The limits of judicial law-making in the development of common-law crimes: Revisiting the Masiya decisions

• Jurisdiction: South Africa
• Pages: 353-370
• Citation: (2009) 22 SACJ 353
• Author: Rapelang Ramosa
• Date: 16 August 2019
• Published date: 16 August 2019

The limits of judicial law-making

in the development of common-

law crimes: Revisiting the Masiya

decisions

RAPELANG RAMOSA*

ABSTRACT

Since the Constitutional Court judgment of Masiya v DPP, a number of ar-

ticles have been written that lament the failure of the Cour t to extend the

common-law def‌inition of rape to include non-consensual penile penetration

of the male anus. It is assumed that the obligation of the courts to develop

common-law crimes in terms of s 39(2) of the Constitution permits the ju-

dicial extension of the proscribed ambit of such crimes. This article aims to

demonstrate that the courts’ inherent power to develop common-law crimes

does not include the power to extend the proscribed ambit of such crimes,

and neither does s 39(2) confer such power. The manner in which the three

Masiya forums purported to develop the def‌inition of rape constitutes an

unconstitutional exercise of judicial power as it violates the rule of law and

the separation of powers.

Introduction

In May 2007, the Constitutional Court handed down a judgment in

which it extended the def‌inition of the common-law crime of rape to

include ‘acts of non-consensual penetration of a penis into the anus of

a female’.1 Since then, a number of articles concerning the judgment

have been written.2 Most of them lamented the failure of the court to

extend the def‌inition to include non-consensual penile penetration of

* BSc (Rhodes University) LLB (Wits), Lecturer UNISA.

1 Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC). (Hereafter ‘Masiya

CCT’).

2 T Maseko ‘The impact of the principle of the separation of powers on the develop-

ment of common law and the protection of the rape victims’ rights’ (2008) 29 Obiter

53; CR Snyman ‘Extending the scope of rape — a dangerous precedent’ (2007) 124

SALJ 677; K Phelps and S Kazee ‘The Constitutional Court gets anal about rape —

gender neutrality and the principle of legality in Masiya v DPP’ (2007) 20 SACJ 341;

S Dersso ‘The role of courts in the development of the common law under s 39(2):

Masiya v Director of Public Prosecutions Pretoria (The State) and Another CCT Case

54/06 (10 May 2007)’ (2007) 23 SAJHR 373; S Hoctor ‘Rape and the principle of legal-

ity’ (2007) 20 SACJ 78.

353

(2009) 22 SACJ 353

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the male anus.3 These arguments assume that the obligation to develop

the common law in terms of s 39(2) of the Constitution empowers the

courts to extend the proscribed ambit of common-law crimes. This

article aims to challenge this assumption by demonstrating that the

courts’ inherent power to develop the common law does not include

the power to extend the proscribed ambit of common-law crimes, and

neither can s 39(2) be interpreted to confer such power. I will argue

that the manner in which the Masiya courts purported to develop the

common-law def‌inition of rape constitutes an unconstitutional exercise

of judicial power as it violates the rule of law and the separation of

powers.

After providing the factual background of the Masiya decisions, I

will discuss the constitutional principles of legality and the separation

of powers and the extent to which they apply to the judicial devel-

opment of common-law crimes. After making conclusions about the

appropriate manner in which the judicial development of such crimes

should take place, I conclude by assessing the performances of the

Masiya courts in this regard.

PART I

Proceedings in the Regional Magistrate’s Court

Mr Masiya was charged with the rape of a young girl (the complainant)

in the Regional Magistrate’s Court.4 He pleaded not guilty but elected

not to give evidence in his defence. At the end of the State’s case, the

evidence established that the complainant was penetrated anally. On

this basis, both the State and the defence argued that he be convicted

of indecent assault, a competent verdict to a charge of rape. However

the magistrate, of his own accord, decided to consider whether the

common-law def‌inition of rape needed to be developed. He held that

the def‌inition discriminated arbitrarily against victims of sexual pen-

etration — males and females — with regard to which kind of sexual

penetration is to be regarded as most serious.5 The magistrate held

that such discrimination was irrational and unconstitutional;6 that the

def‌inition should be developed to promote constitutional objectives;

3 K Phelps and S Kazee op cit (n2) 341; T Maseko op cit (n2) 53 at 63, 64 and 67; S

Dersso op cit (n2) 373.

4 S v Masiya case no SHG 94/04 11 July 2005, unreported (hereafter ‘Masiya RMC’).

Details of the facts and holding of the Magistrate taken from High Court judgment —

S v Masiya 2006 (2) SACR 357 (T), (hereafter ‘Masiya TPD’).

5 Masiya TPD supra (n4) at 363h-j.

6 Ibid.

354 SACJ . (2009) 3

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