Lategan and Another v The Director of Public Prosecutions, Western Cape and Another

The appellants were charged in 2018 in the Wynberg Regional Court under the common law for sexual offences committed between 1974 and 1979, before the commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act). The charge sheet indicated that the Director of Public Prosecutions (DPP) would rely on sections 58, 59 and 60 of the Act. The appellants objected, arguing that the Act did not apply to common law offences committed before the Act's commencement. The Regional Court ordered the removal of references to these sections from the charge sheet. The DPP instituted review proceedings in the High Court, which set aside the Regional Court's order. The appellants appealed to the Supreme Court of Appeal with leave.

• Whether sections 58, 59 and 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 apply retrospectively to common law sexual offences committed prior to the commencement of the Act but instituted and prosecuted thereafter
• Whether the DPP correctly proceeded by way of review rather than appeal in terms of section 310 of the Criminal Procedure Act
• Whether the procedural provisions of the Act (sections 58, 59 and 60) affect the substantive rights of accused persons charged with common law sexual offences
• The interpretation of section 69 of the Act (the transitional provision)

The appeal was dismissed with costs, including costs consequent on the employment of two counsel. The High Court's decision setting aside the Regional Court's order was upheld. Sections 58, 59 and 60 of the Act were held to be applicable to the prosecution of the appellants.

The binding legal principles established are: (1) Procedural provisions of a statute, which do not affect substantive rights, apply prospectively to all proceedings commenced after the statute's commencement, even where the underlying conduct occurred before the statute came into force. (2) Sections 58, 59 and 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are procedural provisions relating to evidence and do not affect the substantive rights of accused persons; they therefore apply to prosecutions of common law sexual offences instituted after the Act's commencement, regardless of when those offences were committed. (3) The presumption against retrospective operation of statutes applies to protect vested substantive rights, not procedural matters. (4) Section 69 of the Act (the transitional provision) applies only to investigations and prosecutions that were initiated or instituted before the Act's commencement, not to offences committed before but prosecuted after the Act came into force. (5) Where a magistrate materially misinterprets the law resulting in a gross irregularity, review rather than appeal is the appropriate remedy.

The court made several non-binding observations: (1) It noted that sections 58, 59 and 60 largely codify the common law position that existed before the Act, citing pre-Act cases such as S v J (regarding the cautionary rule), S v S and S v Cornick (regarding delay in reporting). (2) The court observed that the purpose of the Act, evident from its preamble and long title, was to provide comprehensive protection to complainants of sexual offences, particularly vulnerable persons, women and children, and to address the inadequacies of the common law. (3) The court noted that the appellants' counsel could not identify any specific substantive rights that would be prejudicially affected by the application of sections 58, 59 and 60. (4) The court commented that section 69 "does not confer prosecutorial power on the State in respect of common law crimes, but rather confirms it" and that the State's prosecutorial power is sourced in the National Prosecuting Authority Act and ultimately the Constitution.

This case is significant in South African criminal law as it clarifies the temporal application of procedural provisions in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. It establishes that procedural provisions of a statute (particularly sections 58, 59 and 60 dealing with evidence in sexual offences cases) apply prospectively to all prosecutions commenced after the Act's commencement, regardless of when the underlying offences were committed. The judgment distinguishes between substantive and procedural provisions for purposes of retrospectivity, confirming that the presumption against retrospectivity applies primarily to substantive rights. It also interprets section 69 (the transitional provision) as applying only to matters already in the prosecutorial system before the Act's commencement. The case is important for prosecutions of historical sexual offences and demonstrates the courts' approach to balancing the rights of accused persons with the legislature's intent to provide enhanced protection to complainants in sexual offences cases.