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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 goes back to the Middle Ages, to the days of despotic leaders who used the law as a method of authoritarian rule. It was originally based on the separation of powers, ...

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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 goes back to the Middle Ages, to the days of despotic leaders who used the law as a method of authoritarian rule. It was originally based on the separation of powers, as a way to limit the extent to which these rulers could influence the criminal law. If you look at the French Revolution, the famous Declaration of the Rights of Man proclaimed that ‘no person shall be punished except by virtue of a law enacted and promulgated previous to the crime and applicable to its terms’. So don’t assume that the principle was created by the Constitution in 1996. Although s 35(3)(l) and (m) do refer to and entrench the principle, it has historic common law roots. The content of the principle of legality But what was of the scope of the principle as defined by our courts prior to the Constitution? If one looks at the principle of legality in terms of its traditional formulation one would say that there are 5 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 (ius acceptum). Section 35(3)(l) of the Constitution states that “every accused person has the right to a fair trial which includes the right not to be convicted for an act or omission that was not an offence under either national or international law 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 so as to be able to answer it. 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 rather than broadly and in favour of the levity of the individual 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 between the time the crime was committed and the time at which the person was sentenced (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. Basically, 4) and 5) read together imply that retrospectivity is fine, as long as it is to the benefit of the accused.

The saga regarding the principle of legality begins in South Africa in R vForlee in 1917 in the TPD. The question which the court had to decide was: can a court create a crime by implication? Say, for example, the legislature sets out a prohibition in a statute: “no one may travel on a train without a 1

ticket.” If a court were interpreting this section, would it be permissible for the court to find that there is a sanction, even though one isn’t stated? The court held that it can create the crime by implication, where there is a prohibition that doesn’t mention a penalty. Then in Francis 1994 (C), Ackermann J said that the Forlee principle is contrary to the principle of legality, by way of a strong obiter statement. 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. The criminal law in the common law is cast in stone. Judicial law making is by its very nature retrospective and uncertain. Is a court entitled to interpret the law in such a way as to cover new situations? In the old days, for theft of money, you had to steal something tangible. Nowadays, you can move money around with the click of a mouse. Could the law include these circumstances? Could it include the theft of ideas? Could the law extend the crime of blackmail or extortion to obtaining a non-patrimonial advantage? There may be a very subtle line between interpretation and innovation. We know that the court can’t innovate. But what about the above circumstances? In S v Van Mollendorff 1987, dealing with blackmail, the court emphasised the principle of legality by rejecting the argument advanced by counsel that the common law of extortion be extended to cover non-pecuniary or non-patrimonial loss. The legislature promptly stepped in and extended the definition in 1992 by means of statute. If you look at it from a procedural perspective this seems to be the right way – letting the elected representatives of the people have their say. But our courts haven’t been that consistent. They have for example, extended theft to cover theft of credit. They have interpreted the crime of defeating or attempting to defeat the administration of justice to include not just court proceedings, but the pre-trial conduct of police. Farlam J, however, specifically refused to extend the crime of theft to include theft of electricity in S v Mintoor. How do we reconcile these approaches? We’ll deal with that shortly. 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’ll be interesting to see what happens with the Prevention of Organised Crime Act which has a number of specifically retrospective provisions. But its important to be aware that both courts and the legislature can contravene the principle of legality. Take note of 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 imposes new results in respect of past events. Let’s now consider the Masiya case: Masiya v Director of Public Prosecutions Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) 2007 (5) SA 30 (CC) Facts: The accused was tried and convicted by a magistrate in the Regional court 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. Ranchod J in the High Court held, upholding a bold judgment

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from the Magistrates court, that the common law of rape should be developed to include nonconsensual anal penetration defined in gender-neutral terms. Nkabinde (majority): Nkabinde J 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 – something the court should only do in exceptional circumstances. This is ultimately a statement of the principle of legality. But hasn’t the judge just extended the definition of rape, and then stopped short of extending it further on the grounds of the principle of legality? Surely, says Burch, once you’ve engaged in development of the law there isn’t a reason to stop short of taking the development to its logical and constitutional conclusion. There is an argument that leaving the definition in its gender-specific form left it in an 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. They gave three reasons for this conclusion: 1. This was not so much an extension as it was a recategorsiation of what always constituted sexual assault (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 of being a sexual offender as opposed to a rapist are significant. 2. Protection of men against anal rape will not diminish the protection of women against rape. 3. Young boys, prisoners and homosexuals (those men most likely to be anally raped) are, like women, vulnerable groups in our society.

