In the oldest sex abuse case to go to trial in the country, two sisters who were sexually abused, allegedly by relatives, from 1974 to 1979 have secured another victory in their quest for justice.
This time, the Supreme Court of Appeal (SCA) has dismissed an application by the accused to amend the charge sheet.
They had alleged that the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 was not applicable to the offences for which they were charged under the common law, as the act was not in existence when the offences were allegedly committed.
Lisa van der Merwe and her sister Claudine Shiels had taken their relatives to court retrospectively in 2018 for sexual acts which had allegedly taken place between 1974 to 1979. The abuse began at their home in Zeekoevlei, which the sisters referred to as a “house of horrors”, and that it had torn apart an already dysfunctional family.
It was only after the Cabinet approved the introduction of a bill in 2018 aimed at amending the Criminal Procedure Act to enable sexual offences to be prosecuted retrospectively, that the sisters decided to seek justice.
The Western Cape High Court had concluded that the Director of Public Prosecutions (DPP) was correct by having the matter reviewed, as the regional court committed an irregularity when it ruled that ss 58, 59 and 60 of the act be deleted from the charge sheet. It reasoned that, even though the act does not apply retrospectively, the sections above applied retrospectively and as such were applicable.
“Fundamentally, the act’s purpose was to repeal the common law offence of rape and replace it with a new expanded statutory offence of rape; to comprehensively and extensively review, amend all aspects of the laws and the implementation of the law relating to all forms of sexual penetration without consent, irrespective of gender.
“The preamble of the act is also instructive on the need for a new and amended act. The legislature took cognisance of the fact that the commission of sexual offences in South Africa is an issue of grave concern against disadvantaged and vulnerable members of society at large, women and children being the most vulnerable members of society,” said SCA Judge Wendy Hughes.
“Thus, the conclusion I reach is that the retrospectivity, in this instance, does not impinge on any of the substantive rights of the appellants in respect of their future criminal proceedings. Insofar as this retrospectivity is a ‘weak’ retrospectivity relating only to procedural rules of evidence, no unfairness will be visited upon the appellants in respect of the defence that they may wish to mount during the criminal proceedings.
The high court was therefore correct in finding that the provisions of ss 58, 59 and 60 were applicable to the future criminal proceedings of the appellants,” said the judge.
The sisters were relieved at the outcome. Van der Merwe said: “I am very happy ... (it’s) been a long road but very grateful for our prosecutors’ perseverance.”
Echoing her sister’s sentiments, Shiels said: “So thrilled that the appeal failed. It would have been a travesty of justice if it had succeeded.”
Attempts to get comment from the accused’s legal counsel were unsuccessful by deadline.
Cape Times