Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
14 June 2011

A sense of justice and common sense needed

Sometimes judges in our High Courts seem overly formalistic and proceed to declare invalid  legal provisions when this was not constitutionally required. Instead of using common sense to interpret the impugned legal provision in a manner that complied with the Constitution, the Court invalidates a legislative provision in a earnest but clumsy attempt to apply the Bill of Rights. It then falls on the Constitutional Court to bring some common sense to bear on the matter by declining to confirm an order of invalidity made by the High Court.

Today in S and Another v Acting Regional Magistrate, Boksburg: Mr Phillip Venter and Another the Constitutional Court, in a judgment authored by acting justice Mthiyane, declined to confirm the order of the High Court which declared invalid section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, which came into effect in December 2007. The facts which led to this judgment are rather peculiar.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act was passed to codify the crime of rape and to broaden the definition of rape to include the sexual penetration of a male, anal and oral penetration, as well as penetration with objects other than a penis, none of which were included under the common law.

The problem arose when a certain Mr Lucas van der Merwe was charged with the rape of a 3 year old girl in terms of the new Act for an alleged rape which occurred in 2005 – two years before the adoption of the Act. Mr Van der Merwe objected to the charge, arguing firstly, that he could not be charged with contravening section 3 of the new Act, because the Act only came into force on 16 December 2007 (over two years after the alleged rape was committed). (This argument was clearly correct and Mr van der Merwe should never have been charged in terms of the new Act, but in terms of the common law.) The second contention was that he could not be charged with common law rape either, because that crime no longer existed, having been repealed by the Act, almost two years before he was charged.

His arguments hinged on a specific interpretation of the transitional provisions contained in section 69 (read in conjunction with section 68) of the new Act, which he claimed kept the common law in operation only in respect of prosecutions instituted and investigations initiated before the commencement of the Act, and not in this case, where the criminal complaint was reported only after the commencement of the new Act.

Section 68(1)(b) of the Act repeals the common law crime of rape, among other offences, by stating that the common law relating to the crime of rape “is hereby repealed.” The result of this section is that rape committed after the commencement of the Act is punishable under the Act and not under the common law.

Section 69 contains certain transitional provisions, which keep the common law in force for the purposes of the disposal of any investigation, prosecution or other criminal proceedings instituted in relation to conduct committed prior to the commencement of the Act which would have constituted one of the common law crimes repealed by section 68 and states:

(1) All criminal proceedings relating to the common law crimes referred to in section 68(1)(b) which were instituted prior to the commencement of this Act and which are not concluded before the commencement of this Act must be continued and concluded in all respects as if this Act had not been passed.

(2) An investigation or prosecution or other legal proceedings in respect of conduct which would have constituted one of the common law crimes referred to in section 68(l)(b) which was initiated before the commencement of this Act may be concluded, instituted and continued as if this Act had not been passed.

(3) Despite the repeal or amendment of any provision of any law by this Act, such provision, for purposes of the disposal of any investigation, prosecution or any criminal or legal proceedings  contemplated in subsection (1) or (2), remains in force as if such provision had not been repealed or amended.

Mr Van der Merwe’s argument, in effect, was that this section had the effect of retrospectively repealing the common law crime of rape in cases where the rape occurred before December 2007 and where criminal proceedings had not yet been instituted or investigations had not yet been started. If this was the case, all rapes which had occurred before December 2007 and had only come to light after the adoption of the Act would not be punishable as the common law crime would have been appealed and could therefore not be relied upon, while the statutory crime would not have been applicable either.

The High Court agreed with this reading and (because this would obviously be untenable) declared section 69 of the Act invalid as it was found to infringe on the rights of rape survivors as guaranteed by section 12 and 28 of the Bill of Rights. The Constitutional Court disagreed with this interpretation, pointing out that section 68 of the new Act did not repeal the crime of rape retrospectively.

If it did, that would result in the extinction of criminal liability incurred before the commencement of the Act. However, in our common law there is a presumption against retrospectivity. It is presumed that a statute does not operate retrospectively, unless a contrary intention is indicated, either expressly or by clear implication. This presumption is consistent with the fair trial provisions of the Constitution.

This must surely be right. One of the basic tenets of the Rule of Law is that the law must be clearly stated and certain in order for citizens to act in accordance with the law. Just as the retrospective creation of a crime would be highly problematic, so should the retrospective extinction of a crime by the legislature be frowned upon.

But what about section 69, which only dealt with cases of rape which had already  been reported or investigated and not with cases of rape that only later came to light? Was the High Court correct to find that this section – because it had failed to mention such cases – had in effect retrospectively annulled the application of the common law crime of rape to such cases? Once again, the Constitutional Court – using some common sense – found that it had not.

It pointed out that section 69, on its face, makes no mention at all of crimes committed before the commencement of the Act but only reported or investigated thereafter. Its immediate meaning, so the Court argued, should surely be that those cases are not at all affected by its terms.

The threshold question is whether section 69 was enacted to cover the entire field of prosecutions for common law rape. It clearly was not. Given its plain meaning, the section does not apply to prosecutions not yet instituted. Those prosecutions are not precluded. The presumption that the statute did not amend the prior position more than necessary is therefore preserved. Accordingly, it was not necessary to interpret and ultimately to invalidate section 69. It is clear from the face and context of section 69 that it does not confer prosecutorial power on the State in respect of common law crimes, but rather confirms it. It would therefore be inappropriate to interpret it as a provision that could curtail the State‟s prosecutorial power, which is sourced elsewhere: in the National Prosecuting Authority Act and, ultimately, the Constitution.

As I see it, the High Court erred by not reading section 69 in conjunction with section 68 or, alternatively, by wrongly assuming that section 68 had retrospective effect. It is obvious from reading the Act that the legislature did not have the intention of letting alleged rapists like Mr van der Merwe off the hook merely because their alleged crimes had not yet been reported or investigated.

Sometimes, some common sense and a sense of justice is all that is required to properly interpret the provisions of an Act in order to ensure that crimes do not go unpunished. That is what the High Court had failed to do and what the Constitutional Court in fact did when it delivered judgment today.

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