The State and Minister for Justice and Constitutional Development v Acting Regional Magistrate, Boksburg: Mr Phillip Venter and Another

The accused, Lucas van der Merwe, was charged in 2009 with rape allegedly committed in September 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Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which came into force on 16 December 2007 and repealed the common law crime of rape.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, arguing that he could not be prosecuted under the Act because it was not in force at the time of the offence, and could not be prosecuted under common law because it had been repealed. The Magistrates’ Court upheld the objection. On appeal, the High Court held that the transitional provisions in section 69 of the Act created a lacuna that barred prosecution of common law rape committed before the Act but reported afterwards, declared section 69 unconstitutional, and severed certain wording. The matter 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 severance order was not confirmed.

The case clarifies the interpretation of transitional provisions in criminal statutes and reaffirms the presumption against retrospective repeal of criminal liability. It confirms that repeal of a common law crime does not extinguish liability for conduct committed before repeal unless clearly stated. The judgment prevents an interpretation that would immunise perpetrators of sexual offences from prosecution and reinforces constitutional commitments to combating sexual violence, particularly against children.