S v Acting Regional Magistrate, Venter and Another (A11/2010) [2010] ZAGPJHC 126; 2011 (1) SACR 256 (GSJ) ; 2011 (2) SA 455 (GSJ) ; 2011 (4) BCLR 443 (GSJ) ; [2011] 2 All SA 452 (GSJ) (3 December 2010)

S v Acting Regional Magistrate, Venter and Another (A11/2010) [2010] ZAGPJHC 126; 2011 (1) SACR 256 (GSJ) ; 2011 (2) SA 455 (GSJ) ; 2011 (4) BCLR 443 (GSJ) ; [2011] 2 All SA 452 (GSJ) (3 December 2010)

The court held that the transitional provisions of section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, as worded, create an unconstitutional gap by preventing prosecution of common law rape committed before the Act but reported or investigated after its commencement. This result is inconsistent with the Constitution and the objectives of the Act, as it denies justice to victims and undermines the protection of vulnerable persons. The court ordered that the offending words in section 69 be severed, allowing prosecution of such offences to proceed. The magistrate's ruling upholding the objection to the charge sheet was correct, but the order is...

Citation
[2010] ZAGPJHC 126
Parties
Appellant: The State; Respondent: Mr Phillip Venter (Acting Regional Magistrate, Boksburg); Respondent: Lucas van der Merwe
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
3 December 2010
Case Number
A11/2010
Procedural Posture
Criminal Appeal / Appeal Against a Regional Magistrate's Ruling Upholding an Objection to the Charge Sheet Prior to Plea.
Outcome
Appeal dismissed. The words in section 69 of the Act declared unconstitutional and severed, subject to confirmation by the Constitutional Court.
Judges
Mokgoatlheng, Badenhorst
Legal Topics
Transitional Provisions, Sexual Offences, Common Law Rape, Constitutional Invalidity, Reading in Remedy
Criminal Law Constitutional Law Transitional Provisions Sexual Offences Common Law Rape Constitutional Invalidity Reading in Remedy

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Parties

The State

Appellant

Mr Phillip Venter (Acting Regional Magistrate, Boksburg)

Respondent

Lucas van der Merwe

Respondent

Procedural Posture

Criminal Appeal / Appeal Against a Regional Magistrate's Ruling Upholding an Objection to the Charge Sheet Prior to Plea.

Legal Issues

  1. 1 Whether the transitional provisions of section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are unconstitutional by preventing prosecution of common law rape committed before the Act but reported or investigated after its commencement.
  2. 2 Whether the accused could be charged with statutory rape under section 3 of the Act for conduct committed before the Act came into force.
  3. 3 Whether the regional magistrate's order upholding the objection to the charge sheet is final and appealable.

Ratio Decidendi

The court held that the transitional provisions of section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, as worded, create an unconstitutional gap by preventing prosecution of common law rape committed before the Act but reported or investigated after its commencement. This result is inconsistent with the Constitution and the objectives of the Act, as it denies justice to victims and undermines the protection of vulnerable persons. The court ordered that the offending words in section 69 be severed, allowing prosecution of such offences to proceed. The magistrate's ruling upholding the objection to the charge sheet was correct, but the order is...

Court Disposition

Appeal dismissed. The words in section 69 of the Act declared unconstitutional and severed, subject to confirmation by the Constitutional Court.

Orders

  • The appeal against the ruling by the acting regional Magistrate, Boksburg on 4 June 2010 is dismissed.
  • The words identified in section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are declared inconsistent with the Constitution and deleted.