S v De Freitas

• Jurisdiction: South Africa
• Judge: Selikowitz J
• Judgment Date: 05 February 1997
• Counsel: F Van Zyl (with him J L Abel) for the accussed R Berg for the State
• Hearing Date: 05 February 1997
• Court: Cape Provincial Division

Selikowitz J:

The accused in this matter was indicted by a summons issued on 28 September 1995 out of the magistrate's court, Cape Town. J

Selikowitz J

He was to stand trial in the regional court on one charge of rape and one charge of A attempted rape. Those charges were subsequently withdrawn in the regional court.

The accused was thereafter again charged and summoned to appear but in the High Court, and on two counts of rape and six counts of indecent assault. B

In the first count of rape the accused is alleged to have repeatedly raped Carlene Muscat during the period 1970 to 1973. In response to a request for further particulars the State has said that it is unable to state more precisely from which date in 1970 until which date in 1973 the alleged rapes were committed. C

The second count of rape involves one Patricia van Heerden, whom the State alleges was raped by the accused during the period 1973 to 1974. Here too, the State is unable to furnish more precise dates in regard to the incidents for which the accused is charged. D

The two counts of rape relate to the same incidents which were originally charged in the regional court and it is apparent that they were both committed more than 20 years prior to 28 September 1995, the earliest date upon which the accused was summoned to face the charges.

During October last year, and prior to the commencement of his trial before this Court on the two counts of rape and the six counts of indecent assault the accused filed a notice in terms of ss 106(1)(f) and 106(3) of the Criminal Procedure Act 1977, in E which he took issue with the State in regard to what was described in the notice as this Court's jurisdiction on the grounds that the prosecution had lapsed prior to its institution, by reason of the provisions of s 18 of the Criminal Procedure Act 51 of 1977. F

When the matter came before me and before any charges were put to the accused I ordered that the issue raised in the notice should first be determined. Despite the manner in which the notice is drawn it is common cause that it amounts to an application for an order declaring that the prosecution, on the two counts of rape, is barred and that the two counts ought to be set aside. G

Argument was then addressed to the Court and in view of the complexity of the matter, and the importance of the matter to the accused, the matter was postponed for further and more comprehensive argument which was addressed to the Court yesterday.

The issue before the Court is whether, as a result of the two counts of rape having been committed, so it is alleged by the State, more than 20 years before the accused H was charged, the State is precluded from prosecuting pursuant to the terms of s 18 of the Criminal Procedure Act of 1977.

In terms of our common law all offences prescribed after a period of 20 years from the date of the commission of the offence. This is recorded in the writings of Mattheus (1601-1654) in his De Criminibus 48.19.4.1, as also by Carpzovius (1595-1666) in I his Verhandeling der Lijfstrafflijke Misdaaden in Haare Berechtinge.

In our common law the prescription which was always 20 years runs on whether the complainant or the representative of the prosecuting authority knows about the crime or not, and the 20 year prescriptive period can be interrupted by the institution of a prosecution. See in this J

Selikowitz J

regard R v Magcayi 1951 (4) SA 356 (O); R v Friedman 1948 (2) SA 1034 (C). A

The earliest legislation which dealt with this subject is to be found in the Cape Colony in s 21 of Ordinance 40 of 1828 which altered the common law by providing that a prosecution for the crime of murder would not be barred as a result of a lapse of time, but that in respect of all other crimes the right to prosecute would lapse after the expiry B of a period of 20 years from the time the offence was committed.

After the Union and when the provincial Criminal Procedure Statutes were consolidated by the adoption of the Criminal Procedure Act 31 of 1917 the Cape position was perpetuated and it was again repeated in s 388 of Act 56 of 1955. C When Parliament passed the 1977 Criminal Procedure Act it altered the position and extended the crimes which would not be barred by the lapse of time to those '. . . in respect of which the sentence of death may be imposed'. That wording is to be found in s 18 of the Criminal Procedure Act 51 of 1977 which is currently in force.

For the sake of completeness I quote s 18 as follows: D

'1.

The right to institute a prosecution for any offence other than an offence in respect of which the sentence of death may be imposed shall, unless some other period is expressly provided by law, lapse after the expiration of a period of 20 years from the time when the offence was committed.

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