CCT109/10

[2011] ZACC 22

2011 (2) SACR 274 (CC)

2012 (1) BCLR 5 (CC)

Mthiyane AJ

12 May 2011

14 June 2011

http://hdl.handle.net/20.500.12144/3635

This case concerns a declaration of constitutional invalidity of section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act by the South Gauteng High Court, Johannesburg. The order has been referred to the CC for confirmation in terms of section 172(2)(a) of the Constitution. The judgment is reported as S v Acting Regional Magistrate, Boksburg and Another 2011 (4) BCLR 443 (GSJ); 2011 (1) SACR 256 (GSJ); [2011] 2 All SA 452 (GSJ).

A referral for confirmation of the South Gauteng High Court’s order declaring section 69 (transitional provisions) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 constitutionally invalid because it precluded the investigation, prosecution and punishment of common law rape committed before the commencement of the Act but reported only afterwards. The Court refused confirmation. The transitional provisions were not constitutionally invalid. Section 69 did not retrospectively repeal common law rape, as it did not express or clearly imply this purpose, and therefore the presumption against retrospectivity prevailed. The section, in its plain meaning, did not apply at all to common law rape committed before the commencement of the Act but reported afterwards. Hence the provision did not need to be interpreted and invalidated. The Court found it inconceivable, in light of the purpose of the Act, that the section could be interpreted to render any sexual offence incapable of prosecution. Accordingly, the Court declined to confirm the order of constitutional invalidity. Instead, it declared that section 69 of the Act did not preclude the investigation, prosecution and punishment of common law rape committed before the commencement of the Act but reported afterwards. Judgment: Mthiyane AJ (unanimous).