Masiya v Director of Public Prosecutions Pretoria (The State) and Another (CCT54/06) [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (CC); 2007 (2) SACR 435 (CC) (10 May 2007)

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Masiya v Director of Public Prosecutions Pretoria (The State) and Another (CCT54/06) [2007] ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (CC); 2007 (2) SACR 435 (CC) (10 May 2007)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
54/06
[2007]
ZACC 9
FANUEL SITAKENI
MASIYA Applicant
versus
DIRECTOR OF PUBLIC
PROSECUTIONS
(PRETORIA) First
Respondent
MINISTER OF JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT Second
Respondent
and
CENTRE
FOR APPLIED LEGAL STUDIES First Amicus Curiae
TSHWARANANG
LEGAL ADVOCACY
CENTRE Second
Amicus Curiae
Heard on : 9 November
2006
Decided on : 10 May
2007
JUDGMENT
NKABINDE J:
This case is about the constitutional validity of the common law
definition of rape to the extent that it excludes anal penetration
and is gender-specific. The case concerns the manner in which the
definition of rape has been understood, developed and interpreted
in South African law. The definition has been debated by the
courts, Legislature and civil society over the years. Essentially,
this matter comes before this Court on two bases. First,
confirmation proceedings in terms of section 172(2)(a)
1
of the Constitution. Second, an application for leave to appeal
2
against the whole of the judgment and order of the Pretoria High
Court
3
in which that Court confirmed the applicant’s conviction by the
Regional Court.
4
The full terms
of the order against which leave to appeal is sought read as
follows:
“
1. The common law definition
of rape is declared to be unconstitutional as it currently stands,
for the reasons given by the learned
Magistrate in his judgment and
for the further reasons set out in this judgment.
The definition of rape is
extended to include acts of non-consensual sexual penetration of
the male penis into the vagina or anus
of another person.
The provisions of Act 105 of
1997 and its schedules and
Section 261(1)(e)
and (f) and (2)(c) of
the
Criminal Procedure Act 51 of 1977
and the schedules to the
latter Act relating to bail provisions are declared to be invalid
and are inconsistent with the Constitution
to the extent that they
are gender specific.
Where the provisions referred
to in (3) above are gender specific there be a reading in of
‘person’ wherever reference is
made to a specific gender.
The proceedings in the Court
a
quo
are determined to be in accordance with justice in terms of
the provisions of Section 52 of Act 105/1997.
Sentencing of the accused is
postponed until the Constitutional Court has made a determination
on the order of Constitutional
invalidity referred to in (3) of
this order.”
As apparent
from paragraphs 1 and 3 of the order, the declarations of
invalidity relate to whether the definition of rape is

constitutionally invalid and whether the specified provisions of
the Criminal Procedure Act 1977 (the CPA)
5
and of the Criminal Law Amendment Act 1997 (the Act)
6
and their relevant Schedules are inconsistent with the Constitution
to the extent that they are gender-specific.
The applicant,
Mr Masiya, is an awaiting-sentence prisoner. The first respondent
is the Director of Public Prosecutions (DPP).
The second
respondent is the Minister of Justice and Constitutional
Development (Minister). She has been joined as a party
to the
proceedings by reason of her being the national executive authority
responsible for the administration of justice. The
first and
second amici curiae, the Centre for Applied Legal Studies and
Tshwaranang Legal Advocacy Centre (amici), respectively,
have been
admitted to assist the Court.
Background
The facts
appear from the judgment of the High Court. I restate only the
relevant facts to make the discussion in this judgment
comprehensible.
Mr Masiya, 44
years of age, was initially brought before the District Court at
Sabie on a charge of rape. The state alleged that
on or about 16
March 2004 at or near Sabie he wrongfully and unlawfully had sexual
intercourse with a nine-year old girl (the
complainant), without
her consent. The case was transferred to the Regional Court at
Graskop where he was tried on that charge.
At the trial Mr Masiya,
represented by an attorney from the Nelspruit Justice Centre,
pleaded not guilty. He elected to remain
silent and did not
advance a statement explaining his plea. The evidence established
that the complainant was penetrated anally.
Mr Masiya
neither gave evidence nor called witnesses to testify. The state
applied that he be convicted of indecent assault,
a competent
verdict on a charge of rape.
7
The defence contended that if Mr Masiya were to be found guilty he
should be convicted of indecent assault.
The Regional
Court, of its own accord, considered whether the common law needed
to be developed. The defence contended that Magistrates’
Courts
do not have the power to pronounce on the constitutionality of a
rule of the common law. The Regional Court remarked
that the
court, “albeit a creature of statute, has jurisdiction in terms
of the Constitution to judge the constitutionality
of a legal
principle under common law and, if necessary to develop the
principle so that it conforms with the constitutional
values
enshrined in our Constitution”.
8
The Court remarked that there is nothing in the Constitution or
other legislation that precludes it from enquiring into or ruling
on the constitutionality of a rule of the common law and developing
it where necessary. It pointed out that sections 8(3)
9
and 39(2)
10
of the Constitution speak, respectively, of “a court” and
“every court, tribunal or forum”.
The Regional
Court remarked further that—
“
[I]n terms of the existing
common law definitions of crime, the non-consensual anal penetration
of a girl (or a boy) amounts only
to the (lesser) common law crime
of indecent assault, and not rape, because only non-consensual
vaginal sexual intercourse is regarded
as rape. One’s initial
feelings of righteousness would however immediately rebel against
such thought. Why must the unconsensual
sexual penetration of a
girl (or a boy)
per anum
be regarded as less injurious, less
humiliating and less serious than the unconsensual sexual
penetration of a girl
per vaginam
? The distinction appears
on face value to be irrational and totally senseless, because the
anal orifice is no less private, no
less subject to injury and
abuse, and its sexual penetration no less humiliating than the
vaginal orifice. It therefore appears
that the common law
definition of rape is not only archaic, but irrational and amounts
to arbitrary discrimination with reference
to which kind of sexual
penetration is to be regarded as the most serious, and then only in
respect of women.”
11
(Footnote omitted.)
The Regional
Court held that the definition should be developed to promote
constitutional objectives, and that courts may develop
the current
definition of rape given Parliament’s lengthy delay in
promulgating the Criminal Law (Sexual Offences) Amendment
Bill of
2003 (the 2003 Bill)
12
so as to afford society the full protection of the Constitution.
The Court held that although the development would impact on
Mr
Masiya’s fair trial rights in terms of section 35(3)(n)
13
of the Constitution those fair trial rights could be limited on the
basis that—
non-consensual
anal penetration already constitutes an offence, namely indecent
assault, and is manifestly immoral and unjust;
retroactive
punishment could have been foreseen by Mr Masiya;
such
development will be consistent with foreign law;
the rights of
society are weightier than those of Mr Masiya not to be convicted
of and sentenced to a more serious offence;
less
restrictive means to achieve the purpose sought to be achieved by
the extension of the definition of rape would have been
for
Parliament to address the lacuna with an appropriate law, but
Parliament has dragged its feet; and
the developed
definition would become law of general application if endorsed by
the High Court upon referral.
The Regional
Court thus extended the definition of rape to include—
“
. . . acts of non-consensual
sexual penetration of the male sexual organ into the vagina or anus
of another person”.
14
It expressly
refrained from ruling on whether non-consensual oral penetration
should constitute the crime of rape as that was not
an issue in the
proceedings. Having convicted Mr Masiya of rape in terms of the
extended definition, the Regional Court stopped
the proceedings and
committed him to the High Court in terms of section 52
15
of the Act for the purpose of sentence.
Section
52(1)(b)(i) of the Act enjoins the Regional Court, when finding an
accused guilty of certain serious crimes including
rape where the
victim is under the age of 16 years,
16
to refer the matter to the High Court having jurisdiction for
purposes of confirmation of conviction and sentencing. The High
Court had to consider whether, on the facts of the case, the
conviction of rape should be upheld and, given its inherent powers
and obligations regarding the development of the common law,
whether the common law definition of rape should be developed.
17
The matter was postponed for further evidence by the High Court in
terms of section 52(3)(d) of the Act.
All the
parties agreed that the complainant’s mother, who had refused to
testify before the Regional Court and to whom the first
report had
been made, should testify about the report and confirm the
complainant’s age. It was also agreed that certain medical
experts, the police who took the complainant’s statement and the
complainant herself, should testify. All these witnesses
did
testify. The evidence is summarised in the judgment of the High
Court. Accordingly, it is not necessary to repeat it.
It suffices
to state that the High Court was satisfied that Mr Masiya had
anally penetrated the complainant. It made the order
which is the
subject matter of these confirmation and appeal proceedings.
The High
Court, relying on certain provisions of the Constitution –
sections 8(1),
18
39(2),
19
,
20
170,
21
172(1)
22
and (2)(a)
23
as well as section 173
24
of the Constitution – with reference to the power of the
Magistrates’ Courts to pronounce on the constitutionality of the
common law, remarked—
“
[I]t would appear that
magistrates’ courts are not explicitly excluded from enquiring
into the validity of the common law: A magistrate’s
court is bound
by the Constitution to apply the Bill of Rights and must interpret
all laws in a manner promoting the Bill of Rights.
It must in a
similar fashion apply the common law but, in this latter instance,
may also [make an enquiry] into the constitutional
validity of any
rule of common law. If, in so doing, the effect results in
invalidity of a common-law rule or principle, then
it must allow for
the competent authority to correct the defect, which will be the
High Court, having inherent power to develop
the common law to bring
it in line with the Constitutional imperatives and, so, to correct
the defect.”
25
Regarding the
need to extend the definition of rape, the High Court found that
indecent assault attracts more lenient sentences
than rape. This
distinction in sentencing, the Court said, results in “inadequate
protection and discriminatory sentencing.”
26
On the question of legality the Court held that the principles are
not applicable and need not be considered as an obstacle
to the
extension of the definition of rape since no new crime is created.
As a prelude to the order set out in paragraph 2 above,
the High
Court said—
“
[T]he unlawful deed the
accused committed is simply given another name . . . . The accused
knew very well that he was acting unlawfully.
