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)

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)

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 common law rape committed before the Act's commencement but reported or investigated after. The presumption against retrospectivity applies, and there is no express or implied intention in the Act to retrospectively repeal the common law crime of rape. The section does not create a lacuna or immunise offenders from prosecution. The High Court's declaration of constitutional invalidity was based on a misinterpretation of section 69, which, properly construed, does not violate constitutional rights or the Act's objectives. The order...

Citation
[2011] ZACC 22
Parties
Applicant: The State; Applicant: Minister for Justice and Constitutional Development; Respondent: Acting Regional Magistrate, Boksburg: Mr Phillip Venter; Respondent: Lucas van der Merwe
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
14 June 2011
Case Number
CCT 109/10
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Declaration of Constitutional Invalidity
Outcome
The order of constitutional invalidity granted by the High Court is not confirmed. Section 69 does not preclude prosecution for common law rape committed before 16 December 2007.
Judges
Mthiyane AJ, Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Van der Westhuizen J, Yacoob J
Legal Topics
Statutory Interpretation, Presumption Against Retrospectivity, Sexual Offences, Constitutional Invalidity, Transitional Provisions
Criminal Law Constitutional Law Statutory Interpretation Presumption Against Retrospectivity Sexual Offences Constitutional Invalidity Transitional Provisions

Case Brief

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Parties

The State

Applicant

Minister for Justice and Constitutional Development

Applicant

Acting Regional Magistrate, Boksburg: Mr Phillip Venter

Respondent

Lucas van der Merwe

Respondent

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Declaration of Constitutional Invalidity

Legal Issues

  1. 1 Does section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 preclude prosecution for common law rape committed before the Act's commencement but reported or investigated after?
  2. 2 Is section 69 inconsistent with the Constitution by creating a lacuna that immunises certain offenders from prosecution?
  3. 3 Should the High Court's declaration of constitutional invalidity of section 69 be confirmed?

Ratio Decidendi

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 common law rape committed before the Act's commencement but reported or investigated after. The presumption against retrospectivity applies, and there is no express or implied intention in the Act to retrospectively repeal the common law crime of rape. The section does not create a lacuna or immunise offenders from prosecution. The High Court's declaration of constitutional invalidity was based on a misinterpretation of section 69, which, properly construed, does not violate constitutional rights or the Act's objectives. The order...

Court Disposition

The order of constitutional invalidity granted by the High Court is not confirmed. Section 69 does not preclude prosecution for common law rape committed before 16 December 2007.

Orders

  • 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.
  • 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.