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[2012] ZAWCHC 42
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Director of Public Prosecutions, Western Cape v Prins (A134/08) [2012] ZAWCHC 42; 2012 (2) SACR 67 (WCC); [2012] 3 All SA 138 (WCC) (11 May 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE NUMBER: A134/08
In the matter between:
DIRECTOR
OF PUBLIC PROSECUTIONS,
WESTERN
CAPE
…......................................................................................
Appellant
and
ARNOLD
PRINS
…....................................................................................
Respondent
JUDGMENT DELIVERED ON
11 MAY 2012
BLIGNAULT
J
:
Introduction
[1] Mr Arnold Prins
("respondent") was indicted in the regional court at
Riversdale on a charge of contravening the provisions
of section 5(1)
of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 ("the Sexual Offences Act")
on 19 September
2009 by touching the breasts and private parts of the complainant
without her consent.
[2] Section 5(1) of the
Sexual Offences Act reads as follows:
"5 Sexual
assault
(1) A person ('A') who
unlawfully and intentionally sexually violates a complainant ('B'),
without the consent of B, is guilty of
the offence of sexual
assault."
[3] Prior to the
commencement of the trial respondent objected to the charge sheet in
terms of
section 85
of the
Criminal Procedure Act 51 of 1977
. It was
contended on his behalf that the charge does not disclose an offence
as section 5(1) of the Sexual Offences Act does not
contain any
penalty for the alleged offence.
[4] The regional
magistrate upheld respondent's objection and quashed the charge.
[5] The Director of
Public Prosecutions, Western Cape ("appellant") thereupon
appealed to this court against the decision
of the regional
magistrate. A full court was constituted to hear the appeal.
[6] Mr L J Badenhorst
appeared on behalf of appellant at the hearing of the appeal. Mr P A
Botha, assisted by Ms Y Isaacs, appeared
on behalf of respondent. The
court is indebted to counsel for their helpful submissions.
[7]
Mr Botha's principal argument was based on the legality principle in
criminal law expressed in the maxim
nulla
poena sine lege
(no
punishment without a law). The principle is to the effect that an
accused can only be punished in accordance with a fixed predetermined
law. Before discussing this principle it is, however, necessary to
look at certain relevant provisions of the Sexual Offences Act.
The Sexual Offences
Act
[8)
The Sexual Offences Act came into operation on 16 December 2007. In
terms of section 68(1) thereof it repealed,
inter
alia, "the common law relating to the crimes of rape, indecent
assault, incest, bestiality and violation of a corpse,
insofar as it
relates to the commission of a sexual act with a corpse".
[9] The Sexual Offences
Act contains a preamble and an objects clause. The thrust of the
objects clause is contained in the following
parts of section 2:
"2 Objects
The objects of this
Act are to afford complainants of sexual offences the maximum and
least traumatising protection that the law
can provide, to introduce
measures which seek to enable the relevant organs of state to give
full effect to the provisions of this
Act and to combat and,
ultimately, eradicate the relatively high incidence of sexual
offences committed in the Republic by:
(a) Enacting all
matters relating to sexual offences in a single statute
(b) criminalising all
forms of sexual abuse or exploitation;
(c) repealing certain
common law sexual offences and replacing them with new and, in some
instances, expanded or extended statutory
sexual offences,
irrespective of gender;..."
[10]
Chapter 2 of the Sexual Offences Act is headed
"Sexual
Offences".
It
comprises sixteen (17) such offences, including the offence described
in section 5(1). Typical examples of these offences are
"rape"
as
described in section 3,
"compelled
rape" as described
in
section 4,
"sexual
assault"
as
described in section 5,
"compelled
sexual assault".
as
described in section 6 and
"compelled
self-sexual assault"
as
described in section 7. I quote these sections hereunder:
"3
Rape
Any 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.
4 Compelled rape
Any person ('A') who
unlawfully and intentionally compels a third person ('C'), without
the consent of C, to commit an act of sexual
penetration with a
complainant (B), without the consent of B, is guilty of the offence
of compelled rape.
Sexual assault,
compelled sexual assault and compelled self-sexual assault (ss 5-7)
5
Sexual
assault
(1) A person ('A') who
unlawfully and intentionally sexually violates a complainant ('B'),
without the consent of B, is guilty of
the offence of sexual assault.
(2) A person ('A') who
unlawfully and intentionally inspires the belief in a complainant
('B') that B will be sexually violated,
is guilty of the offence of
sexual assault.