It has never been a
requirement that an accused should know, at the time of the
commission of an unlawful deed, whether it is
a common law or
statutory offence, or what the legal/official terminology is in
naming it.”
27
The Court then
referred the declaration of invalidity set out in paragraph 3 of the
order to this Court for confirmation. The imposition
of sentence
was postponed pending the determination of the matter.
Jurisdictional
matter
Section
172(2)(a) requires this Court to consider applications for
confirmation of declarations of invalidity by the High Court.
28
A declaration of constitutional invalidity raises a constitutional
matter which in the ordinary course must be considered by
this
Court. In this case, as indicated earlier, the High Court made an
order of constitutional invalidity which must be considered
by this
Court. That declaration was dependent on the question whether the
common law had been correctly developed by the High
Court. It
follows therefore that this Court has to consider both the
confirmation proceedings and whether to grant leave to
appeal on
the other issues.
The amici
however contended that the application for leave to appeal should
be dismissed on the basis that it would not be in
the interests of
justice to grant leave without this Court having first had the
benefit of the views of the Supreme Court of
Appeal on the question
of the development of the common law. Ordinarily, constitutional
matters involving the development of
the common law should first be
taken to the Supreme Court of Appeal before they reach this Court
because of the breadth of its
jurisdiction and its expertise in the
common law.
29
During argument the amici acknowledged that it would be
impractical to require Mr Masiya to prosecute his appeal first in

the Supreme Court of Appeal
30
while the confirmation proceedings have to be considered by this
Court.
The issues
raised in this matter involve the protection of the rights to
dignity,
31
equality,
32
freedom and security of the person,
33
and children’s rights
34
as well as Mr Masiya’s fair trial rights.
35
As will appear later in this judgment, the case raises
constitutional issues of considerable public importance. Prospects

of success, albeit not decisive in every case, are an important
factor to be considered.
36
I conclude therefore that it is in the interests of justice for
the application for leave to appeal to be granted.
Issues
The primary
questions to be considered relate to—
whether the
current definition of rape is inconsistent with the Constitution
and whether the definition needs to be developed;
whether Mr
Masiya is liable to be convicted in terms of the developed
definition;
whether the
declaration of invalidity of the relevant statutory provisions
should be confirmed;
whether the
merits of the criminal conviction should be dealt with by this
Court; and
appropriate
relief.
Constitutionality
of the definition
It is useful
to examine the historical perspective of the criminalisation of
rape so as to determine its developmental direction.
The word rape
originates from the Latin words
raptus
,
rapio
, and
rapina
– respectively meaning “tearing off, rending
away, carrying off, abduction, rape, plundering”; “to seize,
snatch, tear
way, to plunder a place, to hurry along a person or
thing”; and “robbery, pillage, booty plunder”.
37
As such,
raptus
38
in Roman law was generally understood as an offence consisting of
the violent “carrying away” of women and is better translated
as “abduction”.
39
The crime of rape in Roman law was based on a prohibition of
unchaste behaviour. Punishment of non-consensual sexual
intercourse
protected the interests of the society in penalising
unchaste behaviour, rather than the interests of the survivor.
In this
period, patriarchal societies criminalised rape to protect property
rights of men over women.
40
The patriarchal structure of families subjected women entirely to
the guardianship of their husbands and gave men a civil right
not
only over their spouses’ property, but also over their persons.
41
Roman-Dutch law placed force at the centre of the definition with
the concomitant requirement of “hue and cry” to indicate
a
woman’s lack of consent.
42
Submission to intercourse through fear, duress, fraud or deceit as
well as intercourse with an unconscious or mentally impaired
woman
did not constitute rape but a lesser offence of
stuprum
.
43
In English law
the focus originally was on the use of force to overcome a woman’s
resistance. By the mid-eighteenth century
force was no longer
required for the conduct to constitute rape and the scope of the
definition was increased to include cases
of fraud or deception.
This latter definition was adopted in South Africa.
44
In indigenous
law
45
rape was restrictively defined. Generally, the law stresses the
responsibility of a group rather than of the individual. For
instance in Pedi law, in rape cases women must be assisted by their
fathers or husbands and compensation accrues not to the survivor
but to her household under the guardianship of the husband or the
father.
46
The law excluded cases of sodomy and marital rape. In some
communities intercourse with a prepubescent girl-child was also
excluded from the definition. These acts often merely constituted
assault or “unnatural sexuality”.
47
It is evident
from the history of the law of rape that the object of the
criminalisation of rape was to protect the economic interests
of
the father, husband or guardian of the female survivor of rape, to
perpetuate stereotypes, male dominance and power and to
refer to
females as objects.
With the
advent of our constitutional dispensation based on democratic
values of human dignity, equality and freedom, the social
foundation of these rules has disappeared. Although the great
majority of females, for the most part in rural South Africa,
remain trapped in cultural patterns of sex-based hierarchy, there
is and has been a gradual movement towards recognition of a
female
as the survivor of rape rather than other antiquated interests or
societal morals being at the core of the definition.
48
The focus is on the breach of “a more specific right such as the
right to bodily integrity”
49
and security of the person and the right to be protected from
degradation and abuse. The crime of rape should therefore be seen
in that context.
The current law
of rape
In our law,
rape is understood as the non-consensual penetration of a vagina by
a penis. The generally accepted definition of
rape, according to
Heath J in
Ncanywa,
50
is “the (a) intentional (b) unlawful (c) sexual intercourse
with a woman (d) without her consent.” Heath J remarked that

“[t]he element of unlawfulness is based essentially on the
absence of consent.”
51
The four elements in the definition of rape were echoed by Van der
Merwe J in
S v Zuma
52
in which the absence of
mens rea
was relevant.
53
Burchell and Milton state that the definition of rape is the “the
intentional unlawful sexual intercourse with a woman without
her
consent.”
54
Snyman prefers this definition: “Rape consists in a male having
unlawful and intentional sexual intercourse with a female
without
her consent.”
55
Both share an understanding of “sexual intercourse” as the
“penetration of the woman’s vagina by the male penis”.
56
The
definitions presuppose non-consensual sexual penetration of a
vagina by a penis. The definition of rape is not unconstitutional
in so far as it criminalises conduct that is clearly morally and
socially unacceptable. In this regard it is different from
the
common law crime of sodomy which was declared unconstitutional by
this Court
57
because it subjected people to criminal penalties for conduct which
could not constitute a crime in our constitutional order.
There is
nothing in the current definition of rape to suggest that it is
fatally flawed in a similar manner. The current definition
of rape
criminalises unacceptable social conduct that is in violation of
constitutional rights. It ensures that the constitutional
right to
be free from all forms of violence, whether public or private,
58
as well as the right to dignity
59
and equality
60
are protected. Invalidating the definition because it is
under-inclusive is to throw the baby out with the bath water. What
is required then is for the definition to be extended instead of
being eliminated so as to promote the spirit, purport and objects
of the Bill of Rights.
Moreover the
current law of rape has been affected by statutory developments in
recent decades. In 1993 the rule that a husband
could not rape his
wife, the so-called marital rape exemption, was abolished;
61
and the presumption that a boy is incapable of committing rape was
abolished in 1987.
62
There have also been changes to the law of evidence relating to
sexual offences.
63
These changes reflect our society’s changing understanding of
rape. Due in no small part of the work of women’s rights
activists, there is wider acceptance that rape is criminal because
it affects the dignity and personal integrity of women. The
evolution of our understanding of rape has gone hand in hand with
women’s agitation for the recognition of their legal personhood
and right to equal protection. To this end, women in South Africa
and the rest of the world have mobilised against the patriarchal
assumption that underlay the traditional definition of rape. They
have focused attention on the unique violence visited upon
women.
Much of this activism focused on creating support systems for
women, such as rape crisis centres and abuse shelters;
and also on
the process whereby rape is investigated and prosecuted. It is now
widely accepted that sexual violence and rape
not only offends the
privacy and dignity of women but also reflects the unequal power
relations between men and women in our
society.
The facts of
the present case deal with penetration of the anus of a young girl.
The issue before us then is whether the current
definition of rape
needs to be developed to include anal penetration within its scope.
The facts do not require us to consider
whether or not the
definition should be extended to include non-consensual penetration
of the male anus by a penis. Strong arguments
were presented to us
to the effect that gender-specificity in relation to rape reflected
patriarchal stereotypes inconsistent
with the Constitution. This
Court
64
has stressed that it is not desirable that a case should be dealt
with on the basis of what the facts might be rather than what
they
are.
It can hardly
be said that non-consensual anal penetration of males is less
degrading, humiliating and traumatic and, to borrow
the phrase by
Brownmiller, “a lesser violation of the personal private inner
space, a lesser injury to mind, spirit and sense
of self.”
65
That this is so does not mean that it is unconstitutional to have
a definition of rape which is gender-specific. Focusing on
anal
penetration of females should not be seen as being disrespectful to
male bodily integrity or insensitive to the trauma suffered
by male
victims of anal violation, especially boys of the age of the
complainant in this case. Extending the definition to include
non-consensual penetration of the anus of the male by a penis may
need to be done in a case where the facts require such a

development. It needs to be said that it is not constitutionally
impermissible to develop the common law of rape in this incremental
way. This Court has stated that in a constitutional democracy such
as ours the Legislature and not the courts has the major
responsibility for law reform and the delicate balance between
courts’ functions and powers on one hand and those of the

Legislature on the other should be recognised and respected.
66
The terrains of the courts and Legislature, Chaskalson P said in
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO
and Others
,
67
should be kept separate even though they may overlap. The issue of
male rape is therefore a matter that will no doubt be dealt
with in
an appropriate fashion either by the Legislature or the courts when
the circumstances make it appropriate and necessary
to do so.
The
constitutional role of the courts in the development of the common
law must be distinguished from their other role in considering
whether legislative provisions are consistent with the
Constitution.
68
The latter role is one of checks and balances on the power
provided for in our Constitution, whereby courts are empowered to
ensure that legislative provisions are constitutionally compliant.
