class notes: 15.02.2017
Rules embodied in the principle
PRINCIPLE OF LEGALITY
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.
A great case to be viewed by Criminal law students
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