2.2 The Concept of Legality - Unisa Study Notes



Study Unit 2 (CRW2601) – The Principle of Legality as entrenched in the Constitution of South Africa2.2 The Concept of LegalityRead case book 3 – 22First 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 principle5 rules:Ius acceptum – court can only find someone guilty of a crime, and cannot ‘create a crime’.Ius praevium – court can only find someone guilty if the crime was a legal crime at the time of the commission of the actIus certum – crimes cannot be formulated vaguelyIus strictum – court must interpret the definition narrowly rather than broadlyNulla poena sene lege (nulla poena) – when someone is found guilty the above 4 rules must be applied in the sentenceJudges 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 crimeRSA 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 crimesThere 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 reformBalance of powers and functions should be recognised and respected2.4.2 Statutory crimesIf parliament wants to create a crime, the act will best comply with the principle of legality if it expressly declares that:That particular type of conduct is a crimeWhat punishment must be imposed upon a person convicted of that crimeWhen 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 textIf the act does not expressly declare that a crime has been created, it should be slow to interpret the conduct as suchConsideration 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 crimeCriminal norm – provision that makes clear certain conduct is a crimeCriminal sanction – provision of what punishment a court must imposeA 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 183When 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 effectCrime 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 clearlyEven 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 trialConduct may be seen as breaking a criminal norm2.7 Ius Strictum – provisions creating crimes must be interpreted strictlyEven 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 PunishmentIn 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 lawCourt cannot impose a punishment retrospectivelyLegislature cannot create vague or unclear punishmentWhere the provision of a punishment is described, the court must interpret it strictly ................
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