Abstract
The purpose of any legislation is to safeguard the welfare of society. Any law that fails to do that cannot justify its existence. In S v Acting Regional Magistrate, Boksburg: Venter ((CCT 109/10) [2011] ZACC 22; 2011 (2) SACR 274 (CC)) the question of nullity of the particular wording of section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007, hereinafter “the Act”) and its subsequent constitutionality, were in question. The court had to decide whether to confirm the ruling of the SouthGauteng High Court, Johannesburg (Case No A11/2010) that the particular wording of the section was inconsistent with the Constitution of the Republic of South Africa, 1996, or whether it could apply the various rules of interpretation and save the section from invalidity.
Highlights
The purpose of any legislation is to safeguard the welfare of society
The court had to decide whether to confirm the ruling of the South Gauteng High Court, Johannesburg (Case No A11/2010) that the particular wording of the section was inconsistent with the Constitution of the Republic of South Africa, 1996, or whether it could apply the various rules of interpretation and save the section from invalidity
This matter was referred to the Constitutional Court from the South Gauteng High Court (S v Acting Regional Magistrate, Boksburg 2011 (4) BCLR 443 (GSJ)) for a declaration on the constitutional invalidity of section 69 the Act, in terms of section 172(2)(a) of the Constitution
Summary
The purpose of any legislation is to safeguard the welfare of society. Any law that fails to do that cannot justify its existence. “that he could not be charged with contravening section 3, because the Act only came into force on 16 December 2007 (over two years after the alleged rape was committed)” (par 7), and secondly that “he could not be charged with common-law rape either, because that kind no longer existed, having been repealed by the Act, almost 2 years before he was charged” (par 7) He brought these objections relying on section 85(1)(c) of the Criminal Procedure Act (51 of 1977, hereinafter “the CPA”), which provides that “an accused [person] may, before pleading to the charge under section 106, object to the charge on the ground – ... On the other hand, it found that the provisions were inconsistent with the Constitution (see above) and that the decision by the High Court was correct, it would have to consider whether it would be in the interests of justice for such order to apply retrospectively
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