6
Compelled
sexual assault
A person ('A') who
unlawfully and intentionally compels a third person ('C'), without
the consent of C, to commit an act of sexual
violation with a
complainant ('B'), without the consent of B, is guilty of the offence
of compelled sexual assault.
7
Compelled
self-sexual assault
A person ('A') who
unlawfully and intentionally compels a complainant ('B'), without the
consent of B, to-
(a) engage in-
(i)
masturbation;
(ii)
any
form of arousal or stimulation of a sexual nature
of the female
breasts; or
(iii)
sexually
suggestive or lewd acts,
with B himself or herself;
engage in any act
which has or may have the effect of sexually arousing or sexually
degrading B; or
cause B to penetrate
in any manner whatsoever his or her own genital organs or anus,
is guilty of the
offence of compelled self-sexual assault.
[11]
Chapter 3 of the Sexual Offences Act is headed
"Sexual
Offences against Children".
It
comprises eight (8) such offences, for example
"Consensual
sexual acts with certain children"
and
"Sexual
exploitation and sexual grooming of children".
Chapter
4 of the Sexual Offences Act is headed
"Sexual
Offences against persons who are mentally disabled".
It
comprises four (4) such offences, for example
"Sexual
exploitation and sexual grooming of persons who are mentally
disabled".
[12] A remarkable feature
of the 29 sexual offences described in chapters 2, 3 and 4 of the
Sexual Offences Act is that not one
of them contains any penalty
clause. The six examples of these offences, quoted above, are in this
regard typical of all of them.
Only the offence of rape, described in
section 3 of the Sexual Offences Act, can be distinguished from the
other offences as penalties
for it is dealt with in
section 51(2)
of
the
Criminal Law Amendment Act 105 of 1997
.
[13] By contrast there
are numerous provisions in the Sexual Offences Act that create
offences which do contain typical penalty
clauses. Section 38, for
example, reads as follows:
"38 Offences
and penalties
(1)
(a)
Any person who, with malicious intent lays a charge with the South
African Police Service in respect of an alleged sexual offence
and
makes an application in terms of section 30 (1), with the intention
of ascertaining the HIV status of any person, is guilty
of an offence
and is liable on conviction to a fine or to imprisonment for a period
not exceeding three years.
(b) Any person who
with malicious intent or who in a grossly negligent manner discloses
the results of any HIV tests in contravention
of section 37, is
guilty of an offence and is liable to a fine or to imprisonment for a
period not exceeding three years.
(2)
An
alleged offender who, in any manner whatsoever, fails
or refuses
to comply with or avoids compliance with, or
deliberately
frustrates any attempt to serve on himself or
herself, an order of
court that he or she be tested for HIV, is
guilty of an offence
and is liable on conviction to a fine or to
imprisonment for a
period not exceeding three years."
[14] Sections 45, 46, 47
and 48 of the Sexual Offences Act impose certain obligations upon
employers and employees with respect
to the National Register for Sex
Offenders established in terms of the provisions of the Sexual
Offences Act. Sub-section (3) in
each case contains a similar penalty
clause save that the period of imprisonment is seven years. Sections
48 (dealing with licence
applications) and 48 which create offences
in respect of fostering, kinship care-giving, temporary safe
care-giving, adoption of
children or curatorship also contain typical
penalty clauses. Sections 50, 52 and 54 likewise contain penalty
clauses.
[15] Section 55 of the
Sexual Offences Act can be described as a hybrid provision. It reads
as follows:
"55 Attempt,
conspiracy, incitement or inducing another person to commit sexual
offence
Any person who-
(a) attempts;
(b) conspires with any
other person; or
(c) aids, abets,
induces, incites, instigates, instructs, commands, counsels or
procures another person,
to commit a sexual
offence in terms of this Act, is guilty of an offence and may be
liable on conviction to the punishment to which
a person convicted of
actually committing that offence would be liable."
The
nulla
poena sine lege
principle
[16]
The
nulla
poena sine lege
principle,
with its concomitant,
nullum
crimen sine lege
(no
crime without a law), constitute essential elements of the doctrine
of legality in criminal law. The
nulla
poena sine lege
principle
has been described in Burchell
Principles
of Criminal Law
3
rd
ed
(2005) 99 as follows:
"Punishment is an
integral part of the concept of a crime. Without the liability to
punishment there would be no distinction
between penal and non-penal
laws. Thus it follows that 'to render any act criminal in our law,
there must be some punishment affixed
to the commission of the act
and where no law exists affixing such punishment there is no crime in
law."
