] The Act was passed, according to its long title, to —

'comprehensively and extensively review and amend all aspects of the E 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 F 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 G adequate and effective protection to the victims of sexual offences thereby exacerbating their plight through secondary victimisation and traumatisation'. [5]

Mthiyane AJ

A [3] 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 B with objects other than a penis, none of which were included under the common law. [7]

[4] 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 C 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 D have constituted one of the common-law crimes repealed by s 68. [10]

[5] This case concerns the interpretation and interaction of these provisions, but before turning to the questions that this raises, it will be E useful to trace the procedural history of the matter.

Mthiyane AJ

In the magistrates' court A

[6] 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. In September 2009 he was brought before the first respondent in the regional magistrates' court, Boksburg (magistrates' B court), and charged with the crime of rape in contravention of s 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 3 years old at the time of the alleged rape, and 6 years old at the time the charge C was laid.

[7] 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 s 3 because the Act only came into force on 16 December 2007 — over two years after the alleged rape was committed. D 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 s 69 kept the common law in operation only in respect of prosecutions instituted and investigations initiated before the commencement of the Act, and E not in this case — where the criminal complaint was reported only after the commencement.

[8] The magistrates' court upheld the objection, holding that s 69 creates a lacuna in that it does not provide for prosecution in circumstances F 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 s 110 of the Magistrates' Courts Act, [12] and therefore remanded the matter to enable the State to approach the High Court.

Mthiyane AJ

In the High Court A

[9] Under s 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 B both national and international law' and was thus chargeable under the Act in conformity with s 35(3)(l) of the Constitution. [14] The second reason advanced was that s 69 did not apply in the circumstances of this case and thus did not need to be scrutinised for constitutional validity.

[10] However, the High Court held that the magistrates' court had C correctly upheld the objection, [15] since s 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 ss 12(1)(c) and (e), [17] 12(2)(b) [18]

Mthiyane AJ

and 28(1)(d) [19] of the Constitution, and rendered s 69 unconstitutional. A [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 B 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 C violence, cruel, inhuman and degrading treatment which victims of such offences suffered at the hands of the perpetrators, would escape prosecution.' [21]

[11] Consequently, the High Court dismissed the appeal, declared s 69 unconstitutional, and ordered the severance from the section of D 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]

Mthiyane AJ

In this court A

[12] 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 B (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]

[13] The State and the Minister both oppose confirmation of the order of constitutional invalidity, contending that s 69 of the Act was intended, C 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 D ...