Precedent setting victory in sexual abuse case
In what a Cape Times report calls a precedent-setting judgment, the Western Cape High Court has reviewed and set aside a Wynberg Magistrate's Court decision that the charge sheet against the accused in the country's oldest sexual abuse case to go to trial, be amended.
In 2019, Magistrate Vanessa Miki found in favour of the defence's argument that the provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act were not applicable at the time of the alleged offences, from 1974 to 1980, and that the Act was not intended to apply retrospectively.
The case involves sisters Lisa van der Merwe (59) and Claudine Shiels (62), who alleged that they were sexually abused by two relatives from 1974 to 1979.
The DPP in the province approached the High Court to review and set aside Miki's decision, with the view that the relevant provisions of the Act are applicable to all sexual offences and that they, therefore, applied retrospectively.
It was further submitted that, if the relevant provisions were invoked and applied in the prosecution of the accused, their rights to a fair trial remained unimpaired.
The defence said the DPP should have proceeded by way of appeal, rather than a review and claimed the relevant provisions of the Act did not apply retrospectively to crimes under common law.
The High Court, however, found the relevant sections were matters of procedure and had nothing to do with substantive law, notes the Cape Times report.
‘From a reading of the Act, I do not get the impression that the legislature intended to discriminate among the victims of sexual offences but, instead, it wanted to afford victims equal protection by the law. Though the relevant sections are introducing new rules of procedure; they also signified a turning point in criminal procedure related to the treatment of sexual offence victims in courts. In my view, the relevant sections constitute new procedures going forward, regardless of whether the offence is a common law offence or statutory offence,’ Acting Judge Constance Nziweni, with Judge Tandaswa Ndita in agreement, noted, ‘Though the Act, generally, is prospective, it does, however, impose new rules in respect of past incidents, which were only prosecuted or investigated after its commencement,’ Nziweni found.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
