Criminal Law:

Values of Criminal Law - Principle of Legality

DEFINITION:
● The principle of legality proclaim that punishment may only be inflicted for contravention
of a clearly defined crime created by a law that was in force before contravention
● The principle of legality is a mechanism to ensure that the state, its organs and its
officials don’t consider themselves to be above the law
● The principle of legality (nullum crimen sine lege) which is of European origin is at the
core of the Rule of Law and respect for human dignity.
● Part of the common law as well as S 35(3) of the Constitution
● An accused can’t be found guilty of a crime unless the type of conduct has been
recognised by the law as a crime, in clear terms, before the conduct took place and after
conviction, an accused can’t be sentenced unless the punishment complies with the
principles

TRADITIONAL APPROACH TO LEGALITY:

● Ius Acceptum: A court may only find and accused guilty of a crime if the conduct
performed by the alleged criminal was recognised by law as a crime
● Ius Certum: Common law and statutory crimes must be defined with reasonable
precision
○ Vaguely worded criminal law impair the right of the accused to a fair trial
○ The constitutional court in Savoi has stated that although overbreadth is not a
self-standing ground for constitutional invalidity it becomes relevant with the
limitations clause.
● Ius praevium: There can be no conviction of, or punishment for, conduct not previously
declared to be a crime
○ A distinction is drawn between “retrospectivity” and “retroactivity”
○ The constitutional court reinforced the rule against retrospective application of the
criminal law in a case involving the interpretation of statutory provisions
regulating the transition from the common law crime of rape to a new broader
definition.
○ Since the enactment of the Constitution on SA in 1996, the rule against
retrospectivity has become more than a tool of interpretation - it is right not to be
subjected to retrospective criminal provisions.
○ The courts lack the power to create new crimes
● Ius Strictum: A court should interpret the definition of crime narrowly rather broadly in
favour of the liberty of the individual, it must be strict.
○ The courts must work in ​Favorem Libertatis
○ If there is doubt that doubt must work in favour of the accused
● Nulla poena sine lege: there can be no punishment unless there is a contravention of
law which defined the offence with reasonable precision and in advance of its
perpetration

Notes adapted from Snyman Principles of Legality and Burchell Principles of Criminal Law
 ○ Judge is creating a crime that doesn't exist in SA law
○ Nullum crimen sine poena stresses that punishment is an integral factor in the
concept of crime and serves to distinguish a chrome from other wrongdoing

*When being asked in a test a scenario will be given as you will have to identify which principles
were violated in the scenario and why you think it’s been violated*

RATIONALE:
● Basis of legality is that policy that rules of the criminal law must be clear and precise as
possible so that people know in advance what is a crime and can, therefore, avoid
committing one. - the principle of fair warning

PRINCIPLE OF LEGALITY IN SA LAW - Constitution

● Section 34 (3) ​L​ stated every accused person has the right to a fair trial and in the
subsection, it says that a fair trial includes no being convicted of an act that wasn’t an
offence at the time it was committed
○ Also says there is the right to the benefit of the lease severe punishment if the
prescribed punishment for the offence has been changed between the time of the
offence and the time of sentencing
○ Relates to Ius Praevium and Ius Acceptum
● Section 35 (3) n relations to nulla poena sine lege
● Most import crimes as well as most general principles are derived from common law and
therefore not contained in legislation - criminal law uncodified

Cases:
1. Veldman v Director of Public Prosecutions, Witwatersrand
- Was a murder and convicted in the regional court.
- The maximum sentence was 10 years - which applied when he was convicted
- Case delayed, and pleaded guilty
- Before he was sentenced, legislation changed to maximum sentence 15 years
- The judge changed his connection to 15 years
- He took his case to the constitutional court as he believed his right to a fair trial has been
violated, was it in violation of the principle of legality
- The court's decision was that is was a violation
- Section 35 (3) N: there is a presumption is retrospective
- Ius Praevium was violated

2. Rex v Forlee 1917 TPD 52

- Forlee accused of running an opium den
- Act he’d been charged come into action few years before (1909)
- All act said:
- Selling or supplying opium is prohibited
- Rehash of earlier 1906 act
- Thus, only legal prescription (not a valid definition of crime)
- Court can’t make it a crime (violates ius acceptum)

Notes adapted from Snyman Principles of Legality and Burchell Principles of Criminal Law
 3. S v Francis and another 1994
- Left rehabilitation centre
- Appeared before court
- 1993 made no provision for criminalising absconding from the rehab centre, it should be
dealt with internally

IUS ACCEPTUM RULE:

Ius Acceptum rule in common law crimes:

● If common-law crimes don’t form part of SA law (no prosecutions) they can’t be
recognised by courts (S v Solomom)
● In SA, Ius Acceptum must be understood to denote the common law and the existing
statutory law
● Some types of conduct might be wrong on a moral or religious point but might not be
prohibited by law
○ Even if they are prohibited by law might not be a crime
● A court is not empowered to punish conduct simply because it “deserves” to be punished
accessory to the conception of morality, religion, politics, etc
○ They can create new defences or existing the scope of an existing defence

