The principle of legality Flashcards
Define the principle of legality and mention its five elements
In its simplest form, the principle of legality proclaims that punishment may only be inflicted for contraventions of a clearly defined crime created by a law that was in force before the contravention. This is encapsulated in Sections 1(c) and 35(3) of the Constitution. There are 5 facets to the principle:
1) a court may only find an accused guilty of a crime if the conduct performed by the alleged criminal was recognised by law as a crime (nulla crimen sine lege)
2) common-law and statutory crimes must be defined with reasonable precision [s35(3)(a)]
3) there can be no conviction of, or punishment for, conduct not previously declared to be a crime i.e. no retrospective operation [s35(3)(l)]
4) a court should interpret the definition of a crime narrowly rather than broadly and in favour of the liberty of the individual
5) the punishment for crimes must also be clearly prescribed by law in advance (nulla poena sine lege)
What were the facts and issues in Masiya v DPP?
The defendant anally raped a 9 year old girl. He was to be charged with indecent assault.
Is it unconstitutional for the common law definition of rape to exclude anal penetration and be gender specific? (i.e. was rape limited to penile-vaginal intercourse?)
a) does it need to be developed in line with the Constitution?
b) is the defendant liable to be convicted in terms of the developed definition?
c) should the relevant statutory provisions be confirmed invalid?
What was the common law definition of rape and the statutory definition of indecent assault?
Rape = The penile penetration of a woman’s vagina.
Indecednt assault = Includes anal penetration. Carries a lesser sentence than a charge of rape.
What did the majority in Masiya hold with respect to the three issues raised?
a) The definition of rape is under-inclusive. It is not however unconstitutional, for protection of women in a patriarchal society is not to the deliberate detriment of men. Historically, rape is a crime against women. The facts do not involve the penetration of a male’s anus, therefore it cannot be extended to include such. Even though such an instance is as degrading, the facts of the case do not lend itself to such an extension. This lends the court to an incremental change in the law, preserving the Separation of Powers doctrine. Parliament ought to develop the law further. The Legislature was about to pass a Bill to the same effect anyway. Hence, the definition is extended to include the intentional penetration of the female anus by a penis without consent. Nkabinde J used morality to get around the principle of legality. The defendant knew that their conduct at the time was wrong, regardless of whether it was categorised as rape or indecent assault.
b) The law should only operate prospectively, not retrospectively. Therefore, notwithstanding the heinous nature of the crime committed, the defendant cannot be charged with the new extended common-law definition of rape, for this would be unfair and offend the principle of legality. Hence, the defendant is only liable for the offence of indecent sexual assault.
c) There is no need to declare the provision invalid, because it has been developed in line with the Constitution.
What did the minority in Masiya hold?
Such a common-law definition of rape was archaic and irrational and amounted to arbitrary gender discrimination. Development of the common law must go further to include men. Equality underpins the constitution. Anal penetration of men being regarded as rape is not creating a new crime, it is simply re-categorising an already criminal offence. There is also no way that including men in the new definition would undermine the effect of rape on women. Lastly, young boys, prisoners and homosexuals are also vulnerable groups that ought to be protected. Denying development due to the specificity of the facts is not the purpose of development. The purpose is to protect constitutional principles. Langa CJ used the law to get around the principle of legality. The defendant knew that their conduct was illegal at the time, regardless of its categorisation as rape or indecent assault.
How did Snyman and Phelps view the decision in Masiya?
Snyman felt that the CC was too lenient in its approach, by extending the definition of rape by analogy and taking into account emotional considerations. He argues that penile-vaginal penetration ought to be treated differently to anal penetration, due to the risk of pregnancy involved in vaginal penetration.
Phelps felt that the CC did not go far enough. She argues that courts are not precluded from extending the common-law and that new forms of behaviour ought to be accommodated in the common law.
What was the issue in Savoi v NDPP?
Is the phrasing too broad i.e. are its terms too general, to the effect that they cater for prosecutorial abuse and give rise to an unfair trial in violation of s35 of the Constitution. Is “ought to have reasonably known” in the Prevention of Organised Crime Act (POCA) unconstitutional?
What was held in Savoi with respect to the principle of legality?
(Madlanga J) Criminal syndicates work in a complex manner. Non-retroactivity in the principle of legality seeks to protect people from being treated unfairly. There is a need to forewarn people that conduct of a particular kind is proscribed and punishable criminally. However, to determine a ‘pattern of racketeering’, the courts are required to look into the past for previous incidences of racketeering, which may not have been defined as such at the time. Furthermore, POCA does not punish conduct committed before its enactment. Rather, at least one component of the “pattern of racketeering activity” must have been committed after POCA came into operation. A requirement for a crime is guilty knowledge. Therefore, does ‘ought to have reasonably known’ adequately capture the idea of culpability/negligence? It does, and the order of invalidity should be set aside.
