n South African Journal of Criminal Justice - The limits of judicial law-making in the development of common-law crimes : revisiting the decisions




Since the Constitutional Court judgment of , a number of articles have been written that lament the failure of the Court 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 judicial 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 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.


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