Sexual abuse victims score victory in Western Cape High Court

CAPE TOWN - In a precedent setting judgment, the Western Cape High Court has reviewed and set aside a Wynberg magistrate’s decision that the charge sheet against the accused, in the country’s oldest sexual abuse case to go to trial, be amended.

Magistrate Vanessa Miki, in 2019, found in favour of the defence’s arguments that the provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 were not applicable at the time of the alleged offences, from 1974-1980, and that the act was not intended to apply retrospectively.

The case involves Sisters Lisa van der Merwe and Claudine Shiels, who alleged that they were sexually abused by two relatives, from 1974 to 1979.

The Cabinet’s approval, in 2018, of a bill aimed at amending the act, which did away with prescribed time limits applied to sexual abuse cases, motivated the sisters to seek justice.

The act came into force on the December 16, 2007. In April 2018, the alleged crimes were reported to the police, an investigation ensued, and legal proceedings were instituted against two men, understood to be from a prominent Constantia family.

The charge sheet, in both counts, reflects that the two counts of Indecent Assault against the second and third Respondents, are read together with the provisions of Section 58, 59 and 60 of the act.

The Director Of Public Prosecutions 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, which were not under police investigation, and/or no prosecution had been instituted prior to December 16, 2007, and they therefore, apply retrospectively.

It was further submitted that, if the relevant provisions are invoked and applied in the prosecution of the accused, their rights to a fair trial remain unimpaired.

The defence in opposing the review application said the DPP should have proceeded by way of appeal, rather than a review, and among others, that the relevant provisions of the act do not apply retrospectively to crimes that are charged under the common law.

Acting High Court Judge Constance Nziweni, with Judge Tandaswa Ndita in agreement, found that the relevant sections are matters of procedure and have nothing to do with substantive law.

“From 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 offences 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,” said the judges.

“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,” Judge Nziweni found.

The High Court found that the determination of the Regional Court Magistrate only focused on the presumption against retrospectivity, and did not delve further and interrogate the relevant sections.

“It is clear that Sections 58, 59 and 60 of the act apply retrospectively. Consequently, the order made by the Regional Court Magistrate, ordering the deletion of the relevant sections from the charge sheet, was irregular,” Judge Nziweni found.

The accused were ordered to pay the costs of the application, jointly and severally.

The NPA said, prior to the commencement of the act, certain cautionary rules applied against the complainants of common law sexual offences, which are now regarded as unconstitutional and were formally done away with.

“The 2007 act also states that the court may not draw any inference only from the length of delay between the alleged commission of such offence and the reporting thereof.

“In the present case, it was the prosecution’s contention that the same procedural aspects and absence of unconstitutional cautionary rules should apply to historic common law indecent assault cases, and that these victims deserve the same constitutional protection as victims of the newer statutory sexual offences,” said Judge Nziweni.

The NPA said, due to the nature of sexual offences, the social stigma attached thereto, and the feelings of guilt and confusion often experienced by victims of such crimes, victims often delay reporting the offences – if at all.

Van der Merwe told the Cape Times on Monday that she was now looking forward to the case resuming on November 26.

“We are very emotional and very excited. It has been a long road for us and this was a massive hurdle in the case. We needed to overcome this, for other victims in similar situations,” said Van der Merwe.

She expressed gratitude to the NPA.

For the defence, advocate Reuben Liddell did not respond to questions by the time of publication.

Cape Times