Rehana Rossouw and Ann Eveleth
AN obscure law dating back 169 years could cripple the Truth and Reconciliation Commission’s (TRC) amnesty process, Cape Attorney General Frank Khan said this week, announcing that he will challenge a landmark ruling based on the law which was made this week in the Cape High Court.
In what could be a precedent-setting judgment, Judge S Selikotwitz ruled that a person could not be prosecuted for an offence that occurred more than 20 years in the past.
He was ruling in the case of a Maitland man charged with two counts of rape and six counts of indecent assault. The man, whose name was not immediately available, had been charged in 1995 for offences allegedly committed between 1970 and 1974.
John Abel and Francois van Zyl, counsel for the accused, argued that the court had no jurisdiction over him. Acting with legal advice from the Legal Aid Board, they referred to an 1828 provision in the criminal code of what was then the Cape Colony, that held that crimes dating back more than 20 years could no longer be prosecuted. The only exception was the crime of murder. The provision was also included in the criminal codes of 1917 and 1955.
Khan said he had been “disturbed” when he had seen the judgment. He theorised that it meant that people who had committed crimes before 1977 could be protected from prosecution and as a result would not have to seek amnesty. This could include several incidents relating to the 1976 student uprising and torture in detention more than 20 years ago.
“I will see if I can take this matter to the Constitutional Court,” Khan said. “It will be devastating if this judgment is used as an argument before the TRC’s amnesty committee.”
TRC spokesman John Allen said until the commission’s legal advisers had studied the entire judgment, they could not comment on its implications.
In the meantime, KwaZulu-Natal Attorney General Tim McNally said the old code was not unique, and it was not, in fact, necessary for the judge to base his judgment on it. He pointed out that the current Criminal Procedure Act of 1977 also calls for a 20-year time limit for noncapital crimes.
According to the code, “the right to institute a prosecution for any offence, other than an offence in respect of which the sentence of death may be imposed, shall, unless some other period is expressly provided by law, lapse after the expiration of a period of 20 years from the time when the offence was committed”.
McNally said he could not speak for the TRC, but his opinion as attorney general was that several things resulting from the abolition of the death penalty “need to be tidied up”.
He said this was an issue not for the Constitutional Court, but for Parliament, which would also have to look at other legal gaps resulting from the abolition of the death penalty.
He suggested that a number of serious crimes should be excluded from the 20-year limitation. It was clear, he said, that the legislators who drafted the 1977 act had intended that the most serious crimes should not have an expiry date.