[17]
In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) Chaskalson P, Goldstone J and O'Regan J (in a joint
judgment) described the nature and effect of the principle of
legality
in South African law. See the following passages in their
judgment:
"[56] These
provisions imply that a local government may only act within the
powers lawfully conferred upon it. There is nothing
startling in this
proposition - it is a fundamental principle of the rule of law,
recognised widely, that the exercise of public
power is only
legitimate where lawful. The rule of law - to the extent at least
that it expresses this principle of legality -
is generally
understood to be a fundamental principle of constitutional law. This
has been recognised in other jurisdictions.
…
.....................
[58]
It seems central to the conception of our constitutional order that
the Legislature and Executive in every sphere are constrained
by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law. At least in this
sense, then,
the principle of legality is implied within the terms of the interim
Constitution. Whether the principle of the rule
of law has greater
content than the principle of legality is not necessary for us to
decide here. We need merely hold that fundamental
to the interim
Constitution is a principle of legality."
[18]
In support of these statements regarding legality, the justices
referred,
inter
alia,
to
the following passage in Dicey
Introduction
to the Study of the Law of the Constitution
10th
ed 193, in which he formulated what he described as the second of
three
"distinct
though kindred conceptions"
of
the rule of law:
"We mean in the
second place, when we speak of the "rule of law" as a
characteristic of our country, not only that
with us no man is above
the law, but (what is a different thing) that here every man,
whatever be his rank or condition, is subject
to the ordinary law of
the realm and amenable to the jurisdiction of the ordinary
tribunals."
[19]
Dicey's first conception of the rule of was formulated as follows in
the same work, 8
th
edition
1938:
"We mean, in the
first place, that no man is punishable or can be lawfully made to
suffer in body or goods except for a distinct
breach of law
established in the ordinary legal manner before the ordinary Courts
of the land. In this sense the rule of law in
contrasted with every
system of government based on the exercise by persons in authority of
wide, arbitrary, or discretionary powers
of constraint."
[20]
Prof A S Mathews in
The
Rule of Law - A Reassesment
in
Fiat
Justilia Essays in Memory of Olivier Deneys Schreiner
(1983)
endorsed Dicey's propositions on legality. In a discussion of the
manner in which legality secures justice in the field of
civil
liberties, he said,
inter
alia,
the
following:
"Legality
requires that the qualifications or limitations on the basic freedoms
should be general, prospective, open and clear.
Expressed
differently, restrictions on liberty that are over-broad, vague or
discriminatory will violate the legality principle
and facilitate the
erosion of civil liberties. Where the restrictions are imposed by the
criminal law, legality is expressed in
the maxim nullum crimen sine
lege; but the principle of a narrow and precise definition of legal
inroads into freedom is equally
applicable when they are imposed
outside the criminal law by executive action or in terms of private
law. Freedom through legality
means, in a nutshell, that the law's
constraints will be narrow and precise".
[21]
The existence in our law of the
nulla
poena sine lege
principle
was endorsed in the judgment of Ackermann J in
S
v Von Molendorff and
Another
1987
(1) SA 135
(T) at 169 C-J. In S
v
Malgas
2001
(2) SA 1222
(SCA) para 2 Marais JA described it thus:
" Parliament is
obviously empowered to create new offences and
abolish old ones
(whether they were statutorily created or originated in the common
law) and to provide for the penalties courts
may impose.
.No court exercising
criminal jurisdiction in South Africa could convincingly claim to be
the sole constitutional repository of
power to do such things.
Indeed, the courts have no inherent power to do any such thing. They
cannot create new crimes. Nor can
they invent a new kind of penalty
such as, for example, physical detention under lock and key at some
place other than a prison."
[22]
The
nulla
poena sine lege
principle
was reaffirmed in the judgment of Ackermann J (this time in the
Constitutional Court) in
S
v Dodo
2001
(3) SA 382 (CC) para
[13]:
"... the nature
and range of any punishment, whether determinate or indeterminate,
has to be founded in the common or statute
law; the principle of
legality nulla poena sine lege requires this. This principle was in
fact endorsed in Malgas. Even the exercise
of the Court's 'normative
judgment' [S v Dzukuda and Others; S v Tshilo
2000 (4) SA 1078
(CC)]
in determining the nature and severity of the sentence within the
options permitted by law has to be judicially exercised;
it is not
unfettered. This was and is true of all sentencing, not merely in the
case of the most severe sentences. Statutes abound
which limit court
powers, even those of a High Court, to impose sentences relating to,
for example, the extent of the punishment,
the circumstances under
which it may be imposed or when execution thereof may be suspended."
