class notes

IUS CERTUM

CRIMES OUGHT TO BE FORMULATED CLEARLY

The Constitution contains no express provision as regards the ius certum rule. However, it is probable that the provisions of section 35(3) (already mentioned above) will be interpreted in such a way that section 35(3) covers the ius certum rule as well. Such an interpretation of the section may be based either upon an accused's right to a fair trial in general, or on the principle that if a criminal norm contained in legislation is vague or uncertain, it cannot be said that the accused's act or omission amounted to a crime before the court interpreted the provision as one containing a criminal norm.

In Lavhenga 1996 2 SACR 453 (W), it was held that the right created in S35(3)(a) implied that the charge itself had to be clear and unambiguous. It was further held that in order to comply with the requirements of sufficient clarity one should bear in mind, first that absolute clarity is not required; reasonable clarity is sufficient.

If the formulation of a crime is unclear or vague, it is difficult for the subject to understand exactly what is expected of her. At issue here is the ius certum rule. (Certum means ``clear'' – the opposite of ``vague''.)

IUS STRICTUM

PROVISIONS CREATING CRIMES MUST BE

INTERPRETED STRICTLY

Ius strictum'' literally means ``strict

law''. Freely translated, it means ``a legal provision which is interpreted strictly (i.e.the opposite of `widely')''.

The underlying idea here is not that the Act should be interpreted against the state and in favour of the accused, but only that where doubt exists concerning the interpretation of a criminal provision, the accused should be given the benefit of the doubt. The ius strictum rule implies further that a court is not authorised to extend a crime's field of application by means of analogy to the detriment of the accused.

However, in Masiya supra, the Constitutional Court held that a High Court may, in exceptional circumstances, extend the field of application of a crime in order to promote the values enshrined in the Constitution. Note, however, that in this particular case the accused was not prejudiced in that the extended definition was not applied to him. The background of the case was as follows:

X was charged with the crime of rape. At that stage, the common-law definition of rape was the unlawful, intentional sexual intercourse with a woman without her consent. The element of ``sexual intercourse'' required nothing less than penetration by the male genital organ into the vagina of the woman. At X's trial the evidence established that the victim was penetrated anally (i.e., in the anus), and not in the vagina, as required for the crime of rape. The state applied that X be convicted of indecent assault (a competent verdict on a charge of rape).

However, the regional magistrate held that the common-law definition of rape, according to which the crime is restricted to penile penetration of the vagina, should be declared unconstitutional and should be amended to include penile penetration of the anus. The regional magistrate accordingly convicted the accused of rape.

In an appeal by the accused the High Court confirmed the decision of the regional magistrate in a judgment reported as S v Masiya 2006 (2) SACR 357 (T). The High Court explained that in terms of the existing common-law definition of the crime the non-consensual anal penetration of a girl (or a boy) amounts only to the (lesser) common-law crime of indecent assault, and not rape, because only non-consensual vaginal sexual intercourse is regarded as rape.

The court questioned why the non-consensual sexual penetration of a girl (or a boy) per anum be regarded as less injurious, less humiliating and less serious than

the non-consensual sexual penetration of a girl per vagina.

The court (at par 71) was of the view that the common-law definition of rape is not only archaic but also irrational, and amounts to arbitrary discrimination regarding which kind of sexual penetration is to be regarded as the most serious.

The court was of the opinion that the conviction of rape did not amount to an

unjustified violation of the accused's fair-trial rights (e.g., the principle of legality,

which in sections 35(3)(l) and 35(3)(n) of the Constitution is guaranteed as one of

the rights of the accused), because non-consensual anal intercourse was already a

crime, and the accused knew that he was acting unlawfully.

The court argued that it had never been a requirement that an accused, at the time of the commission of an unlawful deed, should know whether it is a common-law or a statutory offence, or what the legal/official terminology is when naming it. The fact that an extension of the definition of the crime of rape had been proposed in the Criminal Law (Sexual Offences) Amendment Bill 2003 but that that Bill, at the time of the hearing of the case, had not yet become legislation was a factor that convinced the court that it was the appropriate forum to extend the definition of the crime of rape.

X once again appealed against his conviction of rape - this time to the Constitutional Court on the ground of violation of his right to a fair trial. The Constitutional Court emphasised that the legislature is primarily responsible for law reform. However, section 39(2) of the Constitution empowers the courts to develop the common law in any particular case. Where there is a deviation from the spirit, purport and objects of the Bill of Rights the courts are in fact obliged to develop the common law by removing the deviation.

The Constitutional Court found that the common-law definition of rape was not unconstitutional, but that it needed to be adapted to comply with the provisions of the Bill of Rights. The Court focused only on the facts before it and on the particular rights of women that are violated by the restricted definition of the crime of common-law rape, namely the rights of women to dignity, sexual autonomy and privacy… and etc

The Court explained that this meant that the rules of criminal law should be clear and precise, so that an individual may easily behave in a manner that avoids committing crimes. In other words, fairness to the accused required that the extended meaning of the crime of rape not apply to him, but only to those cases that arose after judgment in the matter had been handed down. X could therefore be convicted of indecent assault only, and not of rape.