The development of the common law on the other hand is a
power that
has always vested in our courts. It is exercised in an incremental
fashion as the facts of each case require. This
incremental manner
has not changed, but the Constitution in section 39(2) provides a
paramount substantive consideration relevant
to determining whether
the common law requires development in any particular case. This
does not detract from the constitutional
recognition, as indicated
above, that it is the Legislature that has the major responsibility
for law reform. Courts must be
astute to avoid the appropriation
of the Legislature’s role in law reform when developing the
common law. The greater power
given to the courts to test
legislation against the Constitution should not encourage them to
adopt a method of common-law development
which is closer to
codification than incremental, fact-driven development.
Accordingly, I
conclude that the definition is not inconsistent with the
Constitution but needs to be adapted appropriately.
The question
remains whether the facts of this case require that the definition
be developed so as to include anal penetration
of a female.
Development of
the common law
The question
of development of the common law was comprehensively discussed by
Ackermann and Goldstone JJ in
Carmichele
69
in which the duty of courts that is derived from sections 7,
8(1), 39(2) and 173 of the Constitution was stressed. The Court

sounded a reminder to judges when developing the common law to “be
mindful of the fact that the major engine for law reform should
be
the Legislature and not the Judiciary.”
70
The Court repeated with approval the remarks of Iacobucci J in
R
v Salituro
,
71
—
“
Judges can and should adapt
the common law to reflect the changing social, moral and economic
fabric of the country. Judges should
not be quick to perpetuate
rules whose social foundation has long since disappeared.
Nonetheless there are significant constraints
on the power of the
Judiciary to change the law. . . . In a constitutional democracy
such as ours it is the Legislature and not
the courts which has the
major responsibility for law reform. . . . The Judiciary should
confine itself to those incremental changes
which are necessary to
keep the common law in step with the dynamic and evolving fabric of
our society.”
72
The Court however
said that “courts must remain vigilant and should not hesitate to
ensure that the common law is developed to
reflect the spirit,
purport and objects of the Bill of Rights . . . whether or not the
parties in any particular case request the
Court to develop the
common law under s 39(2).”
73
Where there is deviation from the spirit, purport and objects of
the Bill of Rights, courts are obliged to develop the common
law by
removing the deviation.
74
The High Court
emphasised the alleged inequality and discrimination engendered by
the definition and the resultant inadequate
and discriminatory
sentences.
75
In oral argument counsel for Mr Masiya argued against the
development only if the developed definition of rape were to apply
to him. The DPP and amici substantially supported the judgment of
the High Court and argued that the definition perpetuates
gender
inequality and promotes discrimination. The DPP further contended
that the definition perpetuates leniency in sentencing.
The Minister
opposed the development. She relied on the decision of this Court
in
S v Mhlungu
and Others
76
that the Regional Court should have decided the guilt or otherwise
of Mr Masiya on the facts and without considering the
constitutional
issue of developing the definition of rape. That
might well have been the proper way to deal with the matter.
However, the
failure to do so is, in the circumstances of this
case, of no consequence. When the matter was referred to the High
Court in
terms of section 52 of the Act, that Court had to
determine whether the conviction was in accordance with justice
before considering
an appropriate sentence. The Court called for
further evidence and confirmed the conviction. Strictly speaking,
it is that
finding, among others, and not the finding by the
Regional Court, against which leave to appeal is sought.
The amici,
likewise, contended that apart from the gendered nature of the
origins of the definition, the elements of the crime
of rape
perpetuate gender stereotypes and discrimination because they are
suggestive of the fact that only males can commit the
crime and
only females can be raped. They argued that once it is recognised
that the primary motive for rape is not sexual lust
but the desire
to gain power or control over another person, with sex being the
violent means by which the power is exercised,
the rationale for
maintaining the gender distinction falls away. That might be so.
However, for the reasons given above, it
would not be appropriate
for this Court to engage with these questions. In this respect
there are three important considerations
that favour restraint on
the part of this Court. The first is that what is at issue is
extending the definition of crime, something
a Court should do only
in exceptional circumstances.
77
The second is that the development would entail statutory
amendments and necessitate law reform. The third is that,
historically,
rape has been and continues to be a crime of which
females are its systematic target. It is the most reprehensible
form of sexual
assault constituting as it does a humiliating,
degrading and brutal invasion of the dignity and the person of the
survivor.
78
It is not simply an act of sexual gratification, but one of
physical domination. It is an extreme and flagrant form of
manifesting
male supremacy over females.
The
Declaration on the Elimination of Violence against Women
79
specifically enjoins member States to pursue policies to eliminate
violence against women. Non-consensual anal penetration of
women
and young girls such as the complainant in this case constitutes a
form of violence against them equal in intensity and
impact to that
of non-consensual vaginal penetration. The object of the
criminalisation of this act is to protect the dignity,
sexual
autonomy and privacy of women and young girls as being generally
the most vulnerable group in line with the values enshrined
in the
Bill of Rights – a cornerstone of our democracy.
The extended
definition would protect the dignity of survivors, especially young
girls who may not be able to differentiate between
the different
types of penetration. The evidence of Dr Grabe, an expert witness
who testified in the High Court, that the complainant
referred to a
“hole” thinking that the anus is the only place she experiences
as a “hole”, clearly illustrates this point.
Women and girls
would be afforded increased protection by the extended definition.
One of the social contexts of rape is the
alarming high incidences
of HIV-infection. Anal penetration also results in the spread of
HIV.
The
consequences caused by non-consensual anal penetration might be
different to those caused by non-consensual penetration of
the
vagina but the trauma associated with the former is just as
humiliating, degrading and physically hurtful as that associated
with the latter. The inclusion of penetration of the anus of a
female by a penis in the definition will increase the extent
to
which the traditionally vulnerable and disadvantaged group will be
protected by and benefit from the law. Adopting this approach
would therefore harmonise the common law with the spirit, purport
and objects of the Bill of Rights.
One of the
important considerations arising out of the question whether to
develop the current definition relates to the appropriate
weight
that ought to be given to the 2003 Bill
80
which is a work in progress.
The 2003 Bill
The definition
of rape has been subject to law reform initiatives in many other
Commonwealth countries, such as the United Kingdom,
Canada and
Australia.
81
In South Africa the reform started in 1996 when the South African
Law Reform Commission (SALRC),
82
conducted an investigation into sexual offences relating to
children.
83
That report was followed by a request from the Minister that the
Commission investigate sexual offences more broadly. The first
draft of the 2003 Bill was tabled before Parliament in 2003.
84
This Bill was revised and tabled for the second time before
Parliament in October 2006 (revised Bill).
85
The definition of rape proposed by the SALRC replaces the concept
of sexual intercourse – penetration of a vagina by a penis
–
with that of sexual penetration which includes penetration of both
the vagina and the anus by the penis. Clause 2(1) of
the 2003 Bill
defines rape as follows:
“
A person who unlawfully and
intentionally commits an act which causes penetration to any extent
whatsoever by the genital organs
of that person into or beyond the
anus or genital organs of another person, or any act which causes
penetration to any extent whatsoever
by the genital organs of
another person into or beyond the anus or genital organs of the
person committing the act, is guilty of
the offence of rape.”
The approach in the
2003 Bill was not followed in the 2006 revised Bill. In the 2003
Bill two broad categories are proposed: rape
and sexual assault,
each with its own definition. In the revised Bill rape is defined
in clause 3 as follows: “[a]ny person
(“A”) who unlawfully and
intentionally commits an act of sexual penetration with a
complainant (“B”), without the consent
of B, is guilty of the
offence of rape.”
Chapters 1 and
2 of the revised Bill are of particular significance. Chapter 1
contains definitions of “sexual penetration”
and “sexual
violation” and Chapter 2 is headed “Sexual Offences”.
Chapter 2 deals in part 1 with rape and the competent
verdict for
compelled rape and in part 2 with sexual assault and compelled
sexual assault. The revised Bill adopts a gender-neutral
approach
to both offences.
Having had the
benefit of the drafts, the report by the SALRC and the public
comments such as those by the Women’s Legal Centre,
this Court
has noted the concerns expressed by the broader community in the
course of the law reform process and the developmental
perspective
of the Legislature regarding sexual offences. At the hearing a
concern was raised with counsel for the Minister
regarding the
delay in the promulgation of the 2003 Bill. Counsel was however
unable to explain to the Court the reason for
that delay.
The prevalence
of sexual violence in our society is deeply troubling. The
extension of the definition of rape to include anal
penetration
will not only yield advantages to the survivor but will also
express the abhorrence with which our society regards
these
pervasive but outrageous acts. This Court, while not unmindful of
the fact that the 2003 Bill is before Parliament, cannot
delay,
defer or refuse to deal with an extension of the definition when
the facts before it demand such an extension and when
it is clearly
in the public interest to do so. Any further delay in or
suspension of the extension of the current definition
will
constitute an injustice upon survivors of non-consensual anal
penetration such as the nine-year-old complainant in this
case.
That result cannot and should not be countenanced. The fact that
the 2003 Bill is before Parliament, as the Minister
contended,
should not thwart the extension of the current definition of rape
in these exceptional circumstances and when the
interests of
justice so demand.
I conclude
therefore that the extension of the common law definition of rape
to include non-consensual anal penetration of females
will be in
the interests of justice and will have, as its aim, the proper
realisation by the public of the principles, ideals
and values
underlying the Constitution. Accepting that the element of
unlawfulness is based essentially on the absence of consent,
86
the definition should therefore be extended to include intentional
penetration of the female anus by a penis without consent.
The question
of extending the definition so as to include acts of non-consensual
anal penetration of a penis into the anus of
a male person is left
open for future consideration where the facts might call for its
resolution. The question then remains
whether the extended
definition should apply to Mr Masiya.
Retrospective
application of the definition
Essentially,
the question is whether the conviction of rape is in accordance
with justice even though the definition of rape did
not include
non-consensual anal penetration at the time the crime was
committed. The High Court held that the principle of legality
has
no application in this case since no new crime is created. It held
that Mr Masiya knew he was acting unlawfully when he
assaulted the
complainant and that it has never been a requirement that an
accused person should know, at the time of the commission
of the
crime, whether it is a common-law or statutory crime or what its
legal definition is. Mr Masiya contended that the extended
definition should not apply to him as the application would
constitute a violation of his rights in terms of section 35(3)(l)
of the Constitution.
