Lategan and Another v Director of Public Prosecutions, Western Cape and Another (314/2022) [2024] ZASCA 74; 2024 (2) SACR 227 (SCA) (10 May 2024)

Lategan and Another v Director of Public Prosecutions, Western Cape and Another (314/2022) [2024] ZASCA 74; 2024 (2) SACR 227 (SCA) (10 May 2024)

Sections 58, 59, and 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are procedural in nature and do not affect the substantive rights of accused persons. These provisions apply to future criminal proceedings, even where the underlying offences were committed before the Act's commencement but prosecuted thereafter. The presumption against retrospectivity does not bar the application of procedural rules to future trials. The regional magistrate's order to remove these sections from the charge sheet was a gross irregularity, properly subject to review rather than appeal. The High Court was correct in finding that the procedural provisions of the Act...

Citation
[2024] ZASCA 74
Parties
Appellant: Stephanus Petrus Lategan; Appellant: Johannes Retief Lategan; Respondent: Director of Public Prosecutions, Western Cape; Respondent: Regional Magistrate, Wynberg
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
10 May 2024
Case Number
314/2022
Procedural Posture
Criminal Appeal / Appeal From the Western Cape Division of the High Court, Cape Town, Following Review of a Regional Court Decision
Outcome
Appeal dismissed with costs, including costs consequent on the employment of two counsel.
Judges
Molemela, Hughes, Weiner, Windell, Keightley
Legal Topics
Sexual Offences, Retrospective Application, Procedural Vs Substantive Law, Review Vs Appeal, Criminal Evidence, Transitional Provisions
Criminal Law Sexual Offences Retrospective Application Procedural Vs Substantive Law Review Vs Appeal Criminal Evidence Transitional Provisions

Case Brief

Summary, issues, holding and outcome

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Parties

Stephanus Petrus Lategan

Appellant

Johannes Retief Lategan

Appellant

Director of Public Prosecutions, Western Cape

Respondent

Regional Magistrate, Wynberg

Respondent

Procedural Posture

Criminal Appeal / Appeal From the Western Cape Division of the High Court, Cape Town, Following Review of a Regional Court Decision

Legal Issues

  1. 1 Whether sections 58, 59, and 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 apply retrospectively to common law sexual offences committed before the Act but prosecuted after its commencement.
  2. 2 Whether the Director of Public Prosecutions was correct to proceed by way of review rather than appeal under section 310 of the Criminal Procedure Act.

Ratio Decidendi

Sections 58, 59, and 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are procedural in nature and do not affect the substantive rights of accused persons. These provisions apply to future criminal proceedings, even where the underlying offences were committed before the Act's commencement but prosecuted thereafter. The presumption against retrospectivity does not bar the application of procedural rules to future trials. The regional magistrate's order to remove these sections from the charge sheet was a gross irregularity, properly subject to review rather than appeal. The High Court was correct in finding that the procedural provisions of the Act...

Court Disposition

Appeal dismissed with costs, including costs consequent on the employment of two counsel.

Orders

  • The appeal is dismissed with costs, including costs consequent on the employment of two counsel.