Chapter 2 - The principle of legality as entrenched in the Constitution of the Republic of South Africa, 1996

Question 1

Explain the concept of legality

Answer 1

In determining whether a person is criminally liable, the first question to be asked is whether the type of conduct allegedly committed by such a person is recognised by the law as a crime. Certain conduct may be wrong from a moral or religious point of view, yet may not be prohibited by law. Again, even if it is prohibited by law, it does not necessarily follow that it is a crime, it may lead only to a civil action, or it may result only in certain administrative measures being taken by some authority.

Question 2

Define what is the principle of legality.

Answer 2

An accused may

1. not be convicted of a crime -

a. Unless the type of conduct with which she is charged has been recognised by the law as a crime.

b. Unless the crime is in clear terms

c. Before the conduct took place

d. Without it being necessary to interpret the words in the definition of the crime broadly in order to cover the accused’s conduct, and if convicted, not to be sentenced unless the sentence also complies with the four requirements.

Question 3

What are the rules embodied in the principle of legality?

Answer 3

1. ius acceptum rule
2. ius praevium rule
3. ius certum rule
4. ius stictum rule
5. nulla poena sine lege rule

Question 4

Explain the ius acceptum rule

Answer 4

A court may find an accused guilty of a crime only if the kind of act performed is recognised by the law as a crime, in other words, a court itself may not create a crime.

Question 5

Explain the ius praevium rule

Answer 5

A court may find an accused guilty of a crime only if the kind of act performed was recognised as a crime at the time of its commission.

Question 6

Explain the ius certum rule

Answer 6

Crimes ought not to be formulated vaguely.

Question 7

Explain the ius strictum rule

Answer 7

A court must interpret the definition of a crime narrowly rather than broadly.

Question 8

Explain the nulla poena sine lege rule

Answer 8

After an accused has been found guilty, the above mentioned rules must also be applied when it comes to imposing a sentence.

Question 9

Explain the ius acceptum rule in terms of common law crimes.

Answer 9

Where there is no peovisionof the common law declaring certain conduct to be a crime, the courts have generallyy held that there can be no crime.

Question 10

Explain the ius acceptum rule in terms of a statutory crime.

Answer 10

If a parliament wishes to create a crime, an Act purporting to create a crime will best comply with the principle of legality if it expressly declares that a particular type of conduct is a crime and what punishment a court must impose upon a person convicted of such a crime.

Question 11

Define a legal norm

Answer 11

A legal norm in an Act is a provision creating a legal rule that does not simultaneously create a crime.

Question 12

Define a criminal norm

Answer 12

A criminal norm in an act is a provision that makes it clear that certain conduct constitutes a crime.

Question 13

Define a criminal sanction

Answer 13

A criminal sanction is a provision in an Act stipulating what punishment a court must impose after a person has been convicted of that crime.

Question 14

Can a person be charged with a statutory crime without sanction stipulated?

Answer 14

Yes, the person may be charged with such a crime and be found guilty, even if no penalty is prescribed in the particular Act. The imposition of punishment is then left to the discretion of the court, as has always been the position in the common law.

Question 15

Assume the South African parliament passes a state in 2004, which contains the following provision:

Any person who commits an act which could possibly be prejudicial to sound relations between people is guilty of a crime. This provision is deemed to have come into operation on 1 January 1995.

No punishment is specified for the crime. Do you think this provision complies with the principle of legality?

Answer 15

The provision complies with certain aspects of the ius acceptum rule. It is clearly stated in the provision that the conduct prohibited is a crime. This means that the provision contains a criminal norm

The provision does not comply with the ius praevium rule because the crime is created with retrospective effect. The provision also does not comply with the ius cretum rule because it is formulated in vague and uncertain terms. The ius strictum rule further requires that an act that is ambiguous be interpreted strictly. A provision that is very wide and vague should be interpreted in favour of the accused. if follows that the provision does not comply with the principle of legality.

Question 16

Explain the principle of legality in punishment

Answer 16

1. The application of ius acceptum rule to punishments is as follows: in the same way as a court cannot find anyone guilty of a crime unless the conduct is recognised by statutory or common law as a crime, it cannot impose a punishment unless the punishment, in respect of both its nature and extent, is recognised or prescribed by statutory or common law.
2. The application of the ius praevium rule to punishment is as follows: if the punishment to be imposed for a certain crime is increased, it must not be applied to the detriment of an accused who committed the crime before the punishment was increased.
3. The application of the ius certum rule to punishment is that the legislature should not express itself vaguely or unclearly when creating and describing punishment.
4. The application of the ius strictum rule to punishment is that where a provision in an Act that creates and prescribes a punishment is ambiguous, the court must interpret the provision strictly.