The ordinary
principle of common law is that when a rule is developed it applies
to all cases, not only those which arise after
the judgment in
which the law has been developed has been handed down. As
Kentridge AJ observed in
Du Plessis
:
87
“
In our Courts a judgment
which brings about a radical alteration in the common law as
previously understood proceeds upon the legal
fiction that the new
rule has not been made by the Court but merely ‘found’, as if it
had always been inherent in the law.
Nor do our Courts distinguish
between cases which have arisen before, and those which arise after,
the new rule has been announced.
For this reason it is sometimes
said that ‘Judge-made law’ is retrospective in its operation.
In all this our Courts have
followed the practice of the English
Courts. . . . [I]t may nonetheless be said that there is no rule of
positive law which would
forbid our Supreme Court from departing
from that practice.”
Indeed, as
Kentridge AJ pointed out, members of the Judicial Committee of the
House of Lords in the United Kingdom have accepted
that it may be
appropriate when the interests of justice require for a new rule of
law developed by the courts to operate prospectively
only.
88
R v
Governor of Brockhill Prison, ex parte Evans
89
was a matter involving the unlawful detention of a prisoner.
The governor had sentenced the prisoner on the basis of an
interpretation
of a statute which had originally been supported by
the courts but which had subsequently been held to be wrong. It
was clear
that the governor was blameless but the sentence raised
questions as to whether the new interpretation of the statute
should
apply prospectively only. The majority of the Law Lords
held that on the facts of that case it was not appropriate for the
interpretation
to apply prospectively only, but all also accepted
that the development of a rule might in appropriate circumstances
apply prospectively.
Lord Slynn of Hadley reasoned that—
“
. . . there may be decisions
in which it would be desirable, and in no way unjust, that the
effect of judicial rulings should be
prospective or limited to
certain claimants.”
90
Under our
constitutional order, of course, the remedy of prospective
overruling of a law that is inconsistent with the Constitution
is
permitted by the terms of section 172(1)(b) of the Constitution.
91
In this case, we are not dealing with the Court’s remedial
powers under section 172 as no order of constitutional invalidity
has been made. The question is whether when developing the common
law it is possible to do so prospectively only. In my view,
it is.
In this case, if the definition of rape were to be developed
retrospectively it would offend the constitutional principle
of
legality as I have demonstrated above. On the other hand, if we
were to accept that the principle of legality is a bar to
the
development of the common law, the courts could never develop the
common law of crimes at all. In my view, such a conclusion
would
undermine the principles of our Constitution which require the
courts to ensure that the common law is infused with the
spirit,
purport and objects of the Constitution.
92
The impasse can be avoided by accepting that in these
circumstances it is appropriate to develop the law prospectively
only.
I accept that it is only in rare cases that it will be
appropriate to develop the common law with prospective effect only,
as
the Law Lords suggested in the
Brockhill Prison
decision.
However, in my view this is one of those cases where fairness to
an accused requires that the development not apply
to him, but only
to those cases which arise after judgment in this matter has been
handed down.
One of the
central tenets underlying the common-law understanding of legality
is that of foreseeability – that the rules of
criminal law are
clear and precise so that an individual may easily behave in a
manner that avoids committing crimes.
93
In this regard, the amici referred to the decision of the European
Court of Human Rights in
SW v United Kingdom
94
where the Court held—
“
However clearly drafted a
legal provision may be, in any system of law, including criminal
law, there is an inevitable element of
judicial interpretation.
There will always be a need for elucidation of doubtful points and
for adaptation to changing circumstances
. . . provided that the
resultant development is consistent with the essence of the offence
and could reasonably be foreseen”.
The Court used the
element of foreseeability and Article 17 of the Convention,
95
which is intended to exclude the abuse of any specific rights
safeguarded by the Convention for any of the purposes set out in
the
Article, to find that the accused’s conviction of the rape of his
wife was not an infringement of the principle of legality
as
contained in Article 7(1) of the Convention.
96
The Court, in coming to their decision, emphasised the distinction
between reinterpretation and clarification of the common law
and the
creation of a new common-law offence. It appears that the Court
found the surprise element entailed by the retroactive
application
of the common law to be an unacceptable feature in this case.
The European
Commission of Human Rights, in
CR v United Kingdom
,
97
relied heavily on the submission that there was ambiguity as to
whether the marital immunity of rape was law and said—
“
In the present case, the
trial judge, when rejecting the applicant’s submission that
marital immunity applied, doubted the extent
to which it could ever
have been permissible under the common law for a husband to beat his
wife into having sexual intercourse
with him.
. . .
[T]he Commission considers that
by November 1989 there was significant doubt as to the validity of
the alleged marital immunity
for rape. As stated by the Court of
Appeal in the applicant’s case, lip service had been paid to the
alleged general rule while
the courts at the same time increased the
number of exceptions. That there was uncertainty as to the width of
the exceptions is
apparent from the Law Commission Working Paper
examining the question.
. . .
While there was no express
authority for the proposition that an implied agreement of
separation between husband or wife or unilateral
withdrawal of
consent by the wife would bring a case outside the marital immunity,
the Commission takes the view that in the present
case where the
applicant’s wife had withdrawn from cohabitation and there was
de
facto
separation with the expressed intention of both to seek a
divorce, there was a basis on which it could be anticipated that the

courts could hold that the notional consent of the wife was no
longer to be implied. . . . [T]he Commission considers that this
adaptation in the application of the offence of rape was reasonably
foreseeable to an applicant with appropriate legal advice.”
98
Section
35(3)(l)
99
of the Constitution confirms a long-standing principle of the
common law that provides that accused persons may not be convicted
of offences where the conduct for which they are charged did not
constitute an offence at the time it was committed. Although
at
first blush this provision might not seem to be implicated by
finding Mr Masiya guilty of rape in this case, because the act
he
committed did constitute an offence both under national law and
international law at the time he committed it, in my view,
the
jurisprudence of this Court would suggest otherwise.
In the first
case in which the Court addressed section 35(3)(l) and its
counterpart in respect of sentence, section 35(3)(n),
Veldman v
Director of Public Prosecutions,
100
the Court held that the principle of legality is central to the
rule of law under our Constitution. That case concerned the
question
of whether, where the sentencing jurisdiction of a court
had been increased after an accused had pleaded, the accused could
be
sentenced in terms of the increased jurisdiction. The Court
held it could not. The Court observed that
once
an accused has pleaded, the constitutionally enshrined principle of
legality requires that the sentencing jurisdiction of
a court
cannot be varied to the detriment of the accused, even where it was
clear that the increased sentence was a permissible
sentence for
the charge involved. The Court held that
—
“
[t]o retrospectively apply a
new law, such as section 92(1)(a), during the course of the trial,
and thereby to expose an accused
person to a more severe sentence,
undermines the rule of law and violates an accused person’s right
to a fair trial under section
35(3) of the Constitution.”
101
The strong
view of legality adopted in
Veldman
suggests that it would
be unfair to convict Mr Masiya of an offence in circumstances where
the conduct in question did not constitute
the offence at the time
of the commission. I conclude so despite the fact that his conduct
is a crime that evokes exceptionally
strong emotions from many
quarters of society. However, a development that is necessary to
clarify the law should not be to
the detriment of the accused
person concerned unless he was aware of the nature of the
criminality of his act. In this case,
it can hardly be said that
Mr Masiya was indeed aware, foresaw or ought reasonably to have
foreseen that his act might constitute
rape as the magistrate
appears to suggest.
102
The parameters of the trial were known to all parties before the
Court and the trial was prosecuted, pleaded and defended on
those
bases. It follows therefore that he cannot and should not bear
adverse consequences of the ambiguity created by the law
as at the
time of conviction.
The evidence
adduced at the trial established that Mr Masiya was guilty of
indecent assault. To convict him of rape would be
in violation of
his right as envisaged in section 35(3)(l) of the Constitution. I
conclude therefore that the developed definition
should not apply
to Mr Masiya.
The next
question that calls for consideration is whether the declaration of
invalidity referred to this Court in terms of section
172(2)(a)
103
should be confirmed.
Should the
declaration of invalidity be confirmed?
I have
indicated that the key to the developmental direction of the common
law definition of the crime of rape lies in the facts
of this case
– the alleged rape of a nine-year-old girl. In deciding whether
to develop the definition the Court was obliged
to confine itself
to the facts of the case. It follows therefore that the Court
cannot confirm the declaration of invalidity
to the extent that it
is based on conclusions relating to the gender-neutral nature of
the crime, an issue that does not arise
on the facts of this case.
The relevant
declaration of invalidity concerns statutory provisions in the Act
and the CPA as well as their respective Schedules
to the extent
that they are gender-specific. Having decided to extend the
definition of rape to include anal penetration of
both males and
females, the High Court in consequence made an order reading the
word “person” into the statutory provisions
wherever reference
is made to a specific gender.
I have
concluded that the definition of rape should be extended so as to
include anal penetration of a female, but that the question
of
non-consensual penetration of the penis into the anus of another
male should be left open. That being so, there is no need
for this
Court to address the declaration of invalidity of the statutory
provisions made by the High Court.
In conclusion,
I decline to confirm the declarations of invalidity in paragraph 3
of the order.
Merits
Mr Masiya has
challenged the decision of the Regional Court mostly on various
factual grounds and urged this Court to consider
the merits of the
conviction. In effect, Mr Masiya is seeking leave to appeal to
this Court on the merits of his conviction.
Even if it could be
said that in this regard his application raises a constitutional
issue, which is unlikely given this Court’s
judgment in
S v
Boesak
,
104
it is not in the interests of justice to grant him leave to appeal
directly to this Court on this issue. Mr Masiya has still
not been
sentenced and once he has been, he will have the right to seek
leave to appeal to the appropriate court in the ordinary
way. In
that sense, his application for leave to appeal on the merits is
premature. Accordingly, the application for leave
to appeal on the
merits of his conviction should be refused.