[23]
In support of the affirmation of the
nulla
poena sine lege
principle
Ackermann J referred,
inter
alia,
to
De Wet and Swanepoel
Die
Suid-Afrikaanse Strafreg
4
th
ed
44 - 47. This work contains a full discussion of the
nullum
crimen sine lege
and
nulla
crimen sine lege
principles.
The authors state,
inter
alia,
that
it is generally accepted in Western European countries with their
codified legal systems that no act is punishable unless it
is
contained in a law. This statement is supported by an impressive
array of authorities.
[24]
The
nulla
poena sine lege
principle
is applied in other countries. In Emmerson et al
Human
Rights and Criminal Justice
2
nd
edition
(2007) para 10.06 it is said that the principle is embedded in
English law. The authors quote,
inter
alia,
the
following passage in Professor Glanville Williams' work
Criminal
Law The General Part
second
edition (1961)
575:
"'Englishmen are
ruled by the law, and by the law alone', wrote Dicey. 'A man may with
us be punished for breach of law, but
he can be punished for nothing
else'. In its Latin dress of nullum crimen sine lege, Nulla Poena
sine lege - that there must be
no crime or punishment except in
accordance with fixed, predetermined law - this has been regarded by
most thinkers a self-evident
principle of justice ever since the
French Revolution. The citizen must be able to ascertain beforehand
how he stands with regard
to the criminal law; otherwise to punish
him for breach of that law is purposeless cruelty."
[25]
The judgment of Lord Bingham in the House of Lords in
R
v Rimmington
[2005]
UKHL 63
para [33] contains a description of the development and
application of the principle in the English common law. He summarised
the
position as follows, in para 33:
"33
There are two guiding principles: no one should be punished under a
law unless it is sufficiently clear and certain to
enable him to know
what conduct is forbidden before he does it; and no one should be
punished for any act which was not clearly
and ascertainably
punishable when the act was done. If the ambit of a common law
offence is to be enlarged, it "must be done
step by step on a
case by case basis and not with one large leap": R v Clark
(Mark)
[2003]
EWCA Crim 991,
[2003]
EWCA Crim 991,
[2003]
2 Cr App R 363, para 13."
[26]
In
Uttley,
R (on the application of) v Secretary of State for the Home
Department
[2004]
UKHL 38
(30 July 2004) Lord Rodger, in para [39], provided a short
history of the development of the
nulla
poena sine lege
principle:
"These and
similar provisions embody a principle of comparatively modern origin:
there can be no room for it in legal systems
which do not use
statutes to prescribe a particular punishment or range of punishments
for individual offences, but rely instead
on the court to choose the
appropriate punishment for any given offender. That was once the case
with most legal systems. Therefore,
although traces of the doctrine
can be found in the writings of Bartolus de Saxoferrato in the 14th
century (Commentaria ad digestum
vetus, de iustitia et iure, 1.9.49 -
51), it really came to prominence only towards the end of the 18th
century when developments
in constitutional thinking led to the idea
that crimes and their punishments should be regulated by statutes
passed by the legislature.
Article 8 of the French Declaration of the
Rights of Man 1791 famously proclaimed that "nul ne peut etre
puni qu'en vertu
d'une loi etablie et promulguee anterieurement au
delit et legalement appliquee." Ten years later, in his Lehrbuch
des gemeinen
in Deutschland geltenden peinlichen Rechts, p 20, para
24, von Feuerbach gave the principle its familiar and enduring Latin
form,
nulla poena sine lege. From these beginnings the principle came
to be generally recognised and eventually to take its place in many
constitutions, as well as, for example, in article 7(1) of the
European Convention on Human Rights and article 15 of the
International
Covenant on Civil and Political Rights."
[27]
In
R
v Rimmington supra
para
34 Lord Bingham also summarised the application of the
nulla
poena sine lege
principle
in the case law of the European Court of Human Rights with respect to
the European Convention of Human Rights ("the
Convention"):
"34 These common
law principles are entirely consistent with article 7(1) of the
European Convention, which provides:
'No punishment without
law
(1) 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.'
The European Court has
repeatedly considered the effect of this article, as also the
reference in article 8(2) to "in accordance
with the law"
and that in article 10(2) to "prescribed by law".
