n South African Journal of Criminal Justice - General principles and specific offences : recent cases

Volume 27, Issue 2
  • ISSN : 1011-8527
  • E-ISSN: 1996-2118



The Constitutional dimensions of the principle were considered only superficially in 2007 (2) SACR 435 (CC). Interpretation of the principle entrenched in s 35(3)() of the Bill of Rights was limited to protection afforded to the particular accused () against a conviction of rape, a crime which, although recognised as an offence at the time of his conduct (anal penetration of a young girl without her consent), was not sufficiently broadly defined to include his particular act. By recognising that the Constitutional Court and divisions of the high court and the Supreme Court of Appeal are empowered in terms of certain provisions of the Constitution to extend the definition of a crime, the court failed to sufficiently weigh the core values that underpin a democratic state as embodied in the principle of legality (s 35(3)()) and the broader principle of the rule of law (see CR Snyman 'Extending the scope of rape - a dangerous precedent' (2007) 124 677; S Hoctor 'Recent cases - Specific crimes' (2007) 20 260, 262 and R Ramosa 'The limits of judicial law-making in the development of common-law crimes: revisiting the Masiya decisions' (2009) 22 353).

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