class notes: 15.02.2017

Rules embodied in the principle
PRINCIPLE OF LEGALITY

If one analyses the principle of legality, one finds that it in fact embodies five rules. In order to facilitate reference to the different rules, we shall give each of these rules a brief Latin label. These five rules are the following:

(1) 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. This is the ius acceptum rule.

(2) 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. This is the ius praevium rule.

(3) Crimes ought not to be formulated vaguely. This is the ius certum rule.

(4) A court must interpret the definition of a crime narrowly rather than broadly. This is the ius strictum rule.

(5) After an accused has been found guilty, the above-mentioned four rules must also be applied when it comes to imposing a sentence; this means that the applicable sentence (regarding both form and extent) must already have been determined in reasonably clear terms by the law at the time of the commission of the crime, that a court must interpret the words defining the punishment narrowly rather than broadly, and that a court is not free to impose any sentence other than the one legally authorised.

This is the nulla poena sinelege rule, which can be further abbreviated to the nulla poena rule.

IUS ACCEPTUM

The rule described above may be described as the ``ius acceptum rule''. The Latin word ius means ``law'‘ and ``acceptum'' means ``which has been received''. A free translation of ius acceptum would read: ``the law as it has been received up to date''. In South Africa the ius acceptum refers not only to the common law, but also to the existing statutory law.

This principle implies that a court may not find a person guilty of a crime unless the type of conduct he performed is recognised by the law as a crime. In other words a court it self may not create new crimes.

RECOGNITION OF THE PRINCIPLE OF LEGALITY IN THE SA CONSTITUTION

The principle of legality is incorporated in S35(3)(l) and (n) of the constitution of SA, Act 108 of 1996

S35 (3) provides that every accused person has a right to a fair trial, and paragraph l to this subsection provides that this right to a fair trial includes the right not to be convicted for an act or omission that was not an offence at the time it was committed.

Common-law crimes

Where there is no provision of the common law declaring certain conduct to be a crime, the courts have generally held that there can be no crime - and therefore no punishment. In M 1915 CPD 334, Kotze J declared: ``We do not possess the power of creating offences upon the ground that in our opinion, they are contrary to good morals.'' Our courts are not the guardians of morals. If there is a need to make conduct which may be viewed as immoral or dangerous to society punishable, it is the task of the legislature to declare such conduct punishable, if it wishes to do so. A court has no legislative powers

This point was emphasised by the Constitutional Court in Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC). The court (at par 30) stated that in a constitutional democracy such as ours the legislature, and not the courts, has the major responsibility for law reform and that the delicate balance between the functions and powers of the courts on the one hand and those of the legislature on the other hand should be recognised and respected.

Statutory crimes (i.e. crimes created in Acts of Parliament) If Parliament wishes to create a crime, an Act purporting to create such a crime will best comply with the principle of legality if it expressly declares:

(1) that that particular type of conduct is a crime, and

(2) what punishment a court must impose upon a person convicted of such a crime

In this regard it is feasible to distinguish between a legal norm, a criminal norm and a criminal sanction in an Act.

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

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

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

The difference may be illustrated by the following example. A statutory prohibition may be stated in the following three ways:

(1)No person may travel on a train without a ticket.

Example (1) contains a mere prohibition; although it creates a legal norm, it is nota legal norm creating a crime. Non-compliance with this provision may perhaps lead to certain administrative measures (eg that the passenger may be turned out of the train at the next stop) but it does not contain a criminal norm.

 A court will not, without strong and convincing indications to the contrary, hold that such a provision has created a criminal norm (Bethlehem Municipality 1941 OPD 230).

(2) No person may travel on a train without a ticket and any person who contravenes this provision commits a crime.

Example (2) does contain a criminal norm, because of the words ``commits a crime''. It does not, however, contain a criminal sanction as nothing is mentioned about the punishment which a court must impose after conviction.

(3) No person may travel on a train without a ticket and any person who contravenes this provision commits a crime and is punishable with imprisonment for a maximum period of three months or a maximum fine of R1 000 or both such imprisonment and fine

Example (3) contains both a criminal norm and a criminal sanction; the criminal sanction is contained in the words ``is punishable with imprisonment for a maximum period of three months or a maximum fine of R1 000 or both such imprisonment and fine''.

Case law on criminal norm

•S v Francis 1994 (1) SACR 350 (C).

•Zinn 1946 AD 346,

•Letoani 1950 (3) SA 669 (O),

•Landman 1960 (1)

•SA 269 (N) and Le Grange 1991 (1) SACR 27 (C)

IUS PRAEVIUM

Crimes should not be created  with retrospective effect

The principle of legality next implies that nobody ought to be convicted of a crime unless at the moment it took place the type of conduct committed was recognised by the law as a crime. It follows that the creation of a crime with retrospective effect (i.e. the ex post facto creation of crimes) is at variance with the principle of legality.

 This application of the principle of legality is known as the ius praevium rule. (``Praevium'' means ``previous''. Freely translated, ius praevium means ``the law which already exists''.)

Suppose somebody had committed a certain act in 1990 which at that time was completely innocent in the sense that it did not amount to a crime. Let us suppose that this innocent act consisted in her catching a certain type of wild bird belonging to nobody, and putting it in a cage. Let us suppose, further, that five years afterwards, in 1995, the legislature passed an Act dealing with the

protection of wildlife in which it prohibited the catching of that type of bird and expressly declared that anyone who caught such a bird had committed a crime.

Suppose, further, that this Act of 1995 contained a section which read: ``This Act is deemed to have come into operation on the first day of 1990.'' This would be an example of a law which has retrospective effect. Such legislation is usually referred to as ex post facto legislation.

(Ex post facto means that the law was enacted after (post) the commission of the act.) You will immediately appreciate that an Act of this nature, that is one creating a crime with retrospective effect, is most unfair, since the person who caught the bird in 1990, that is at a time when such an act was not a crime, can now, after 1995, be convicted of the crime created by the Act, and be punished for it, despite the fact that at the time of the commission of the act in 1990 she neither knew nor could have known that such conduct is or would be punishable.

In 1990 she could not have been deterred from committing the act, since at that time it was not yet punishable.

The Constitution of the Republic of South Africa Act 108 of 1996 contains a provision which expressly sets out the ius praevium rule. Section 35(3) of this Act provides that every accused has a right to a fair trial and paragraph (l) of this sub-section provides that this right to a fair trial includes the right not to be convicted of an offence in respect of an act or omission that was not an offence under either national or international law at the time it was committed or omitted.

This section forms part of chapter 2 of the Constitution, which contains the Bill of Rights. This Bill applies to all law, and binds the legislature, the executive, the judiciary and all organs of state (s 8(l)). This means that any legislation or law that violates the Bill of Rights, may be declared null and void by a court

In Masiya supra, the Constitutional Court had to decide on the constitutional validity of the common-law definition of rape to the extent that it excludes anal penetration of a penis into the anus of a female. (The common-law definition of rape, at that stage, was the unlawful, intentional penetration of the male sexual organ- the penis - into the vagina of a woman.) The court held that the common-law definition of rape be extended to include acts of non-consensual penetration of a penis into the anus of a female.

The accused contended that the extended definition should not apply to him because it would constitute a violation of his rights in terms of section 35(3)(l) of the Constitution. Keeping in mind the ius praevium principle, the Constitutional Court ruled that the extended definition of the crime of rape be applied prospectively only. In other words, because the field of application of the crime was extended only after the accused had performed the prohibited act (i.e., non consensual penetration of the anus of a female) he could not be convicted of rape, but only of indecent assault.

Please read the facts of Masiya’s case so that the decision will become clearer to you.