Ius Acceptum rule in crimes created by parliament:

● If parliament wishes to create a crime, an act will comply with the principles for legality if
it declares that the particular type of conduct is a crime and what the punishment is.
● It’s not always clear in the wording of an Act whether the conduct in a crime or not
○ A court should only assume a new crime has been created if it appears
unambiguously from the wording of the act
● A legal norm: An act is merely a rule, the infringement of which is not a crime
● Criminal norm: A provision in the act stating clearly that certain conduct constitutes a
crime
● Criminal sanction: Provision in the act prescript the parameters of punishment a court
must impose if the person is found guilty

THE PRINCIPLE OF LEGALITY IN LIGHT OF MASIYA:

● In the Masiya v Director of Public prosecutions, the accused was tried and convicted by
a magistrate on a charge of anally raping a 9-year-old girl
○ The common-law crime of rape is penile-vaginal intercourse
○ The majority of the Constitutional Court held that the common law definition of
rape was not unconstitutional in so far as it criminalised conduct that is clearly
morally and socially wrong
○ They developed the definition to include anal penetration of a female but this did
not extend to anal rape for males
● According to the principle of legality, it would be unfair to apply the developed definition
of rape to the accused in this case

Notes adapted from Snyman Principles of Legality and Burchell Principles of Criminal Law
Criticism of Masiya by Snyman:
- Believed that the constitutional court overstepped its judicial function and violated the
principles of legality and took over the function of legislature
- Argues that the Constitutional court judgement leads to legal uncertainty
- Says this opens doors for the common law to be extended in other ways in the future
- Snyman believes that the definition of penile-vaginal penetration doesn’t discriminate
against women and therefore there is no need to extend it.
- Believed viaganal must be treated differently as it can lead to pregnancy

THE PRINCIPLE OF LEGALITY IN RETROSPECT AND PROSPECT:

● The fundamental principle of legality has acted as an added brake on the courts rather
than the elected representatives of the people developing the scope of criminal law.
○ It is clear that courts are prepared to include new circumstances within the old
criminal definition
○ However where the case law specifically excluded developed of the criminal law
then development is left to the legislature
● Section 8(3) of the Constitution requires a court in giving effect to a right in the Bill of
Rights to develop where necessary the common law to the extent that legislation doesn’t
give effect to that right

Prohibition on the creation of crimes with retrospective effect (ius praevium)

● The creation of a crime with retrospective effect is in conflict with the principle of legality -
the ius praevium rule
● This rule is incorporated in section 35(3)(L) of the constitution which provides that every
accused has a right to a fair trial
● Any provision by any legislative body which creates a crime with retrospective effect is
null and void.

Crimes must be formulated clearly:

● If the formulation of a crime is unclear it’s difficult for the subject to understand exactly
what is expected of him.
● A widely formulated criminal provision violated the principle of legality because it can
serve as a smoke-screen which state can hide a particular type of act which ti wished to
proscribe
● “Void for vagueness” rule is based on the norm that if the legislation is unclear, it can’t be
stated that the act in question constituted an office prior to the court's interpretation of
the legislation
● It is impossible to comply with Ius certum in every respect
○ We can’t create laws so precisely that there will never be any differences in
opinion regarding interpretation and application

Notes adapted from Snyman Principles of Legality and Burchell Principles of Criminal Law
Provisions creating crimes must be interpreted strictly:
● The general principle of legality can never be undermined if the court is free to interpret
the concepts contained in the definition widely or extend their application of
interpretation
● There is a rule when interpreting statutes that crime creating provisions are both acts of
parliament and subordinate legislation must be interpreted strictly - in favorem libertatis
○ The act should be interpreted to weigh in favour of the person committing the
conduct but only where doubt exists concerning the interpretation of a criminal
provision
● A court is not free to extend the definition of a common-law crime by means of wide
interpretations
● The principle of ius strictum implies that a court is not authorised to extend a crime’s field
of application by means of analogy to the detriment of the convicted
○ Analogy refers to a partial resemblance between two concepts
○ This applies to statutory and common law crimes

The principle of legality in punishment:

● When dealing with punishment the principles of legality apply equally
○ Usually expressed by nulla poena sine lege - not punishment without crime
Ius Acceptum
● The court can’t impose a punishment unless the punishment if its nature and extent,
isn’t recognised by statutory or common law
● For statutory crimes, the maximum penalty which can be imposed for each crime is
usually stated
● If the legislature creates a crime it should also set out the punishment (to comply with
legality)
○ If the legislature creates an offence but omits
● This limits the possibility of arbitrary punishment for the crime being imposed
Ius praevium
● If the punishment for a certain crime is increased it mustn’t be applied to the detriment of
an accused who committed the crime before the punishment was an increase
○ The right to a fair trial
● This rule doesn’t apply when the legislature reduces the punishment
Ius certum
● The principle of punishment is that the legislature should not express itself vaguely or
unclearly when creating and describing the punishment
Ius Strictum:
● Where a provision in an act which creates and prescribes a punishment is ambiguous,
the court must interpret the provision strictly

Notes adapted from Snyman Principles of Legality and Burchell Principles of Criminal Law