35
The effect of the Strasbourg jurisprudence on this topic has been
clear and consistent. The starting point is the old rule nullum
crimen, nulla poena sine lege (Kokkinakis v Greece
[1993] ECHR 20
;
(1993) 17 EHRR
397
, para 52; SW and CR v United Kingdom
[1995] ECHR 52
;
(1995) 21 EHRR 363
, para
35/33): only the law can define a crime and prescribe a penalty. An
offence must be clearly defined in law (SW and CR v United
Kingdom),
and a norm cannot be regarded as a law unless it is formulated with
sufficient precision to enable the citizen to foresee,
if need be
with appropriate advice, the consequences which a given course of
conduct may entail (Sunday Times v United Kingdom
(1979)
2 EHRR 245,
(1979)
2 EHRR 245,
para
49; G v Federal Republic of Germany (1989) 60 DR 256, 261, para 1; SW
and CR v United Kingdom, para 34/32).
Article 7 precludes
the punishment of acts not previously punishable, and existing
offences may not be extended to cover facts which
did not previously
constitute a criminal offence (ibid).
[28]
The principles summarised by Lord Bingham are consistently applied in
decisions of the European Court of Human Rights. See,
for example,
Scoppola
v Italy (No 2)
[2009]
ECHR 1297
paras [92] and
"92. The
guarantee enshrined in Article 7, which is an essential element of
the rule of law, occupies a prominent place in
the Convention system
of protection, as is underlined by the fact that no derogation from
it is permissible under Article 15 of
the Convention in time of war
or other public emergency. It should be construed and applied, as
follows from its object and purpose,
in such a way as to provide
effective safeguards against arbitrary prosecution, conviction and
punishment (see S W v the United
Kingdom and C R v the United
Kingdom, 22 November 1995, para 34 and 32 respectively, Series A nos
335-B and 335-C, and Kafkaris,
cited above, para 137).
93. Article 7 para 1
of the Convention goes beyond prohibition of the retrospective
application of criminal law to the detriment
of the accused. It also
sets forth, more generally, the principle that only the law can
define a crime and prescribe a penalty
(nullum crimen, nulla poena
sine lege). While it prohibits in particular extending the scope of
existing offences to acts which
previously were not criminal
offences, it also lays down the principle that the criminal law must
not be extensively construed
to an accused's detriment, for instance
by analogy (see, among other authorities, Coeme and Others v Belgium,
nos. 32492/96, 32547/96
32548/96, 33209/96 and 33210,96, para
145,
ECHR 2000
VII)."
[29]
In the matter of
Reference
re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.)
[1990]
1 S.C.R. 1123
, a judgment of the Supreme Court of Canada, Lamer J
quoted from two decisions of the Supreme Court of the United States
and then
said the following:
"The principles
expressed in these two citations are not new to our law. In fact they
are based on the ancient Latin maxim
nullum crimen sine lege, nulla
poena sine lege -- that there can be no crime or punishment unless it
is in accordance with law
that is certain, unambiguous and not
retroactive. The rationale underlying this principle is clear. It is
essential in a free and
democratic society that citizens are able, as
far as is possible, to foresee the consequences of their conduct in
order that persons
be given fair notice of what to avoid, and that
the discretion of those entrusted with law enforcement is limited by
clear and
explicit legislative standards (see Professor L. Tribe
American Constitutional Law (2nd ed. 1988), at p. 1033). This is
especially
important in the criminal law, where citizens are
potentially liable to a deprivation of liberty if their conduct is in
conflict
with the law."
[30]
The
nulla
poena sine lege
principle
has also been applied by the High Court of Australia. See
Polyukhovich
v The Commonwealth of Australia and Another
[1991]
HCA 32
[1991]
HCA 32
para
103:
"103. I do not
accept the submission of the Commonwealth in the absolute terms in
which it was proffered. In legislation, judicial
decisions and
statements of principles, both of municipal and international law,
there has emerged a general abhorrence of retroactive
criminal law.
The notion that there should be no crime or punishment, except in
accordance with law, was recognized as early as
1651, when Hobbes
wrote:
'No
law, made after a fact done, can make it a crime ... For before the
law, there is no transgression of the law':
Leviathan,
(1651), Chs.27-28, quoted in Glanville Williams, Criminal Law: The
General Part, 2nd ed. (1961) (hereafter "Williams"),
p 580.
[31]
I conclude, therefore, that the
nulla
poena sine lege
principle,
as an integral element of the legality doctrine, is firmly
established as part of the South African legal system.
An implied
provision of the Constitution?
