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 criminal offence

PRESCRIPTION DOES APPLY IN CRIMINAL CASES, BUT WITH LIMITATIONS AND IMPORTANT EXCEPTIONS FOR SERIOUS CRIMES.

 Prescription of Criminal offences:

 Every so often we get a query about a previous criminal record from a client.

Very often these queries relate to how they can expunge a criminal record from some time ago.

However; we had an interesting inquiry last week.

Essentially the question is about the prescription of criminal offences.

In this blog we will try to answer this question.

Does prescription apply to crimes?

  The enquiry read as follows:

Bob Hewitt, the tennis player, is currently serving time in prison for a rape conviction/s that took place a few years ago; bot which relates to offences committed in the 1970s; if I remember correctly.

During the last week or so; I have also read quite a number of previous media reports both locally and internationally of victims of rape or sexual assault coming forward with claims of abuse have occurred many, many years ago. I know that debts can prescribe, but was wondering if criminal charges can also prescribe? Can you answer this question for me?”

Prescription, in the general legal sense, speaks to the time in which one can claim from another for a specific debt, and if not done, that claim can prescribe (fall away) after a specific period of time. Generally for civil claims, a well-known period of 3 years applies. But does criminal law have the same prescriptive periods?

Popular belief is that crimes do not have a prescription period and that you can be prosecuted for a crime even after many years have passed.

In South Africa, this is not true as Section 18 of the Criminal Procedure Act 51 of 1977 (as amended) determines that the State may not institute criminal proceedings against a suspect if 20 years have passed from the date that the offence was committed.

This means that if you were involved in a car accident on the 14th of April 1999 and could be guilty of reckless or negligent driving, if the state instituted criminal proceedings against you on the 13th of April 2019, you could use a special plea of prescription as a defence and the State would be barred from continuing with the charge against you.

Importantly though, the provisions of section 18 are not an absolute defence against all charges.

The section makes provisions for specific exceptions for serious crimes which can still be prosecuted at any time after the 20 year period from the date of an incident has lapsed.

These crimes include for example: 

1.            Murder; 
2.            Treason; committed when the Republic is in a state of war;
3.            Aggravated robbery;
4.            Kidnapping;
5.            Child-stealing;
6.            Rape or compelled rape;
7.            Genocide, crimes against humanity and war crimes;
8.            Crimes and involvement in human trafficking;
9.            Trafficking in persons for sexual purposes;
10.          Using a child or person who is mentally disabled for pornographic purposes; and
11.          Torture.

It is important to note that section 18(f), in its current form, has been declared unconstitutional by our Constitutional Court which has expanded the sub-section to also include all other sexual offences and not just rape or compelled rape, effectively negating a defence of prescription for any sexual offence.

Section 18 will not, however, apply if some other period is expressly provided for by law, for example, if the accused is charged in terms of the Defence Act No 44 of 1957 which applies to military personnel and stipulates its own period of prescription (e.g.3 years). 

It should also be noted that prescription is interrupted by the institution of a prosecution (when a summons is issued).

What is clear is that :

prescription does apply in criminal cases, but with limitations and important exceptions for serious crimes

where the demands of justice dictate that an offender may not escape responsibility merely because of the passage of time.

 

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will respond to your legal queries within 48 hours.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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