So, both the majority and the minority implicitly accept that the principle of legality is not infringed by the 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. 3

Snyman agrees that these two extensions mentioned by Phelps don’t infringe the principle of legality. Or, at least he’s never argued that they do. So the question really becomes, when can courts interpret the law in such a way as to bring new circumstances under an old definition, and when would it be impermissible for them to do so? Phelps makes the argument that the minority judgment brings the law into the constitutional realm – the majority judgment 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. So what’s the correct approach? Although the fundamental principle of legality has in general acted as a needed brake on the courts rather than the legislature developing the scope of common law crime, it is nevertheless clear that where the common law has been silent on the precise range on an otherwise reasonably specifically defined crime, courts have been prepared to include new, analogous circumstances within the old definition. In fact, it was stressed in S v Graham, where the crime of theft was extended to credit, that the criminal law must be “living”. However, where the case law specifically excludes development of an extension, then development should be left to the legislature. For instance, the SA criminal law has a long established reluctance to extend the crime of theft to ideas (R v Cheeseborough 1948 (TPD) or electricity (S v Mintoor). Since no overriding constitutional imperatives require the extension of the criminal law by the courts to these areas, the legislature should be the appropriate vehicle for any perceived change. So that’s the approach that Burchell thinks this is correct: if the common-law is silent then 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 that remains unanswered: 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? THE CONSTITUTION AND THE CRIMINAL LAW Criminal law has been given a head start in the process of constitutionalisation. As Kentridge JA acknowledged in Du Plessis v De Klerk 1996 (CC): The enforcement of the criminal law involves the state acting in its executive and administrative capacities, and as a result the rules of criminal law must be compatible with the provisions of the Bill of Rights, and the Constitution as a whole. Let’s look at some specific aspects of the Constitutional Court’s jurisprudence (many of these cases are discussed at various points in the course):

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1. Punishment: A central distinguishing feature of criminal law remains the concept of punishment. Constitutional Court judgments on punishment, in the domain of capital and corporal punishment, have exerted a more humane influence on the domain of sentencing policy. However, the endorsement in S v Dodo (2001) of the approach taken to the minimum sentence framework by the SCA in S v Malgas is more controversial as it unnecessarily limits that most hallow of judicial discretions: the discretion of a judge in sentencing a convicted person. Since Makwanyane and the introduction of minimum sentencing, our life imprisonment sentences have increased tenfold. Ten-year sentences have increased fourfold. As Cameron J has noted, minimum sentence legislation has “bitten hard”. It has been decided in Centre for Child Law (Cameron J) that the minimum sentencing policy does not apply to juveniles, and that legislation that attempted to impose minimum sentencing on juveniles was unconstitutional. Yacoob J wrote a dissenting judgment – he claimed that “substantial and compelling reasons” can be used to depart from minimum sentences. He also said that the court does not start with the minimum sentence, but that it is considered along with other factors. This, according to Burchell, is clearly wrong. A suggestion has been made by the Law Reform Commission that we should have a sentencing council and sentencing guidelines. Historically, principles have been bent by judges in order to avoid having to impose the death penalty. Thankfully, since Makwanyane, the principles of law do not need to be bent as the spectre of the death penalty does not lurk in the back of judges’ minds. 2. No Criminal Liability Without Fault: O’Regan J in Coetzee affirmed the fundamental principle that: “people who are not at fault should not be deprived of their freedom”. As a general rule, fault, either in intention or negligence is a requirement of criminal liability. (There are a limited number of strict liability exceptions). 3. Principle of Legality: As discussed in Masiya. 4. Presumption of Innocence and Reverse Onuses There is a golden thread running through the criminal law, which is the presumption of innocence. It was held in S v Zuma (1995) CC that not all statutory provisions which create reverse presumptions in criminal law are invalid. It is possible that in the interests of social need a reverse onus could be declared valid. (Although it is difficult to see how a reverse onus could go to the CC and not be regarded as invalid. There is a strong indication that the CC is opposed in principle to reverse onuses). But there do still exist some statutory provisions which shift the onus onto the accused – it remains to be seen what the Court decides about these. Under common law we have a reverse onus in the defence of insanity. 5. Organised Crime

