2.

THE PRINCIPLE OF LEGALITY – NULLUM CRIMEN SINE LEGE

The principle of legality has been part of the common law for a very long time. It was originally
based on the separation of powers, as a way to limit the extent to which rulers could influence the
criminal law. Section 35(3)(l) and (m) of the Constitution entrench the principle.

The content of the principle of legality

In its traditional formulation there are five components of the principle (these are today
entrenched by various constitutional provisions which are considered below alongside the
historical principles):

1) A court may only find you guilty of a crime if the conduct was recognized by law as a
crime when it was committed (ius acceptum). Section 35(3)(l) of the Constitution states
that “every accused person has the right not to be convicted for something that was not an
offence at the time it was committed or omitted.”
2) Common-law and statutory crimes must be reasonably certain (ius certum). This
doesn’t have explicit constitutional entrenchment, although Section 35 (3)(a) reinforces
this by recognizing the right to be informed of a charge with sufficient details.
3) There can be no conviction of or punishment for conduct not previously defined to be a
crime (ius praevium) (i.e. one must know that something is a crime in advance). Section
35 (3)(l) also entrenches this principle.
4) A court should interpret the definition of a crime narrowly (i.e. in favour of the accused)
in the case of uncertainty (ius strictum). Section 35(3)(n) states that the less severe
punishment must be given if the punishment has been changed since the crime was
committed (this is permissible retrospectivity, because it is to the benefit of the accused).
5) Punishment: The punishment for crimes must also be clearly prescribed by law in
advance. Section 35 (3)(n) also entrenches this principle.

The application of this fifth aspect of the principle of legality was illustrated in the case of NDPP v Prins.
The high court refused to uphold a conviction of ‘sexual assault’ in terms of the Sex Offences Act because
it did not impose a sanction for the crime. The court inverted the maxim of ‘no punishment without law’ to
the effect that it stated there is ‘no law without punishment’. This reasoning was however faulty as (a) the
CPA provided that anyone convicted of an ‘offence’ in the act would be subject to certain procedures, (b)
such a failure to include a ‘penalty clause’ may simply imply judicial discretion in sentencing, and (c) this
reasoning implies that the courts can never sentence common law crimes. This decision was overturned by
the SCA.

Judicial Creation of Crimes

The saga regarding the principle of legality begins in South Africa in R v Forlee in 1917 in the
TPD. The question which the court had to decide was whether a court can create a crime by
implication (i.e. the legislature sets out a prohibition in a statute without providing a ‘sanction’ or
‘punishment’). The court held that it can create the crime by implication, where there is a
prohibition that doesn’t mention a penalty. However in Francis 1994 (C), Ackermann J said
(obiter) that the Forlee principle is contrary to the principle of legality. This has been emphasised
subsequently, particularly in terms of the norm of certainty. Only the legislature, as the
representatives of the people, can create crimes.
Judicial Extension of Crimes (i.e. interpret law to cover new situations)
The best example of this is the potential extension of the crime of ‘theft’ (which requires
corporeal property) to incorporeals. There may be a very subtle line between interpretation and
innovation. It is clear that the court cannot innovate, but can they extend?

Inconsistency: On the one hand, in S v Von Mollendorff 1987, dealing with blackmail, the court
emphasised the principle of legality by refusing to extend the common law crime of extortion to
cover non-pecuniary or non-patrimonial loss. The legislature promptly stepped in and extended
the definition in 1992 by means of statute. Farlam J also specifically refused to extend the crime
of theft to include theft of electricity in S v Mintoor. However, on the other hand, the courts have
(a) extended theft to cover theft of credit, (b) extended the crime of defeating the administration
of justice to include the pre-trial conduct of police.

The criminal law must be set in advance of the conduct, and there is a presumption against
retrospectivity in statutes. This is a rebuttable presumption and it is important to note that both
courts and the legislature can contravene the principle of legality.

It is important to note the subtle distinction drawn in Carolus between retrospectivity and
retroactivity (the stronger form). A retroactive statute is one that operates from a time prior to its
enactment; a retrospective statute is one that operates in the future only (so is prospective in that
sense) but applies to past events.

