1. UNAUTHORIZED REMOVAL OF HUMAN TISSUE NOT A CRIME ANYMORE. 2. JURISDICTION IN CONSPIRACY TO COMMIT CRIME OUTSIDE THE BORDER

S v FREDERIKSEN 2018 (1) SACR 29 (FB)

 

Health offences — Human tissue — Unauthorised removal of — Statutory offences that existed under former Human Tissue Act 65 of 1983 repealed by and not included in National Health Act 61 of 2003.

General principles of liability — Conspiracy — Jurisdiction — Conspiracy in South Africa to murder victim in another country — Court in South Africa having jurisdiction.

 

The accused was charged in the High Court with numerous offences, including 10 counts of contravening of s 58 of the National Health Act 61 of 2003 (the Health Act) and 10 counts of contravening s 55 read with s 56 ofthe Health Act relating to the removal of human tissue from persons without their written consent and outside a hospital or another institution (in the case of the first group of 10 counts), and not done in accordance with the prescribed manner or procedure (in the second group of 10 counts). He was also charged with conspiracy to commit murder under s 18(2) of the Riotous Assemblies Act 17 of 1956.

At the end of the prosecution’s case, the accused applied for his discharge on these counts. He contended, in respect of the charges under the Health Act, that no provision had been made in that Act for creation of offences in respect of the acts he was accused of. In respect of the conspiracy charge, he contended that, since it related to an agreement he had allegedly made with a fellow prisoner for the murder of a witness outside the borders of South Africa (in Lesotho), the court could not convict him on this count.

Held, as to the 20 counts under the Health Act, that offences relating to the removal of human tissue had been created by the repealed Human Tissue Act 65 of 1983, but for an unknown reason, the legislature, supposedly well aware of the offences in that Act, failed to create criminal offences for similar transgressions in the Health Act. The Act could further not be interpreted to the extent that criminal offences had been created for transgressing the provisions of ss 55 and 58: the court could not venture into the arena of the legislature merely because it might be of the view a casus omissus had occurred. The accused accordingly had to be discharged on these counts. (See [11] and [16].)

Held, as to the conspiracy charge, that it would have grave consequences for South Africa’s international standing if it allowed its citizens and others to conspire in South Africa to commit crimes in neighbouring or other countries without sanction. The essential factual findings on the charge were sufficient for a reasonable court to convict upon and the accused had to be put to his defence in respect of this charge.

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