Free v S (06/2010) [2010] ZANCHC 13 (30 April 2010)

Free v S (06/2010) [2010] ZANCHC 13 (30 April 2010)

The court held that charging the accused under the Sexual Offences and Related Matters Amendment Act, 32 of 2007, for an offence committed before its commencement was irregular, but did not prejudice the accused as he admitted all elements of the common law crime of rape and was legally represented. The rape conviction and sentence were confirmed, with the statutory reference deleted to reflect the common law crime. The kidnapping conviction was set aside due to the procedural irregularity of failing to allow the accused and the State to address the court before judgment, which infringed the accused's right to a fair trial under section 35(3) of the Constitution. The accused's name was...

Citation
[2010] ZANCHC 13
Parties
Applicant: Wandry Free; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
30 April 2010
Case Number
06/2010
Procedural Posture
Review Application / Special Review Under Section 304 of the Criminal Procedure Act
Outcome
Rape conviction and sentence confirmed with statutory reference deleted; kidnapping conviction set aside; accused to be brought before the same magistrate for further proceedings; name to be expunged from the Register of Sexual Offenders.
Judges
BM Pakati, M Phatshoane
Legal Topics
Rape, Kidnapping, Sexual Offences Amendment Act, Fair Trial Rights, Retrospectivity, Register of Sexual Offenders
Criminal Law Rape Kidnapping Sexual Offences Amendment Act Fair Trial Rights Retrospectivity Register of Sexual Offenders

Case Brief

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Parties

Wandry Free

Applicant

The State

Respondent

Procedural Posture

Review Application / Special Review Under Section 304 of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the accused's conviction for rape under the Sexual Offences and Related Matters Amendment Act was valid given the date of the offence.
  2. 2 Whether the accused was prejudiced by being charged under the incorrect statutory provision for rape.
  3. 3 Whether the failure to allow the accused and the State to address the court before judgment on the kidnapping charge constituted an irregularity affecting the right to a fair trial.

Ratio Decidendi

The court held that charging the accused under the Sexual Offences and Related Matters Amendment Act, 32 of 2007, for an offence committed before its commencement was irregular, but did not prejudice the accused as he admitted all elements of the common law crime of rape and was legally represented. The rape conviction and sentence were confirmed, with the statutory reference deleted to reflect the common law crime. The kidnapping conviction was set aside due to the procedural irregularity of failing to allow the accused and the State to address the court before judgment, which infringed the accused's right to a fair trial under section 35(3) of the Constitution. The accused's name was...

Court Disposition

Rape conviction and sentence confirmed with statutory reference deleted; kidnapping conviction set aside; accused to be brought before the same magistrate for further proceedings; name to be expunged from the Register of Sexual Offenders.

Orders

  • The conviction and sentence of the accused on the charge of rape is confirmed, but the words 'ingevolge artikel Wet 32/2007' are deleted from the conviction to accord with the common law crime of rape.
  • The kidnapping conviction on Count 1 is set aside. The accused must be brought before the same Regional Magistrate (Mr P S Hole) within three weeks to allow the State and the defence to address the court and to deal with the case in accordance with the law.