The State and Minister for Justice and Constitutional Development v Acting Regional Magistrate, Boksburg: Mr Phillip Venter and Lucas Van Der Merwe

In February 2009, a criminal complaint of rape was laid against Mr van der Merwe (the accused) relating to an alleged rape that occurred in September 2005. He was arrested in July 2009 and charged in September 2009 in the Regional Magistrates' Court, Boksburg with rape under section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act). The Act came into force on 16 December 2007 and repealed the common law crime of rape, replacing it with a broader statutory definition. The alleged rape occurred before the Act came into force, but the investigation and prosecution commenced after. The accused objected to the charge, contending he could not be charged under the Act (as it was not in force at the time of the alleged offence) nor under common law (as it had been repealed by the Act). He argued that section 69 (transitional provisions) only kept common law in operation for investigations initiated or prosecutions instituted before the Act commenced. The Magistrates' Court upheld the objection. The State appealed to the High Court, which declared section 69 unconstitutional and ordered severance of words that precluded prosecution of common law crimes committed before commencement but investigated after. The matter was referred to the Constitutional Court for confirmation of the order of constitutional invalidity.

• Whether sections 68 and 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 retrospectively repeal the common law crime of rape
• Whether section 69 precludes prosecution of common law rape committed before the commencement of the Act but reported or investigated afterwards
• Whether section 69 is inconsistent with the Constitution
• The proper interpretation of transitional provisions in criminal statutes
• The application of the presumption against retrospectivity in criminal law

The order of constitutional invalidity granted by the South Gauteng High Court was not confirmed. The Constitutional Court declared that section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 does not preclude the investigation, prosecution or punishment of the common law offence of rape committed before 16 December 2007.

The repeal of the common law crime of rape by section 68 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 did not operate retrospectively to extinguish criminal liability for rapes committed before the Act commenced, as there is a presumption against retrospectivity unless a contrary intention is clearly indicated. Section 69 (transitional provisions) does not preclude prosecution of common law rape committed before the Act commenced on 16 December 2007 but only investigated or prosecuted afterwards. Section 69 only regulates cases already in the justice system at commencement and does not cover the entire field of prosecutions for common law crimes. The plain meaning of section 69, read in light of the Act's purpose to afford maximum protection to victims of sexual offences and constitutional values protecting against violence, cannot be interpreted to immunize pre-commencement sexual offences from prosecution.

The Court made observations about the Constitution setting its face firmly against all violence, particularly sexual violence against vulnerable children, women and men. It noted the Act's emphasis on dignity, protection against violence against the person, and particular protection of women and children. The Court stated it would be inconceivable that any provision could exonerate and immunise from prosecution acts that violated these interests. The Court also observed that section 69 does not confer prosecutorial power on the State but rather confirms power that is sourced elsewhere - in the National Prosecuting Authority Act and ultimately the Constitution. The judgment referenced the principle from New Clicks that a court may depart from clear statutory language where it would lead to absurdity never contemplated by the legislature, though found this principle did not apply here as the clear language did not lead to absurdity.

This case establishes important principles regarding the interpretation of transitional provisions in criminal statutes and the presumption against retrospectivity. It confirms that the repeal of a common law crime and its replacement with a statutory offence does not retrospectively extinguish criminal liability for conduct that was criminal when committed, unless clearly indicated by Parliament. The judgment reinforces that transitional provisions should be interpreted in light of the statute's purpose and constitutional values, particularly the protection of vulnerable persons from violence. The case demonstrates how courts should interpret criminal statutes purposively to avoid absurd results that would undermine constitutional rights and the statute's protective objectives. It has significant implications for the prosecution of sexual offences committed before legislative reform but only investigated or prosecuted afterwards, ensuring that such crimes remain prosecutable.