Two accused to challenge ruling in Constitutional Court

The two men accused of molesting two young sisters in the 1970s plan to approach the Constitutional Court to overturn a ruling that prohibits amending their charge sheet and mandates the trial to proceed.

This is according to their lawyer, Leon van der Merwe.

The men, charged in 2018, cannot be named until they have pleaded to the charges.

Speaking to The Herald yesterday, Van der Merwe said: “Our instruction is to go to the Constitutional Court.

“And we hope the highest court will reach the same conclusion as the magistrate did at the time — that the complaint is too vague, and the law under which they are charged should not be retroactive.

“They haven’t pleaded yet, but they plan to plead not guilty. We are currently in the process of compiling the papers for the apex court.”

Shortly after they were charged in 2018, the accused sought an amendment to the charge sheet.

Initially successful in the regional court, the Director of Public Prosecutions took the decision on review to the Western Cape High Court.

The high court overturned the regional court’s decision, stating that omitting sections 58, 59 and 60 from the charge sheet was an error.

The accused then appealed to the Supreme Court of Appeal, but on May 10, judge Wendy Hughes dismissed their

application with costs.

Lisa van der Merwe and her sister, Claudine Shiels, allege the two men, relatives on their stepmother’s side, sexually abused them when they were 12 and 15 years old, respectively.

The alleged offences took place between 1974 and 1979.

Legal expert Ulrich Roux said the Section 18 amendment created a distinction between sexual offences listed in Section 18(f), (h) and (i), being rape or compelled rape, human trafficking and using a child or person who is mentally disabled for pornographic purposes, and those that fell under the common law.

“The latter and far-broader category of common law offences, including sexual assault, could not be prosecuted 20 years after the offence had been committed.”

He said it was on June 15 2017 that the South Gauteng High Court declared Section 18 of the Criminal Procedure Act, 1977, inconsistent with the constitution and invalid.

“It was to the extent that it bars, in all circumstances, the right to institute a prosecution for all sexual offences, other than those listed in Section 18(f), (h) and (i), after the lapse of a period of 20 years from the time when the offence was committed.

“This was confirmed a year later on June 14 2018, when the Constitutional Court confirmed the declaration of constitutional invalidity of Section 18.”