Masiya v Director of Public Prosecutions 2007 (5) SA 30 (CC)

Facts:
The accused was tried and convicted on a charge of raping a nine-year-old girl. The
complainant’s evidence established forced anal penetration of her by the accused. The common
law definition of rape at the time was unlawful intentional sexual intercourse with a woman
without her consent. The High Court held that the common law of rape should be developed to
include non-consensual anal penetration defined in gender-neutral terms.

Nkabinde (majority):
The majority held that the common law crime was not unconstitutional insofar as it does
criminalise conduct that is clearly morally and socially unacceptable. She looked at the history of
the crime of rape and held that has always predominantly been a crime committed by men against
women, and therefore the definition of the crime is not unconstitutional, but should be developed
to include anal penetration of a female.

She highlighted three important considerations that favour restraint on the part of the court (i.e.
why we shouldn’t extend the crime further than we must):

a) What is at issue is extending the definition of a crime (i.e. something the court should
only do in exceptional circumstances). This is ultimately a statement of the principle of
legality. However as the court had already there appears to be no reason to stop short of
taking the development to its logical and constitutional conclusion (i.e. leaving the
definition in its gender-specific and potentially unconstitutional state).
b) The development would entail statutory amendments and necessitate law reform. In other
words, it’s for parliament to do not the courts.
c) Rape has been, and continues to be a crime of which females are its systematic target.
Crucial for the principle of legality, is the fact that the court (both majority and minority) held
that the new definition would not apply retrospectively to Mr. Masiya himself.

Langa CJ (minority):
The minority agreed with the majority that the common law needed to be extended to include anal
rape of women, but, emphasising dignity, equality and freedom, held that the common law should
be further extended to include anal rape of males as well. This was justified as follows;

1. This was less an ‘extension’ than it was a ‘recategorsiation’ of what always constituted
sexual assault (i.e. it was criminal either way). Burchell hates this. Fair labelling
necessitates that we don’t adopt the attitude that just because conduct is criminal we can
classify it how we wish (the implications are significantly different).
2. Protection of men against anal rape will not diminish the protection for women.
3. Young boys, prisoners and homosexuals (those men most likely to be anally raped) are,
like women, vulnerable groups in our society.

Reinterpretation Permissible
Thus both the majority and the minority implicitly accept that the principle of legality allows
reinterpretation of the common law definition of rape. Kelly Phelps argues that the principle of
legality has never completely prohibited any development of the common law. She gives the
examples of theft of credit, and the extension of defeating or attempting to defeat the
administration of justice from judicial proceedings to pre-judicial proceedings involving the
police. Thus, the question arises as to when it is permissible and when it is not permissible for the
courts to reinterpret the law to bring new circumstances under an old definition.

Phelps makes the argument that the minority judgment brings the law into the constitutional
realm (the majority left the common law unacceptably gender specific). She distinguishes the
case of the common law of rape from hypothetical examples given by Snyman (“should we go
and extend the common law of housebreaking to include breaking into a car?” asks Snyman) on
the basis that this case specifically involves a common law definition that is unconstitutional.

Correct approach?
Although the fundamental principle of legality has in general acted as a necessary limitation on
the courts, as opposed to the legislature, developing the scope of common law criminal offences.
On the one hand it is clear that where the common law is silent on the precise range of an
otherwise reasonably well defined crime, the courts have been prepared to include new,
analogous circumstances within the old definition. However, on the other hand, where the case
law specifically excludes development of an extension, then development should be left to the
legislature (i.e. ideas or electricity where no overriding constitutional imperatives require the
extension by the courts).

Correct approach is thus where the common-law is silent there can be interpretation and development in
terms of constitutional parameters; if there’s a specific exclusion then no development is permitted by the
courts. If meaning is to be given to s 39(2) and s 8(3) then the courts must be given some power to develop
the criminal law in compatibility with the Bill of Rights.

What we have to recognise in Masiya is that every single Constitutional Court judge recognised
the principle of legality in its presumption against retrospectivity. So even if you think, like
Snyman, that the principle of legality has been compromised – there is one aspect that has
certainly not been. The crucial question is how far will courts in South Africa go in developing
the common law to bring it into line with the Constitution, remembering that the principle of
legality is also a fundamental part of the Constitution?