I must dispose
of one further matter before I deal with the relief. That relates
to the question whether the Magistrates’ Courts
have the power to
develop the common law.
Magistrates’
power to develop the common law in respect of crimes
It is
necessary to consider whether Magistrates’ Courts have the power
to develop the common law to bring it in line with the
Constitution. The High Court held that the Magistrates’ Court is
not explicitly excluded from pronouncing upon the constitutional
validity of crimes at common law. It is necessary to consider the
constitutional jurisdiction of these courts as this Court
has so
far not considered this question.
105
Section 8(3)
of the Constitution obliges a court when applying the provisions of
the Bill of Rights, if necessary, to develop
rules of the common
law to limit the rights, provided the limitation is in accordance
with section 36 of the Constitution. Section
39(2) places a
positive duty on every court to promote the spirit, purport and
objects of the Bill of Rights when developing
the common law.
106
In terms of section 166
107
of the Constitution courts in our judicial system include the
Magistrates’ Courts. However, section 173 explicitly empowers
only the Constitutional Court, the Supreme Court of Appeal and the
High Courts to develop the common law, taking into account
interests of justice. The Magistrates’ Courts are excluded.
The powers of
the Magistrates’ Courts are regulated by the Magistrates’ Court
Act 1944.
108
Section 110 of this Act prevents magistrates from pronouncing on
the validity of any law. It provides as follows:
“
(1) A court shall not be
competent to pronounce on the validity of
any law
or conduct
of the President.
(2) If in any proceedings
before a court it is alleged that—
(a) any law or any conduct of
the President is invalid on the ground of its inconsistency with a
provision of the Constitution;
or
(b) any law is invalid on any
ground other than its constitutionality,
the court
shall decide the
matter on the assumption that such law or conduct is valid
:
Provided that the party which alleges that a law or conduct of the
President is invalid, may adduce evidence regarding the invalidity
of the law or conduct in question.” (Emphasis added.)
The wording of
section 110 shows that the Magistrates’ Courts are under an
attenuated duty in relation to the development of
the common law.
They are however bound to give effect to the constitutional rights
as all other courts are bound to do in terms
of section 8(1) of the
Constitution. Magistrates presiding over criminal trials must, for
instance, ensure that the proceedings
are conducted in conformity
with the Constitution, particularly the fair-trial rights of the
accused.
Although
Magistrates’ Courts are at the heart of the application of the
common law on a daily basis and, in most instances,
courts of first
instance in criminal cases, there are legitimate reasons why they
are not included under section 173 and why
their powers are
attenuated. Magistrates are constrained in their ability to
develop crimes at common law by virtue of the doctrine
of
precedent. Their pronouncements on the validity of common-law
criminal principles would create a fragmented and possibly
incoherent legal order. An effective operation of the development
of common-law criminal principles depends on the maintenance
of a
unified and coherent legal system, a system maintained through the
recognised doctrine of
stare decisis
109
which is aimed at avoiding uncertainty and confusion, protecting
vested rights and legitimate expectations of individuals, and
upholding the dignity of the judicial system.
110
Moreover, and contrary to the view held by the magistrate in his
judgment,
111
there does not seem to be any constitutional or legislative mandate
for all cases in which a magistrate might see fit to develop
the
common law in line with the Constitution to be referred to higher
courts for confirmation. Such a referral might mitigate
the
disadvantageous factors discussed above. The suggestion by the
High Court that magistrates are empowered to vary the elements
of
crimes in the light of the Constitution was, to my mind, incorrect.
Relief
Section
172(1)(b)
112
of the Constitution confers a discretion on this Court to make any
order that is just and equitable. Having found that the common-law
definition of rape is not constitutionally invalid but merely falls
short of the spirit, purport and objects of the Bill of Rights,
the
declaration of invalidity of the definition of rape should
therefore be set aside and replaced with an appropriate order.
As
set out earlier, the development is limited to an inclusion of
non-consensual penetration of the male penis into the anus
of a
female person in the definition.
113
For the reasons set out above, I decline to confirm the
declaration of constitutional invalidity of the statutory
provisions
and the relevant Schedules of the Act and the CPA. The
declaration of invalidity should therefore be set aside. It
follows
that the orders in paragraphs 3 and 4 of the High Court
order
114
should also be set aside.
Having found
that the developed definition cannot apply to Mr Masiya, it cannot
therefore, on the facts before us, be said that
his conviction is
in accordance with justice. The conviction of rape should, on the
facts, be replaced with a conviction of
indecent assault. The
order of the High Court in paragraph 5 cannot therefore stand. The
appeal against the conviction of rape
should therefore be upheld.
Having
substituted the conviction of rape with that of indecent assault,
it is necessary to remit the matter to the Regional Court
to impose
appropriate punishment. It needs be said that the offence of
indecent assault is egregious. Mr Masiya assaulted a
nine-year old
child. The offence arouses public indignation. The Regional Court
is obliged, when considering an appropriate
punishment, to apply
its mind to the nature and gravity of the offence of which Mr
Masiya has been convicted and not merely look
at the legal
definition thereof. The fact that he has been convicted of
indecent assault does not automatically mean that the
sentence to
be imposed upon him should be more lenient than if he had been
convicted of rape.
The assistance
the Court has received from all counsel in this matter is
appreciated.
Order
In the result,
the following order is made:
1. The application for leave to appeal against the declarations of
invalidity and the order and judgment of the High Court confirming
the conviction of Mr Masiya of rape is granted.
2. The application
for leave to appeal against the conviction on the merits is
dismissed.
3. The order of the
High Court is set aside in its entirety.
4. The order of the
Regional Court referring the criminal proceedings to the High Court
for purposes of sentence in terms of
section 52(1)(b)(i)
of the
Criminal Law Amendment Act 105 of 1997
, is set aside.
5. The common-law
definition of rape is extended to include acts of non-consensual
penetration of a penis into the anus of a female.
6. The development
of the common law referred to in paragraph 5 above shall be
applicable only to conduct which takes place after
the date of
judgment in this matter.
7. The conviction
of Mr Masiya by the Regional Court of rape is set aside and replaced
with a conviction of indecent assault.
8. The case is remitted to the Regional Court for Mr Masiya to be
sentenced in the light of this judgment.
Moseneke DCJ,
Kondile AJ, Madala J, Mokgoro J, O’Regan J, Van der Westhuizen J,
van Heerden AJ and Yacoob J concur in the judgment
of Nkabinde J.
LANGA CJ:
Introduction
I
have had the opportunity of reading and reflecting on the judgment
of Nkabinde J. I agree with her that the definition falls
short of
the spirit, purport and objects enshrined in the Bill of Rights. I
associate myself particularly with her eloquent
exposition of the
patriarchal origin of the definition as well as for placing it in
the particular context of South Africa today.
I also agree with
her findings on legality and the role of the Magistrates’ Courts.
However, I believe that the development
she proposes must be taken
further so that it includes the anal rape of men.
Before
I address that point, I would like to add that, while there is
force to Nkabinde J’s view that the definition of rape
does not
directly violate the Constitution, I prefer not to express an
opinion on the matter, as, on the approach I take, it
is
unnecessary to do so.
What
is wrong with the common law
In
order to determine how the common law should be developed, it is
necessary to determine precisely what is wrong with the current
position. To my mind the problem is not about males and females;
it is about altering our understanding of why rape is prohibited.

There are two elements to this: first that rape is about dignity
and power and second, that anal rape is equivalent to vaginal
rape.
As expressed
in the judgment of Nkabinde J, the historical reason why rape was
criminalised was to protect the proprietary rights
of men in women.
However, over the years the courts have gradually focused less on
the proprietary interests and more on the
sexual nature of the
crime. Today rape is recognised as being less about sex and more
about the expression of power through
degradation and the
concurrent violation of the victim’s dignity, bodily integrity
and privacy. In the words of the International
Criminal Tribunal
for Rwanda
1
the
“essence of rape is not the particular
details of the body parts and objects involved, but rather the
aggression that is expressed
in a sexual manner under conditions of
coercion.”
2
Coupled with
this approach to rape is the recognition that anal penetration is
as severe an attack on a person’s dignity, bodily
integrity and
privacy as vaginal penetration. There is a line of case law
3
that equates “the gross humiliation and indignity”
4
of anal rape and vaginal rape. To use the words of Nkabinde J:
“
It can hardly be said that
non-consensual anal penetration of males is less degrading,
humiliating and traumatic and, to borrow
the phrase by Brownmiller,
‘a lesser violation of the personal private inner space, a lesser
injury to mind, spirit and sense
of self.’”
5
(Footnote omitted.)
Nkabinde
J’s decision to extend the definition of rape is based on
precisely these two imperatives. My only point of disagreement
is
that I find that the inescapable conclusion of these imperatives is
that the anal penetration of a male should be treated
in the same
manner as that of a female. In my view, to do otherwise fails to
give full effect to the constitutional values of
dignity, equality
and freedom: dignity through recognition of a violation; equality
through equal recognition of that violation;
and freedom as rape
negates not only dignity, but bodily autonomy. All these concerns
apply equally to men and women and necessitate
a definition that is
gender-neutral concerning victims.
Nkabinde
J gives three reasons why this Court should not extend the
definition to male survivors in this particular case. First,
courts should be wary to extend the reach of crimes. Second, women
remain the primary victims of rape which entails that rape
remains,
and must be identified as, an exercise of male supremacy. Third,
she holds that this Court should restrict itself to
the facts
before it, namely the anal penetration of a female. To tread
beyond this would exceed the judiciary’s limited constitutional
role. While there is much to be said for these concerns, I remain
unconvinced that in this case such restraint is warranted.
Extending
the reach of crimes
As was noted
in
S v Jordan
,
6
courts should not lightly criminalise conduct that was not
previously criminal. But, as is clear from the majority’s
extension
of the definition to female anal penetration, that
concern should not prevent courts from giving effect to the rights
and values
of the Constitution. The only difference between my
judgment and that of the majority is what those rights and values
demand.