[32]
I have thus far dealt with
nulla
poena sine lege
as
a principle of the common law. I now turn to the provisions of the
Constitution of the Republic of South Africa 1996 ("the
Constitution"). In
Fedsure
the
justices held that "the
principle
of legality is implied within the terms of the interim Constitution".
It
seems to me that there is no distinction in principle to be drawn in
this regard between Dicey's second conception of legality
that was
under consideration in that case and his first conception of legality
which is reflected in the
nulla
poena sine lege
principle.
[33] The rule of law is
one of the founding values of the Constitution. Section 1(c) thereof
reads as follows:
"1 Republic of
South Africa
The Republic of South
Africa is one, sovereign, democratic state founded on the following
values:
Human dignity, the
achievement of equality and the advancement of human rights and
freedoms.
Non-racialism and
non-sexism.
Supremacy of the
constitution and the rule of law.
Universal adult
suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government,
to ensure
accountability, responsiveness and openness."
[34]
I agree in this regard with the views expressed by Burchell
Principles
of Criminal Law
3
rd
edition
(2005) 106:
"The principle of
legality is the juristic kernel of the Rule of Law in the context of
the criminal law. The founding provisions
of the Constitution of the
Republic of South Africa, 1996, refer to the 'rule of law' and so any
aspects of the principle of legality
not specifically referred to in
the Constitution could be read into the Constitution by an
interpretation of the ambit of the Rule
of Law."
[35]
The provisions of sub-sections 35(3)(l) and (n) of the Constitution
also support an interpretation that the
nulla
poena sine lege
principle
is an implied provision of the Constitution. They read as follows:
"(3) 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]
The provisions of sub-sections 35(3)(l) and 35(3)(n) of the
Constitution, read together, are similar to those of Article 7(1)
of
the Convention. According to the interpretation of Article 7(1) by
the European Court of Human Rights, it does not only prohibit
the
retrospective application of the offence and the punishment. It also
sets forth the principle that only the law can define
a crime and
prescribe a penalty
(nullum
crimen, nulla poena sine lege).
[37]
In my view sub-sections 35(3)(l) and 35(3)(n) of the Constitution
must be interpreted in the same manner. This interpretation
follows
from a literal application of the words used. As to sub-section
35(3)(l): A statute which does not describe a crime would
not be
"an
offence under either national or international law at the time it was
committed".
The
principle
nullum
crimen sine lege
would
therefore apply, independently of any question of retrospectity.
[38]
Sub-section 35(3)(n) of the Constitution only refers to a conviction,
crimen,
and
not to punishment,
poena.
This
sub-section, however, requires that a comparison be made between the
"prescribed
punishment"
at
the time that the offence was committed and the
"prescribed
punishment"
at
the time of sentencing. On a proper interpretation of the concept
"prescribed
punishment"
it
means, in my view,
prescribed
by law.
The
application of the sub-section thus presupposes that a punishment
must be
prescribed
by law
on
both occasions. If a punishment is not prescribed by law, as in the
present case, this provision would, to the detriment of the
accused,
not be capable of implementation.
[39]
I am accordingly of view the
nulla
poena sine lege
principle
should be regarded as an implied provision of the Constitution.
Submissions on
behalf of appellant
[40]
Mr Badenhorst, on behalf of appellant, relied strongly on the
judgment of Mason J in
R
v Forlee
1917
TPD 52.
The appellant in that case had been indicted in terms of a
statute which forbade the selling and possession of opium. His main
ground of appeal was that the statute in question contained no
penalty clause. Mason J referred to a number of Roman Dutch writers
and expressed the view that where an act is definitely prohibited in
a manner which makes it clear that the legislature was not
exhorting
or advising, then it is punishable at the discretion of the judge
where the law has not itself attached any penalty.
He stated that the
same principles had been followed in England as well as in three
decisions of the Cape and Natal courts, namely
R
v Berg
1
Searle 93
,
R
v Lloyd
[1923] LKCA 37
;
1904
25 NLR 59
and
R
v Mhlongo
1910
31 NLR 1.
Mason J concluded that as the act in question had been
expressly prohibited in the public interest and with the evident
intention
of constituting an offence, it was punishable at the
discretion of the judge.
[41]
R
v Forlee
was
followed in this court in
R
v Langley
1931
CPD 31
and
R
v Baraitser
1931
CPD 418
but these decisions did not refer to any new principle or
authority and they did not take the matter any further. Neither
judgment
discussed or referred to the
nulla
poena sine lege
principle.
