Study Unit 2 (CRW2601) – The Principle

of Legality as entrenched in the

Constitution of South Africa
2.2 The Concept of Legality
Read case book 3 – 22

First question of criminal liability is whether the act was recognised by the law as a crime.

If something is prohibited by law, it MAY NOT be considered a crime.

Not every contravention of a legal rule constitutes a crime.

Principle of legality also known as: nullum crimen sine lege (no crime without a legal provision)

Principle of legality is in section 35(3)(1) of the Constitution.

2.3.2 Rules embodied in the principle

5 rules:

1. Ius acceptum – court can only find someone guilty of a crime, and cannot ‘create a crime’.
2. Ius praevium – court can only find someone guilty if the crime was a legal crime at the time
of the commission of the act
3. Ius certum – crimes cannot be formulated vaguely
4. Ius strictum – court must interpret the definition narrowly rather than broadly
5. Nulla poena sene lege (nulla poena) – when someone is found guilty the above 4 rules must
be applied in the sentence

Judges function is not to create law, but to interpret it.

Diagram from pg 15 here.

2.4 Ius Acceptum – conduct must be recognised by the law as a

crime
RSA criminal law is not codified, therefore it comes mainly from common law.

Even though we use common law, it must be clear that the conduct is considered a crime in common
or statutory law. If this is not so, the court cannot convict the accused.

In RSA ius acceptum refers to common and statutory law.

2.4.1 Common-law crimes

There can be no crime where provision has not been made for such a crime/act in common-law.

Case law: Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC)

 Legislature (not courts) has mandate of law reform

 Balance of powers and functions should be recognised and respected
2.4.2 Statutory crimes
If parliament wants to create a crime, the act will best comply with the principle of legality if it
expressly declares that:

1. That particular type of conduct is a crime

2. What punishment must be imposed upon a person convicted of that crime

When the wording in an act is unclear if a crime has been created:

 Court should assume a crime has been created only when it appears unambiguously in the
text
 If the act does not expressly declare that a crime has been created, it should be slow to
interpret the conduct as such
 Consideration of ambiguous wording in acts should be interpreted in the favour of the
accused (Hanid 1950 (2) SA 592 (T))

Legal norm – provision creating a legal rule that does NOT simultaneously create a crime

Criminal norm – provision that makes clear certain conduct is a crime

Criminal sanction – provision of what punishment a court must impose

A simple legal norm will not without strong and convincing evidence to the contrary create a
criminal norm.

Before we can accept that a crime has been created, the provision must contain a criminal norm.

What if a criminal norm is created, but not a sanction?

Supreme court of appeal rejected the contention that conduct that breaks a criminal norm that has
no sanction attached to is not a crime. – Director of Public Prosecutions, Western Cape v Prins 2012
9 SACR 183

When there is no sanction but clearly the Act means to create a specific crime, it is up to the court to
decide the punishment.

Ideal is that the legislature will create a maximum punishment for a crime.

2.5 Ius Praevium - Crimes should not be created with retrospective

effect
Crime cannot take place if it is not recognised as a crime at the time.

Retrospective effect (ex post facto) is contrary to the principle of legality.

Ius Praevium is expressly set out in the Constitution Section 35(3).

Any law that violates the Bill of rights may be declared null and void.

Masiya – Rape was defined as penetration of the penis into the vagina. Constitutional Court rules
that penetration of the penis into the anus would only be applied proactively (going forward).

2.6 Ius Certum – Crimes must be formulated clearly

Even if ius acceptum (accepted as a crime) and ius praevium (not in retrospect) are complied with
the principle of legality can still be undermined by the creation of criminal norms which are created
vaguely or unclearly.

The Constitution contains no express provision with regards to ius certum.

Section 35(3) can however be read to include this rule.

 Right to a fair trial

 Conduct may be seen as breaking a criminal norm

2.7 Ius Strictum – provisions creating crimes must be interpreted

strictly
Even if Ius Acceptum, Ius Praevium, and Ius Certum have been complied with, Ius Strictum not
complied with can still undermine the principle of legality. The court would be free to interpret he
law in any which way they liked – as broadly as they wanted.

Well known that crime creating provisions should be interpreted very strictly.

Underlying idea is that when an Act is unclear it should be interpreted in favour of the accused
(given the benefit of the doubt).

In Mayisa the Con Court held that a High Court may in exceptional circumstances, extend the field of
application of a crime in order to promote the Constitution.

Read Masiya case in casebook 3-15, and Mshumpa 2008 (1) SACR 126 (E) casebook 264-275
(compare with decision in Masiya)

2.8 Principle of Legality in Punishment

In dealing with punishment the previous rules (ius acceptum, ius praevium, ius certum ,and ius
strictum) also apply.

Application of the principle of leglaity to punishment is often expressed by the maxim nulla poena
sine lege – no penalty without a statutory provision or legal rules.

 Court cannot impose a punishment that is not recognised in statutory or common law
 Court cannot impose a punishment retrospectively
 Legislature cannot create vague or unclear punishment
 Where the provision of a punishment is described, the court must interpret it strictly