In addition,
this is not truly an extension. Non-consensual anal penetration of
men already constitutes the criminal offence
of indecent assault.
There is no question, as there may have been in
Jordan
, of
criminalisation or decriminalisation; the act was already, and will
remain criminalised. This judgment simply re-categorises
it.
Women
as the primary target of rape
Women have
always been and remain the primary target of rape. That is not a
fact that this Court can or should ignore. Nor
can we deny that
male domination of women is an underlying cause of rape. But to my
mind that does not mean that men must be
excluded from the
definition. Firstly, as was noted above, this case goes to the
very reason for the existence of rape as a
crime. To the extent
that Nkabinde J concludes that the “object of the criminalisation
of [rape] is to protect the dignity,
sexual autonomy and privacy of
women and young girls as being generally the most vulnerable
group
”,
7
I part ways. To my mind the criminalisation of rape is about
protecting the “dignity, sexual autonomy and privacy” of all
people, irrespective of their sex or gender. When considering the
boundaries of the definition of rape, the ICTY held that “[t]he
essence of the whole corpus of . . . human rights law lies in the
protection of the human dignity of every person, whatever his
or
her gender.”
8
I agree.
Secondly,
there is no reason to believe that including men in the definition
will in any way decrease the protection afforded
to women. Indeed,
limiting the definition to female survivors might well entrench the
vulnerable position of women in society
by perpetuating the
stereotype that women are vulnerable, which in turn enforces the
dangerous cycle of abuse and degradation
that has historically led
to placing women in this intolerable position. The unintended
effect is to enforce the subordinate
social position of women which
informed the very patriarchy we are committed to uproot. The
social reality of women cannot be
ignored, but we should be wary
not to worsen it.
Thirdly, the
groups of men who are most often the survivors of rape, young boys,
prisoners and homosexuals, are, like women, also
vulnerable groups
in our society. Moreover, they, and most other male victims, are
raped precisely because of the gendered nature
of the crime. They
are dominated in the same manner and for the same reason that women
are dominated; because of a need for
male gender-supremacy. That
they lack a vagina does not make the crime of male rape any less
gender-based. The gendered basis
of rape, rightly identified by
Nkabinde J, requires that male victims are given equal rather than
lesser protection.
Finally, the
extension to male survivors is in line with both recent foreign
experience, as Nkabinde J notes,
9
and international criminal and humanitarian law. The International
Criminal Tribunal for Rwanda
10
(ICTR) and the International Criminal Tribunal for the Former
Yugoslavia
11
(ICTY) have both defined rape as including male anal penetration.
The Elements of Crimes of the International Criminal Court
(ICC)
12
also include male anal penetration under the definition of rape.
13
Indeed, these international bodies have extended the definition of
rape far beyond what is suggested in this judgment.
14
For all these
reasons I do not believe that limiting the extension of rape to the
anal penetration of women is in line with the
spirit, purport and
objects of the Bill of Rights.
Judicial
restrain and the separation of powers
There
can be no doubt that the separation of powers is a vital principle
of democracy and that undue judicial activism threatens
the
separation of powers. However, in this case the separation of
powers does not seem relevant for a number of reasons.
Firstly,
although the particular survivor in this case was a female, the
case is not about the sex of the victim but about gender
and how we
understand rape. Extending the definition to male survivors
therefore goes no further than is absolutely necessary
to cure the
defect I have found in the common law. Even if this may be a
slight departure from the facts of the case, it is
not unusual for
this Court to give orders, either when developing the common law
15
or determining the validity of statutes,
16
that go beyond the exact facts but are necessitated by the
underlying constitutional principles involved.
Secondly,
while it has only limited relevance, the original Criminal Law
(Sexual Offences) Amendment Bill
17
and the Revised Bill
18
currently before the Legislature are also neutral as to the victim
of the crime. In addition, nothing prevents the Legislature
from
enacting a new definition of rape subsequent to this extension.
19
Any infringement on the terrain of the Legislature is thus
minimal.
Finally, I
can see no reason why the general principle of our law that
constitutional remedies should give relief not only to
the
particular litigant but to all those similarly situated,
20
should not apply equally to the development of the common law. The
development a court selects must give relief to all those
who find
themselves in a similar position. In my mind, a boy who is raped
under the same circumstances as the survivor in this
case is in the
same position and is entitled to the same relief. That cannot
happen unless the definition is extended to include
male anal
penetration.
It
follows that I would confirm the decision of the High Court to
develop of the common-law definition of rape to include the
non-consensual sexual penetration of the male penis into the vagina
or anus of another person.
Sachs
J concurs in the judgment of Langa CJ.
For the
Applicant: Advocate PJJ De Jager and Advocate J Bauer instructed by
the Legal Aid Board.
For the First
Respondent: Advocate HM Meintjies and Advocate S Bakua instructed by
the National Director of Public Prosecutions.
For the Second Respondent: Advocate N Cassim SC, Advocate SM Lebala
and Advocate PT Bezuidenhout instructed by the State Attorney,
Pretoria.
For the Amici Curiae: Advocate K Pillay instructed by the Legal
Resources Centre.
1
Section
172(2)(a) provides:
“
The
Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity
of an Act
of Parliament, a provincial Act or any conduct of the President, but
an order of constitutional invalidity has no force
unless it is
confirmed by the Constitutional Court.”
See also section 167(5) of the
Constitution which provides:
“
The
Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President is
constitutional, and must confirm any order of invalidity made by the
Supreme Court of Appeal, a High Court, or a court of similar
status,
before that order has any force.”
2
In
terms of section 172(2)(d) of the Constitution. The section reads:
“
Any
person . . . with a sufficient interest may appeal, or apply,
directly to the Constitutional Court to confirm or vary an order
of
constitutional invalidity by a court in terms of this subsection.”
3
S
v Masiya
2006 (11) BCLR 1377
(T);
2006 (2) SACR 357
(T).
4
S
v Masiya
case no SHG 94/04 11 July 2005, unreported.
5
Act
51 of 1977.
6
Act
105 of 1997.
7
Section
261 of the CPA provides:
“
(1) If the evidence on a charge of rape or attempted
rape does not prove the offence of rape or, as the case may be,
attempted rape,
but—
. . .
(b) the offence of indecent assault;
. . .
the accused may be found guilty of the offence so
proved.”
8
Above
n at para 43.
9
Section
8(3) provides:
“
When applying a provision of the Bill of Rights to a
natural or juristic person in terms of subsection (2), a court—
(a) in order to give effect to a right in the Bill of
Rights, must apply, or if necessary develop, the common law to the
extent
that legislation does not give effect to that right; and
(b) may develop rules of common law to limit the right,
provided that the limitation is in accordance with section 36(1).”
10
Section
39(2) provides:
“
When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of
Rights.”
11
Above
n at para 17.
12
Bill
B50-2003.
13
Section
35(3)(n) provides:
“
Every accused person has a right to a fair trial,
which includes the right—
. . .
to the benefit of the least severe of the prescribed
punishments if the prescribed punishment for the offence has been
changed between
the time that the offence was committed and the time
of sentencing”.
14
Above
n at para 45.
15
Section
52 of the Act provides:
“
(1) If a regional court, following on—
(a) a plea of guilty; or
(b) a plea of not guilty,
has convicted an accused of an offence referred to in—
(i) Part I of Schedule 2; or
(ii) Part II, III or IV of Schedule 2 and the court is
of the opinion that the offence concerned merits punishment in
excess of
the jurisdiction of a regional court in terms of section
51 (2),
the court shall stop the proceedings and commit the
accused for sentence as contemplated in section 51 (1) or (2), as
the case may
be, by a High Court having jurisdiction.
(2) (a) Where an accused is committed under subsection
(1) (a) for sentence by a High Court, the record of the proceedings
in the
regional court shall upon proof thereof in the High Court be
received by the High Court and form part of the record of that
Court,
and the plea of guilty and any admission by the accused shall
stand unless the accused satisfies the Court that such plea or such
admission was incorrectly recorded.
(b) Unless the High Court in question—
(i) is satisfied that a plea of guilty or an admission
by the accused which is material to his or her guilt was incorrectly
recorded;
or
(ii) is not satisfied that the accused is guilty of the
offence of which he or she has been convicted and in respect of
which he
or she has been committed for sentence,
the Court shall make a formal finding of guilty and
sentence the accused as contemplated in section 51 (1) or (2), as
the case may
be.
(c) If the Court—
(i) is satisfied that a plea of guilty or any admission
by the accused which is material to his or her guilt was incorrectly
recorded;
or
(ii) is not satisfied that the accused is guilty of the
offence of which he or she has been convicted and in respect of
which he
or she has been committed for sentence or that he or she
has no valid defence to the charge,
the Court shall enter a plea of not guilty and proceed
with the trial as a summary trial in that Court: Provided that any
admission
by the accused the recording of which is not disputed by
the accused, shall stand as proof of the fact thus admitted.
(d) The provisions of section 112 (3) of the Criminal
Procedure Act, 1977 (Act No. 51 of 1977), shall apply with reference
to the
proceedings under this subsection.
(3) (a) Where an accused is committed under subsection
(1) (b) for sentence by a High Court, the record of the proceedings
in the
regional court shall upon proof thereof in the High Court be
received by the High Court and form part of the record of that
Court.
(b) The High Court shall, after considering the record
of the proceedings in the regional court, sentence the accused as
contemplated
in section 51 (1) or (2), as the case may be, and the
judgment of the regional court shall stand for this purpose and be
sufficient
for the High Court to pass such sentence: Provided that
if the judge is of the opinion that the proceedings are not in
accordance
with justice or doubt exists whether the proceedings are
in accordance with justice, he or she shall, without sentencing the
accused,
obtain from the regional magistrate who presided at the
trial a statement setting forth his or her reasons for convicting
the accused.
. . . .
(d) The Court in question may at any sitting thereof
hear any evidence and for that purpose summon any person to appear
to give
evidence or to produce any document or other article.
