The State and Another v Acting Regional Magistrate, Boksburg and Another

A criminal complaint of rape was laid in 2009 against Lucas van der Merwe for alleged conduct committed in 2005 against a three-year-old child. He was charged under section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which came into force on 16 December 2007 and repealed the common law crime of rape. The accused objected that he could not be charged under the Act because it was not in force at the time of the alleged offence, and that he could not be charged with common law rape because it had been repealed. The Magistrates’ Court upheld the objection, finding that section 69 of the Act created a lacuna for offences committed before the Act but reported afterwards. The State appealed. The High Court dismissed the appeal, declared section 69 unconstitutional, and ordered severance of wording that allegedly precluded prosecution. That declaration of invalidity was referred to the Constitutional Court for confirmation.

The Constitutional Court refused to confirm the High Court’s declaration of constitutional invalidity. Section 69 of the Act was held to be constitutionally valid, and the High Court’s order of severance was not confirmed.

The case clarifies the interpretation of transitional provisions when common law crimes are repealed and replaced by statute, reaffirming the strong presumption against retrospectivity in South African law. It confirms that repeal of a common law offence does not, without clear language, extinguish liability for acts committed before repeal. The judgment prevents unintended immunity for serious sexual offences and underscores constitutional commitments to combating sexual violence, particularly against children.