Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae)

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Kondile J, Madala J, Mokgoro J, Nkabinde J, O'Regan J, Sachs J, Van Der Westhuizen J, Yacoob J and Van Heerden AJ
• Judgment Date: 10 May 2007
• Docket Number: CCT 54/06
• Hearing Date: 09 November 2006
• Counsel: P J J de Jager and J Bauer for the applicant. H M Meintjies and S Bakua for the first respondent. N Cassim SC (with S M Lebala and P T Bezuidenhout) for the second respondent. K Pillay for the amici curiae.
• Court: Constitutional Court

Nkabinde J:

[1] This case is about the constitutional validity of the common-law G 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 H two bases. First, confirmation proceedings in terms of s 172(2)(a) [1] of the Constitution of the Republic of South Africa, 1996. Second, an

Nkabinde J

application for leave to appeal [2] against the whole of the judgment and A order of the Pretoria High Court [3] in which that Court confirmed the applicant's conviction by the regional court. [4]

[2] 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 B it currently stands, for the reasons given by the learned magistrate in his judgment and for the further reasons set out in this judgment.

2.

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. C

3.

The provisions of Act 105 of 1997 [**] and its schedules and ss 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.

4.

Where the provisions referred to in (3) above are gender specific there be D a reading in of ''person'' wherever reference is made to a specific gender.

5.

The proceedings in the court a quo are determined to be in accordance with justice in terms of the provisions of s 52 of Act 105 of 1997.

6.

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.' E

[3] As apparent from paras (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 of 1977 (the CPA) [5] and of the Criminal Law Amendment Act of F 1997 (the Act) [6] and their relevant Schedules are inconsistent with the Constitution to the extent that they are gender-specific.

[4] 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 G (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. H

Nkabinde J

Background A

[5] The facts appear from the judgment of the High Court. I restate only the relevant facts to make the discussion in this judgment comprehensible.

[6] Mr Masiya, 44 years of age, was initially brought before the district B 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 C 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.

[7] Mr Masiya neither gave evidence nor called witnesses to testify. The D 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.

[8] The regional court, of its own accord, considered whether the common law needed to be developed. The defence contended that magistrates' courts E 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 F 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 ss 8(3) [9] and 39(2) [10] of the Constitution speak, respectively, of 'a court' and 'every court, tribunal or forum'.

Nkabinde J

[9] The regional court remarked further that - A

'(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. B 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 C 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.) D

[10] 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. E The Court held that although the development would impact on Mr Masiya's fair trial rights in terms of s 35(3)(n) [13] of the Constitution those fair trial rights could be limited on the basis that:

(a)

Non-consensual anal penetration already constitutes an offence, namely indecent assault, and is manifestly immoral and unjust; F

(b)

retroactive punishment could have been foreseen by Mr Masiya;

(c)

such development will be consistent with foreign law;

(d)

the rights of society are weightier than those of Mr Masiya not to be convicted of and sentenced to a more serious offence;

(e)

less restrictive means to achieve the purpose sought to be achieved G 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

(f)

the developed definition would become law of general application if endorsed by the High Court upon referral. H

[11] The regional court thus extended the definition of rape to include 'acts of non-consensual sexual penetration of the male sexual organ into

Nkabinde J

the A 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 B of s 52 [15] of the Act for the purpose of sentence.

Nkabinde J

[12] Section 52(1)(b)(i) of the Act enjoins the regional court, when A 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 B 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 s 52(3)(d) of the Act.

[13] All the parties agreed that the complainant's mother, who had C 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 D 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. E

Nkabinde J

[14] A The High Court, relying on certain provisions of the Constitution - ss 8(1), [18] 39(2), [19] 10, [20] 170, [21] 172(1) [22] and (2)(a) [23] as well as s 173 [24] of the Constitution - with reference to the power of the...