(e) Such Court, whether or not it has heard evidence
and after it has obtained and considered a statement referred to in
paragraph
(b), may—
(i) confirm the conviction and thereupon impose a
sentence as contemplated in section 51 (1) or (2), as the case may
be;
(ii) alter the conviction to a conviction of another
offence referred to in Schedule 2 and thereupon impose a sentence as
contemplated
in section 51 (1) or (2), as the case may be;
(iii) alter the conviction to a conviction of an
offence other than an offence referred to in Schedule 2 and
thereupon impose the
sentence the Court may deem fit;
(iv) set aside the conviction;
(v) remit the case to the regional court with
instruction to deal with any matter in such manner as the High Court
may deem fit;
or
(vi) make any such order in regard to any matter or
thing connected with such person or the proceedings in regard to
such person
as the High Court deems likely to promote the ends of
justice.”
16
Part
I of Schedule 2 states:
“Rape—
. . .
(b) where the victim—
(i) is a girl under the age of 16 years;
(ii) is a physically disabled woman who, due to her
physical disability, is rendered particularly vulnerable; or
(iii) is a mentally ill woman as contemplated in
section 1 of the Mental Health Act, 1973 (Act No. 18 of 1973)”
.
. . .”
17
Above
n 3 at para 55.
18
Section
8(1) provides that “[t]he Bill of Rights applies to all law, and
binds the legislature, the executive, the judiciary and
all organs
of state.”
19
Above
n .
20
Below
n .
21
Section
170 provides:
“
Magistrates’
Courts and all other courts may decide any matter determined by an
Act of Parliament, but a court of a status lower
than a High Court
may not enquire into or rule on the constitutionality of any
legislation or any conduct of the President.”
22
Section
172(1) provides:
“
When deciding a constitutional matter within its
power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority to
correct the defect.”
23
Above
n .
24
Section
173 provides:
“
The
Constitutional Court, Supreme Court of Appeal and High Court have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.”
25
Above
n at para 60.
26
Id
at para 71.
27
Id
at para 73.
28
Above
n .
29
See
Amod
v Multilateral Motor Vehicle Accidents Fund
[1998] ZACC 11
;
1998 (4) SA 753
(CC);
1998 (10) BCLR 1207
(CC) at para 33. See also
Fourie
and Another v Minister of Home Affairs and Another
[2003] ZACC 11
;
2003
(5) SA 301
(CC);
2003 (10) BCLR 1092
(CC) at para 12.
30
As
the ultimate competent authority in matters of common-law
development and precedent where constitutional matters are not
raised.
31
Section
10 provides
that “[e]veryone has inherent dignity and the right to have their
dignity respected and protected.”
32
Section
9(1) provides that “[e]veryone is equal before the law and has the
right to equal protection and benefit of the law.”
33
Section
12 provides:
“
(1) Everyone has the right to freedom and security
of person, which includes the right—
(a) not to be deprived of freedom arbitrarily or
without just cause;
. . .
(c) to be free from all forms of violence from either
the public or private sources;
. . ..
(2) Everyone has the right to bodily and psychological
integrity, which includes the right—
. . .
(b) to
security in and control over their body”.
34
Section
28(1)(d) provides:
“
Every child has the right—
. . .
to
be protected from . . . abuse or degradation.”
35
Section
35(3) provides:
“
Every accused person has a right to a fair trial,
which includes the right—
. . .
(l) 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;
. . .
(n) to the benefit of the least severe of the
prescribed punishments if the prescribed punishment for the offence
has been changed
between the time that the offence was committed and
the time of sentencing”.
36
National
Police Service Union and Others v Minister of Safety and Security
and Others
[2000] ZACC 15
;
2000 (4) SA 1110
(CC);
2001 (8) BCLR 775
(CC) at para 5;
Ingledew
v Financial Services Board: In re Financial Services Board v Van der
Merwe and Another
[2003] ZACC 8
;
2003 (4) SA 584
(CC);
2003 (8) BCLR 825
(CC) at para 31;
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para 12.
37
See
Simpson
Cassell’s New Compact Latin-English English-Latin Dictionary
(Cassel & Company Ltd, London 1963) 189-190.
38
S
v Ncanywa
1992 (2) SA (Ck) at 185E-G citing De Wet and Swanepoel
Strafreg
3 ed (Butterworths, Durban 1975) 242 and Voet
Commentarius
ad Pandectas
48.6.4, Van der Keessel
Praelectiones
ad Jus Criminale
(1809) 46.6.7 (Beinart and Van Warmelo’s translation (1972) 883).
Voet
and Van der Keessel treated rape as a species of public violence
(
vis
publicae
).
39
See
Hiemstra and Conin
Trilingual
Legal Dictionary
2 ed (Juta, Cape Town 1986).
40
Kaganas
and Murray “Rape in Marriage – Conjugal Rights or Criminal
Wrong?”
1983
Acta
Juridica
125
at 126.
41
Id.
42
In
terms of South African law, violence is not an element of the crime
of rape.
43
Ncanywa
above n at 185G-I.
Stuprum
violentum,
translated
as meaning “rape” by Hiemstra and Conin above n ,
was
distinguished as a form of seduction against the will of a woman.
It was regarded as closely related to violent
raptus
and punished as such. It would seem that the Roman-Dutch
authorities treated the
actus
reus
of
rape as a form of
stuprum
being one of a whole group of offences based on illicit sexual
intercourse.
Stuprum
was regarded as seduction or coition with women of certain classes
but married women and prostitutes were excluded. See also Burchell
and Milton
Principles of Criminal Law
3 ed (Juta, Cape Town 2000) 702.
44
Burchell
and Milton above n at 703.
45
The
Constitution recognises customary law and enjoins the courts, in
section 211(3) to “. . . apply customary law when that law
is
applicable, subject to the Constitution and any legislation that
specifically deals with customary law.”
46
Mönnig
The
Pedi
(JL van Schaik Limited, Pretoria 1967) 320 suggests that a woman
would have an action for rape if assisted by her husband. Even
though one cannot assume that all the systems of indigenous law in
South Africa are uniform, seduction, according to Seymour, is
the
primary offence dealing with sexual violence. Seymour
Native
Law in South Africa
(Juta and Co. Limited, Cape Town and Johannesburg 1960) 228.
47
Myburgh
and Prinsloo
Indigenous
Public Law in KwaNdebele
(JL van Schaik (Pty) Ltd, Pretoria 1985) 101–102.
48
Milton
“Re-defining the crime of rape: The Law Commission’s proposals”
(1999) 12
SACJ
364
at 366.
49
See
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 35. Some
protagonists of women’s rights however argue that the focus on the
woman only as the victim of rape still
perpetuate patriarchal
interests in controlling a woman’s sexuality. It is not necessary
to consider that argument for the purpose
of the present case.
50
Above
n .
51
Id
at 186A-B. See also
R
v K
1958
(3) SA 420
(A) at 423B-C and the remarks by Wessels CJ regarding the
element of consent in
R
v Mosago and Another
1934 AD 32
at 34.
52
2006
(7) BCLR 790
(W) at 828E.
53
Id
at 828F-G. The Court stated that
“
[t]he
element of intention is vital because rape can only be committed
intentionally. A principle of our criminal justice system
is
expressed in the maxim
actus non facit reum nisi mens sit rea
–
the act is not wrongful unless the mind is guilty.”
54
Above
n at 699 and 705.
55
Snyman
Criminal
Law
4
ed (Butterworths, Durban 2002) 445.
56
Id
at 446. See also Burchell and Milton above n at 706.
57
National
Coalition for Gay and Lesbian Equality v The Minister of Justice and
Others
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC).
58
Above
n .
59
Above
n .
60
Above
n .
61
Section
5
of the
Prevention of Family Violence Act 133 of 1993
.
62
Section
1
of the Law of Evidence and the
Criminal Procedure Act Amendment
Act 103 of 1987.
63
Abolition
of the cautionary rule. See
S
v Jackson
1998
(1) SACR 470
(SCA) at para 476E-F.
64
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 81.
65
Albertyn
et al “Women’s Freedom and Security of the Person” in Albertyn
and Bonthuys
Gender,
Justice and Equality
(Juta, Cape Town 1996) Chapter 9 at 26 quoting Brownmiller
Against
Our Will: Men, Women and Rape
(1975)
at 378.
66
Du
Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para 61.
67
1996
(1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 183.
68
Cases
in which this Court has decided on the validity of legislative
provisions and therefore been at liberty to provide relief
beyond
the facts of the case include:
Mabaso
v Law Society, Northern Provinces and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) and
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997
(1) SA 124
(CC);
1996 (12) BCLR 1559
(CC).
69
Above
n .
70
Id
at para 36.
71
(1992)
8 CRR (2d) 173;
[1991] 3 SCR 654
, as cited by Kentridge AJ in
Du
Plessis
above n .
72
Carmichele
above
n at para 36 citing
Du
Plessis
above
n at para 61.
73
Id.
74
On
the development of the common law see
S
v Thebus and Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC);
2003 (10) BCLR 1100
(CC) at paras 28-31.
75
Above
n at para 71.
76
[1995] ZACC 4
;
1995
(3) SA 867
(CC); 1995 (7) BCLR (CC) 793; 1995 (2) SACR (CC) 277 at
para 59 in which Kentridge AJ stated that “I would lay it down as
a general
principle that where it is possible to decide any case,
civil or criminal, without reaching a constitutional issue, that is
the
course which should be followed.”
77
See
in this regard
S
v Jordan and Others (Sex Workers Education and Advocacy Task Force
and Others as
Amici
Curiae
)
[2002] ZACC 22
;
2002
(6) SA 642
(CC);
2002 (11) BCLR 1117
(CC) at para 45. The remarks
are echoed by Snyman above n at 48: “[a] court is not free to
extend the definition or field of
application of a common-law crime
by means of a wide interpretation of the requirements for the
crime.”
78
See
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(A) at 344I-345B. This Court has said in
S
v Baloyi (Minister of Justice and Another Intervening)
[1999] ZACC 19
;
2000
(2) SA 425
(CC);
2000 (1) BCLR 86
(CC) at para 12 that rape, like
domestic violence, is “systemic, pervasive and overwhelmingly
gender-specific . . . [and] reflects
and reinforces patriarchal
domination, and does so in a particularly brutal form.”.
