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

• Jurisdiction: South Africa

Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae)
2007 (5) SA 30 (CC)

2007 (5) SA p30

Citation	2007 (5) SA 30 (CC)
Case No	CCT 54/06
Court	Constitutional Court
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
Heard	November 9, 2006
Judgment	May 10, 2007
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.

Flynote : Sleutelwoorde B

Criminal law — Rape — Common-law definition of — Extended to include C non-consensual anal penetration of woman — Pending Sexual Offences Bill not thwarting broadening of definition since such extension clearly in public interest and delay causing injustice for survivors of non-consensual anal penetration.

Criminal law — Rape — Common-law definition of — Whether to be extended D to include non-consensual anal penetration of man — Facts not requiring Court to consider matter — Not unconstitutional to have gender-specific definition of rape.

Magistrates' court — Powers of — Not empowered to vary elements of crimes in light of Constitution — No constitutional or legislative mandate for referral from magistrate's court to High Court for development of common law in E line with Constitution — Magistrate's court nonetheless bound to give effect to constitutional rights and ensure criminal trials conducted in accordance with Constitution.

Constitutional law — Common law — Development of — Duty of Courts to develop common law 'in accordance with spirit, purport and objects of Bill of F Rights' — Prospectivity — Exclusively prospective development of common law appropriate only in exceptional cases — Extension of common-law definition of rape to include non-consensual intentional penetration of penis into female anus — Convicting accused of offence when conduct not constituting particular offence at time of commission unfair and violating s 35(3)(l) of Constitution — Extended definition to apply only prospectively. G

Headnote : Kopnota

The applicant had been convicted in the regional magistrate's court of the rape of a nine-year-old girl for wrongfully and unlawfully having anal sexual intercourse with her, without her consent. The regional court had found H that the common-law definition of rape was unconstitutional and had extended it to include acts of non-consensual sexual penetration of the male penis into the anus of another person. The High Court had endorsed the attitude taken by the magistrate's court, and the matter came before the Constitutional Court for confirmation under s 172(2)(a) of the Constitution of the Republic of South Africa, 1996. I

1. Extending the definition of rape to include anal penetration of female

Held, that the current common-law definition of rape was not unconstitutional insofar as it criminalised conduct that was clearly morally and socially unacceptable. The definition did, however, need to be appropriately adapted because it fell short of the spirit, purport and objects of the Bill of J Rights. (Paragraphs [27], [32] and [70] at 45C, 47F and 59D - E.).

2007 (5) SA p31

Held, further, that non-consensual anal penetration of women and young girls A constituted a form of violence against them equal in intensity and impact to non-consensual vaginal penetration. Extending the definition of rape to include penetration of a female's anus would protect the dignity of survivors, especially young girls unable to differentiate between the different types of penetration, and increase the extent to which the traditionally most vulnerable and disadvantaged group in society (women and young girls) B would be protected by and benefit from the law. (Paragraphs [37] - [39] at 49F - 50D.)

Held, further, that the fact that the 2003 Bill on Sexual Offences (Bill B50 - 2003) was currently before Parliament could not thwart the extension of the definition or cause the Court to delay, defer or refuse to deal with the C extension. The facts before the Court demanded the extension and it was clearly in the public interest. Any further delay to the extension of the definition would constitute an injustice upon the survivors of non-consensual anal penetration. (Paragraph [44] at 51H - 52B.)

Held, accordingly, that the common-law definition of rape should be extended to D include acts of non-consensual, intentional penetration of a penis into a female's anus. (Paragraphs [45] and [74] at 52D and 60E.)

2. Prospective development of the common law

Held, that it was possible, when the interests of justice required it, for the Courts to develop the common law prospectively only, but this would only be appropriate in rare cases. (Paragraphs [49] and [51] at 53B - 54A.) E

Held, further, that if the definition of rape were to be extended retrospectively it would offend the principle of legality. Fairness to the accused required that the extension of the definition of rape not be applied to him but only to cases arising after this judgment had been handed down. It would be unfair to convict an accused of an offence in circumstances where the conduct in F question did not constitute the offence at the time of the commission. For the applicant to be convicted of rape would be in violation of his right in s 35(3)(l) of the Constitution. (Paragraphs [51], [56] and [57] at 53F - G and 56C - F.)

Held, accordingly, that the development of the common-law definition was applicable only to conduct that took place after the date of this judgment. G (Paragraph [74] at 60E - F.) The conviction of the applicant of rape was set aside and replaced with a conviction of indecent assault; the case was remitted to the magistrates' court for sentencing.

3. Extending the definition of rape to include anal penetration of male

Held, that the facts did not require the Court to consider whether or not the H common-law definition of rape should be extended to include the non-consensual penetration by a penis of a male anus. (Paragraph [29] at 46D.)

Held, further that it was not unconstitutional to have a definition of rape that was gender-specific. (Paragraph [30] at 46F.)

Held, accordingly that the Court could not confirm the High Court's declaration I of invalidity to the extent that it was based on conclusions relating to the gender-neutral nature of rape, an issue that had not arisen on the facts of this case. (Paragraphs [59], [61] and [62] at 56I and 57C - D.)

In a separate minority judgment, Langa CJ (Sachs J concurring) held that development of the common-law definition of rape should be taken further to include the anal rape of men. J

2007 (5) SA p32

4. Powers of magistrates' courts

Held, A that s 173 of the Constitution explicitly empowered only the Constitutional Court, the Supreme Court of Appeal and the High Courts to develop the common law. Magistrates' courts were excluded. Moreover, s 110 of the Magistrates' Courts Act 32 of 1944 prohibited magistrates from pronouncing on the validity of any law, which attenuated the duty of magistrates' B courts to develop the common law. Magistrates' courts were, however, bound to give effect to constitutional rights and to ensure that criminal trials were conducted in accordance with the Constitution, particularly the fair trial rights of the accused. (Paragraphs [66] - [68] at 58A - F.)

Held, further, that there did not seem to be any constitutional or legislative mandate for the referral to the High Court for confirmation of all cases in C which a magistrate saw fit to develop the common law in line with the Constitution. (Paragraph [69] at 59B.)

Held, accordingly, that magistrates were not empowered to vary the elements of crimes in the light of the Constitution. (Paragraph [69] at 59C.)

Cases Considered

Annotations

Reported cases D

Southern African cases

Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC) (1998 (10) BCLR 1207): applied

Carmichele v Minister of Safety and Security and Another (Centre for Applied E Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995): dicta in paras [36] and [81] applied

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 (3) SA 936 (CC) (2000 (8) BCLR 837): applied

Du Plessis and Others v De Klerk and Another F 1996 (3) SA 850 (CC) (1996 (5) BCLR 658): dicta in paras [61] and [65] applied

Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (4) SA 613 (CC) (2002 (2) SACR 105; 2002 (7) BCLR 663): applied

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others G 1996 (1) SA 984 (CC) (1996 (1) BCLR 1): dictum in para [183] applied

Fourie and Another v Minister of Home Affairs and Another 2003 (5) SA 301 (CC) (2003 (10) BCLR 1092): applied

Ingledew v Financial Services Board: In re Financial Services Board v Van der Merwe and Another 2003 (4) SA 584 (CC) (2003 (8) BCLR 825): applied

J and Another v Director General, Department of Home Affairs, and Others H 2003 (5) SA 621 (CC) (2003 (5) BCLR 463): referred to

Mabaso v Law Society, Northern Provinces, and Another 2005 (2) SA 117 (CC) (2005 (2) BCLR 129): distinguished

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 Others 2006 (1) SA 524 (CC) I (2006 (3) BCLR 355): referred to

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