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NDPP v Mohamed: The Constitutional Court endorsed the importance of the constitutionality of the proportionality enquiry between the offence and the purpose of POCA (Prevention of Organised Crime Act), and placed the burden of proof on the NDPP. Sachs J offered a compelling solution to the controversial question whether these provisions in POCA apply beyond the scope of organised crime by emphasising proportionality. The more the remote the offence in issue is to the primary purpose of POCA, the more likely it is that the forfeiture of the instrumentality of the crime is disproportionate. Schaik v State involved an examination by O’Regan ACJ of the Prevention of Organised Crime Act. She suggested that differences in “formulations of the right to fairness in civil and criminal procedure in Europe and SA” did not convince her that the primary purpose of chapter 5 was punishment, although it may have a punitive effect. 6. Common Purpose Liability The CC has affirmed the common purpose rule as formulated by the Courts (in S v Mgedezi) as constitutional in Thebus (2003). The important issue of the fair labelling of offences arises in this context. 7. Sodomy National Coalition for Gay and Lesbian Equality found that the provisions of the Sexual Offences act offence of sodomy are unconstitutional and invalid 8. Prostitution S v Jordan. The majority of the Constitutional Court affirmed the criminality of prostitution, while the minority (O’Regan and Sachs JJ) regarded s 20 (1)(aA) of the Sexual Offences Act as constituting indirect unfair discrimination of prostitution on the basis of gender. But we still don’t have a situation where both parties in prostitution are dealt with in the same way.

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AN OUTLINE OF THE GENERAL PRINCIPLES OF CRIMINAL LIABILITY For criminal liability to result, the State must prove, beyond reasonable doubt that the accused has committed: i) Voluntary conduct which is unlawful; accompanied by ii) Criminal capacity; and iii) Fault The overriding principle of South African Criminal Law is enshrined in the maxim actus non facit reum nisi mens sit rea, meaning that an act is not lawful unless there is a guilty mind. (There are a few strict-liability offences, but they are few and far between) 1. UNLAWFUL CONDUCT

A. VOLUNTARY HUMAN CONDUCT Whether a juristic person can be held to be criminally liable is dealt with in S 332 of The Criminal Procedure Act. It was originally doubted, but modern society and rife criminal activity in companies has changed that view. The Voluntariness Element Conduct must be voluntary, in that it is controlled by the accused’s conscious will. Where for some reason or another, a person is deprived of the freedom of his will, his actions are involuntary and he cannot be held criminally liable for them. Even an omission must be voluntary in the sense of being controlled by the accused’s conscious will. Conduct is considered to be involuntary if it takes the form of automatism. This covers conduct that occurs during sleep, black-out, dissociation, hypnosis, or is the result of arteriosclerosis, concussion, epilepsy, heavy intoxication, provocation or severe emotional stress. For authority: voluntary conduct was described in S v Chretien as “deur die gees beheer” or “controlled by the will”. A distinction is drawn between sane and insane automatism. Insane automatism results from a pathological mental condition, and requires the accused to prove that condition on a balance of probabilities. In other words, there exists a presumption of sanity which originates in the English law. Placing the burden of proof on the accused is a questionable infringement of the presumption of innocence. A verdict of “not guilty by reason of mental illness or defect” usually results in detention in a mental hospital. This burden does not apply in other forms of automatism and incapacity – an accused raising the defence of non-pathological automatism or incapacity does not bear a burden of proof, but at most bears an evidential burden of laying a foundation for the defence. In these cases a verdict of “not guilty” is an unqualified acquittal.

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