79
United
Nations General Assembly Resolution 48/104 of 1993, 20 December
1993.
80
Above
n .
81
For
instance, in the United Kingdom, the Criminal Justice and Public
Order Act 1994 acknowledged that a man could be a victim of
rape and
the definition of the
actus
reus
was amended to cover vaginal or anal intercourse against a woman or
another man without his or her consent. In 2003, a complete
overhaul of the rape legislation resulted in the Sexual Offences Act
2003 which defines the
actus
reus
of
rape as penile penetration of the vagina, anus, or mouth of another
person without his or her consent.
In Canada, historically rape was defined in the
Criminal Code of Canada as when a male has sexual intercourse with a
female who
is not his wife without her consent, or when her consent
is exhorted by threat or fear of bodily harm, by impersonating her
husband
or by false and fraudulent representations as to the nature
of the act. In 1983, the offences of rape and indecent assault were
conflated and redefined as sexual assaults. The offences are
gender-neutral and a consent provision applies to all sexual and
non-sexual types of assaults. “Sexual assault” was defined by
the Supreme Court of Canada as “an assault . . . which is
committed in circumstances of a sexual nature, such that the sexual
integrity of the victim is violated.”
R v Chase
[1987] 2
SCR 293
at para 11. The test to be applied in determining whether
the impugned conduct has the requisite sexual natures is an
objective
one — viewed in the light of all circumstances, is the
sexual or carnal context of the assault visible to a reasonable
observer?
In Australia, much like in the United Kingdom, the
definition of rape has evolved significantly over the past couple of
decades.
Oral, vaginal and anal intercourses are all deemed by the
Crimes Act to be sexual intercourse.
82
Formerly
referred to as the South African Law Commission.
83
South
African Law Commission
Project
108: Sexual Offences Against Children
Issue Paper 10 (1997);
Project
107: Sexual Offences: The Substantive Law
Discussion Paper 85 (1999);
Project
107: Process and Procedure
Discussion
Paper 102 (2002),
Project
107: Sexual Offences Report
(2002).
84
Above
n .
85
Dated
10 October 2006.
86
Ncanywa
above n at 186A.
87
Above
n at para 65.
88
Id,
citing
Jones
v Secretary of State for Social Services; Hudson v Secretary of
State for Social Services
[1972] AC 944
(HL) at 1015 (per Lord Diplock) and 1026 (per Lord
Simon). See also the later decision of
R
v Governor of Brockhill Prison, Ex parte Evans (No 2)
[2001]
2 AC 19
(HL(E)).
89
Id.
90
Id
at 26. See also Lord Steyn at 29, Lord Hope at 35-37 and Lord
Hobhouse at 47-48. See also
Royal
Bank of Scotland plc v Etridge (No 2)
[2001] UKHL 44
;
[2002] 2 AC 773
(HL(E)).
91
Above
n .
92
Section
39(2) of the Constitution.
93
Snyman
above n at 41.
94
SW
v United Kingdom; CR v United Kingdom
[1995] ECHR 52
;
(1995) 21 EHRR 363
at para 36/34 at 399. The applicant in
SW
,
a United Kingdom citizen, was charged and convicted with the offence
of raping his wife. His conviction was confirmed by the
House of
Lords. He subsequently referred a complaint to the European
Commission of Human Rights, where he complained that in breach
of
Article 7(1) of the European Convention for the Protection of Human
Rights and Fundamental Freedoms he was convicted in respect
of
conduct which at the relevant time did not constitute an offence,
breaching the principle of legality. The case was ultimately
decided upon by the European Court of Human Rights in favour of the
United Kingdom, unanimously holding that there had been no
violation
of Article 7(1) of the Convention.
The factual circumstances in
CR
concerned a
case of marital rape, where the wife had left the husband and had
returned to her parents’ home. The husband forced
his way into
the home, assaulted and attempted to have sexual intercourse with
her against her will. He was charged with attempted
rape and
assault occasioning actual bodily harm. He pleaded guilty and
subsequently unsuccessfully appealed to the House of Lords.
The
applicant then referred a complaint to the European Commission of
Human Rights. The European Court of Human Rights decided
this case
similarly to
SW
.
95
Article
17 states:
“
Nothing
in this Convention may be interpreted as implying for any State,
group or person any right to engage in any activity or
perform any
act aimed at the destruction of any of the rights and freedoms set
forth herein or at their limitation to a greater
extent than is
provided for in the Convention.”
96
Article
7(1) states:
“
No
one shall be held guilty of any criminal offence on account of any
act or omission which did not constitute a criminal offence
under
national or international law at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that
was
applicable at the time the criminal offence was committed.”
97
Above
n .
98
Id
at paras 58-60.
99
Above
n .
100
2006
(2) SACR 319
(CC).
101
Id
at para 37.
102
See
above para 10.
103
Above
n .
104
Above
n at para 23.
105
See
Carmichele
above n .
106
Id
at
para 34.
107
Section
166 states that:
“
The courts are—
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any high court of appeal
that may be established by an Act of Parliament to hear appeals from
High
Courts;
(d) the Magistrates’ Courts; and
(e) any other court established or recognised in terms
of an Act of Parliament, including any court of a status similar to
either
the High Courts or theMagistrates’ Courts.”
108
Act
32 of 1944 as amended by the
Magistrates’ Courts Second Amendment
Act 80 of 1997
.
109
An
abbreviation of a Latin maxim,
stare
decisis et non quieta movere,
which
means that one stands by decisions and does not disturb settled
points.
110
See
Ex
Parte
Minister of Safety and Security and Others: In re: S v Walters and
Another
[2002] ZACC 6
;
2002 (4) SA 613
(CC);
2002 (7) BCLR 663
(CC).
111
Above
n 4.
112
Above
n .
113
Above
para 45.
114
Above
para .
1
The
Prosecutor v Alfred Musema
Case
No ICTR-96-13-A (27 January 2000).
2
Id
at para 226. See also
The
Prosecutor v Jean-Paul Akayesu
Case
No ICTR-96-4-T (2 September 1998); (1998) 37 ILM 1401 at para 597.
3
Director
of Public Prosecutions v Tshabalala
Case No A1955/04 (TPD) 7 February 2005, unreported as referred to
in
S
v Masiya
2006
(11) BCLR 1377
(T);
2006 (2) SACR 357
(T) at para 67;
S
v Pieters
1987 (3) SA 717
(A) at 721F-H;
S v M (2)
1990
(1) SACR 456
(N) at 457-458.
4
M
above n at 458b.
5
Nkabinde
J above at para 30.
6
S
v Jordan and Others (Sex Worker Education and Advocacy Task Force
and Others as
Amici Curiae
)
[2002] ZACC 22
;
2002 (6) SA 642
(CC);
2002 (11) BCLR 1117
(CC) at para 45.
7
At
para 37. (Emphasis added.)
8
Prosecutor
v Anto Furundzija
Case No IT-95-17/1-T (10 December 1998); (1999) 38 ILM 317 at para
183.
9
Nkabinde
J above at n 71.
10
Akayesu
above n at para 598;
Musema
above
n at paras 225-226;
The
Prosecutor v Laurent Semanza
Case
No ICTR-97-20-T (15 May 2003) at paras 344-345.
11
Prosecutor
v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic
Case Nos IT-96-23 and IT-96-23/1-A (12 June 2002) at paras 127-128.
12
Adopted
by the Assembly of States Parties, 1
st
session New York (3-10 September 2002) ICC-ASP/1/3. The Elements of
Crimes were adopted by the state parties to the ICC Statute
and will
assist the ICC in interpreting the crimes created by statute.
13
The
elements both of the crime against humanity of rape (art 7(1)(g))
and the war crime of rape in both international (art 8(2)(b)(xxii))
and non-international (art 8(2)(e)(vi)) armed conflicts include:
“
The
perpetrator invaded
the body of a person by
conduct resulting in penetration, however slight, of any part of the
body of the victim or of the perpetrator
with a sexual organ, or of
the anal or genital opening of the victim with any object or any
other part of the body.” (Footnote
omitted.)
14
The
ICTY, ICTR and ICC include oral penetration by a sexual organ and
vaginal or anal penetration by any object in their understandings
of
rape. See nn , and above.
15
See
Minister
of Home Affairs and Another v Fourie and Another (Doctors for Life
International and Others as Amici Curiae); Lesbian and
Gay Equality
Project and Others v Minister of Home Affairs and Another
[2005] ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR 355
(CC) (Court developed the
common law to allow for both male and female homosexuals to marry
although the only parties before it
were female).
16
See,
for example,
S
v Shinga; S v O’Connell and Others
CCT
56/06 and CCT 80/06, as yet unreported judgment of 8 March 2007 (the
Court invalidated provisions relating to the provision
of the record
in criminal appeals clearly not at issue on the facts of the case);
Mabaso
v Law Society, Northern Provinces and Others
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) (although applicant was
from Bophuthatswana, the Court read in words to cure discrimination
against attorneys from all former
homelands);
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997
(1) SA 124
(CC);
1996 (12) BCLR 1559
(CC) (the Court invalidated the
whole of a provision requiring that summons be issued within six
months of the cause of action
arising and that the Defence Force be
given one month’s notice even though the applicant only failed to
comply with the second
requirement).
17
B
50-2003
s 2(1).
18
Dated
10 October 2006
s 3
read with the definition of “sexual
penetration” in
s 1.
19
See,
for example,
J
and Another v Director General, Department of Home Affairs, and
Others
[2003] ZACC 3
;
2003
(5) SA 621
(CC);
2003 (5) BCLR 463
(CC) at para 26.
20
See,
for example,
Van
der Merwe v Road Accident Fund and Another (Women's Legal Centre
Trust as
Amicus
Curiae
)
[2006] ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC) at para 77;
Minister
of Home Affairs v National Institute for Crime Prevention and the
Reintegration of Offenders (NICRO) and Others
[2004] ZACC 10
;
2005 (3) SA 280
(CC);
2004 (5) BCLR 445
(CC) at para 74;
S
v Bhulwana, S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32.