The issue was also referred to in R v Zinn
1946 AD 346
at 354-355 but
the court did not find it necessary to decide it.
[42]
In my view
R
v Forlee
cannot
be regarded as good law. De Wet en Swanepoel
op
cit
46-47
subjected the judgment to trenchant criticism. They pointed out that
it relied on outdated opinions of Roman Dutch writers
whilst ignoring
the later and more enlightened views of Van der Linden. In S
v
Francis
1994
(1) SACR 350
(C) at 355 d - g Ackermann J referred to some the
criticism of Forlee. He said that in his opinion there was
considerable justification
for such criticism. For purposes of that
decision, however, he found that it was not necessary to take the
matter further.
[43]
R
v Forlee,
I
may add, ignored the
nulla
poena sine lege
principle
or the considerations underlying it. The notion that punishment
should in each case be left at the discretion of the judge
is indeed
the antithesis of the
nulla
poena sine lege
principle.
In my view, moreover, such the decision cannot be justified in terms
of any recognised rule of the interpretation of
statutes.
[44]
Apart from
R
v Forlee,
Mr
Badenhorst argued that the law is correctly stated in the following
passage in Milton and Cowling
South
African Criminal Law and Procedure
Volume
III Statutory Offences 2
nd
edition
para 1-20:
"It is
fundamental to any civilized system of criminal law that punishment
is not inflicted except in respect of a contravention
of the law
previously defined as a crime (nulla poena sine lege). Conversely,
the doctrine of legality requires that in criminalizing
conduct the
legislature should specify the penalty for the offence (nulla crimen
sine poena). This principle is, however, by no
means universally
observed. It is true that more often than not the legislature in
criminalizing conduct will specify the penalty
attached to a
contravention of the enactment. However, failure so to specify is not
regarded as a serious flaw in the legislation.
In such a case, it is
presumed that the determination of the appropriate punishment has
been left to the courts. To the extent
that the courts habitually
exercise such a discretion in the punishment of common-law crimes,
this practice is not objectionable."
[45]
In my view this passage is not convincing. It is firstly a
contradictio
in terminis
to
describe a principle as
"fundamental
to any civilized system of criminal law"
and
then to say that non-compliance with that principle is not a
"serious
flaw".
Apart
from
R
v Forlee,
the
authors do not cite any judgment in support of their statement nor do
they provide any analysis of the
nulla
poena sine lege
principle.
It seems to me, upon analysis, that the views expressed in this
passage are simply the result of an unsuccessful attempt
to reconcile
the
nulla
poena sine lege
principle
with
R
v Forlee.
[46]
Appellant's counsel also relied on the judgment in S
v
Booi
[2010]
ZAFSHC 91
(12 August 2010). This matter came before two judges in the
Free State High Court by way of an automatic review in terms of
section 302
of the
Criminal Procedure Act 51 of 1977
. The accused had
been convicted of contravening section 15 of the Sexual Offences Act
ie consensual sexual penetration with a child.
The judges invited and
received a written response from the Director of Public Prosecutions
in regard to the effect of the absence
of a penalty clause in the
section. In the judgment only brief mention was made of the
nulla
poena sine lege
principle
without any discussion thereof. After referring to the above-quoted
passage in Milton and Cowling and to
R
v Forlee,
the
judges decided that the sentence fell within the discretion of the
magistrate.
[47]
I do not, with respect, find the judgment in S
v
Booi
persuasive.
It should be noted first that no-one was invited to argue this issue,
which is, on any version, a difficult one, on
behalf of the accused.
The judgment, furthermore, refers to
R
v Forlee
with
approval but it ignores the subsequent criticism of it. It contains
no analysis of the
nulla
poena sine lege
principle
or any reference to Ackermann's judgment in S
v
Dodo.
[48]
Mr Badenhorst also placed reliance upon two rules of the
interpretation of statutes, namely (i) the avoidance of absurd
results
(cf
S
and Another v Regional Magistrate: Venter and Another
2011
(2) SACR 274
(CC) and (ii) the presumption that the legislature acts
rationally (cf
Principal
Immigration Officer v Bhula
1931
AD 337).
Applying these two rules, he submitted, the court should
adopt an interpretation of section 5(1) of the Sexual Offences Act
that
would avoid the unfortunate consequences if the section cannot
be enforced.
