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.
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