[49]
It seems to me, however, that these rules of interpretation do not
assist appellant. They are in the first place presumptions
and would
only apply where a particular word or phrase in a statute is
ambiguous. See
Adampol
(Pty) Ltd v Administrator, Tvl
1989
(3) SA 800
(A) 809F-H. The presumptions cannot be used to rewrite or
complete any piece of legislation. It is, secondly, not correct to
judge
questions of absurdity or rationality in the light of the
possible consequences of a decision that section 5(1) of the Sexual
Offences
Act cannot be enforced at this stage. The question is
whether the section, as it was promulgated and still stands,
discloses a
defence or not.
[50]
Mr Badenhorst argued that the legislature intended to leave the
question of punishment at the discretion of the court. Mr Botha,
for
respondent, asked rhetorically: If that were the intention, why did
the legislature not say so? I agree. Mr Badenhorst, furthermore,
did
not cite any authority (apart from
R
v Forlee)
to
support such a radical departure from the words of the statute. The
concept of conferring such a discretion on the court would
also
contradict and totally undermine the
nulla
poena sine lege
principle.
Was
the omission of a penalty clause a mistake?
[51]
The question whether the omission of a penalty clause in section 5(1)
of the Sexual Offences Act was not perhaps a mistake,
was raised in
argument. In that event it might be suggested that the
casus
omissus
rule
should be applied. A
casus
omissus
can
be described as a
contingency
not
provided for by the legislature or, put differently, a gap in the
statute that has not been filled.
[52]
There is a clear pattern in the Sexual Offences Act, namely that all
the sections creating sexual offences are without penalty
clauses
whilst the sections creating less serious offences do contain penalty
clauses. The only exception to the pattern is to
be found in section
55 of the Sexual Offences Act, quoted in para [15] above, which deals
with the position of accomplices and
the like with respect to sexual
offences. Section 55 does contain a penalty clause but it is
meaningless because it refers to
"the
punishment to which a person convicted of actually committing that
offence would be liable."
[53]
This pattern in the Sexual Offences Act creates an almost
irrebuttable inference that the omission of penalty clauses with
respect to the sexual offences was intentional. In that event,
however, it must be accepted that the words of the statute reflected
the true intention of the legislature. As such they fundamentally
contradict and undermine the
nulla
poena sine lege
principle.
[54]
A possible alternative solution is that the
casu
omissus
rule
may find application. The requirements for the application of the
rule are strict. I dealt with them in my judgment in
Mercedes
Benz Financial Services South Africa (Pty) Ltd v Dunga
2011
(1) SA 374
(WCC). It appears from this judgment and the authorities
mentioned therein that the rule can only be applied if there is
certainty
as to the real intention of the legislature. Its intention,
it has been said, must be indisputable. In the light of the
authorities
mentioned in S
v
Tieties
[1990] ZASCA 4
;
1990
(2) SA 461
(AD) 463 E-J, I summarised the position as follows:
"[22] It seems to
me therefore that it would be permissible to provide for a casus
omissus if the intention of the legislature
is clear. If that
intention is only the subject of surmise, speculation, expectation or
even probability, this method of interpretation
is not allowed."
On
the issue of a
casus
omissus,
I
may mention, the
Dunga
judgment
was referred to with approval in
Collett
v Firstrand Bank Ltd
2011
(4) SA
508 (SCA) para [17].
[55]
In the present case there is, in my view, two reasons why the
casus
omissus
rule
can not be applied. In the first place it is an essential element of
the crime itself that it is required to be filled in.
The reason for
the
nulla
poena sine lege
principle
is to inform the citizens of the consequences of any proposed course
of conduct and to enable the courts to avoid the
imposition of
arbitrary penalties. The filling in of a word or phrase in section
5(1) of the Sexual Offences Act in order to describe
a punishment
would be totally inconsistent with such a reason.
[56]
The second reason why the
casus
omissus
rule
does not apply, is that there is no certainty as to what the
legislature intended if the omission had been a mistake. There
is not
even a probability. It would a matter of speculation. This becomes
obvious when one considers, for example, what word or
phrase is
required to be inserted in section 5(1) of the Sexual Offences Act,
and in the other sections creating sexual offences,
in order to
reflect the suggested intention of the legislature. Penalties may
consist of fines or imprisonment or both. Penalties
may include
maximum or minimum limitations and the conditions for the relaxation
of both.
Conclusion
[57] I am accordingly of
the view that the regional magistrate was correct in deciding that
the charge against respondent did not
disclose an offence.
[58] In the premises, the
appeal is dismissed.
A P BLIGNAULT
FORTUIN
J:
I
agree
C
M FORTUIN
MANTAME
J:
I
agree
B P MANTAME