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n Tydskrif vir die Suid-Afrikaanse Reg - Die legaliteitsbeginsel en die toelaatbaarheid van regterlike aktivisme by die ontwikkeling van die substantiewe strafreg (deel 2)
Legality and the permissibility of judicial activism in developing substantive criminal law
The common-law understanding of the legality principle prohibits courts from creating new crimes; extending the definitions of existing crimes; and broadening the field of application of existing crimes. The ambit of protection afforded by the principle nullum crimen sine lege - now a guaranteed fundamental right of every accused person in terms of the Constitution of the Republic of South Africa, 1996 has been considered by the constitutional court only superficially in Masiya v DPP 2007 2 SACR 435 (CC). This decision has caused a re-evaluation of the permissible boundaries of judicial creativity, particularly in the context of the extension of the definitions of crimes. In DPP, Western Cape v Prins 2012 2 SACR 183 (SCA) the supreme court of appeal emphasised the importance of the rule and its proper interpretation in a constitutional dispensation.
The purpose of this article is to consider the courts' role in giving effect to the principle. A synopsis of the historical development of the rule is provided by considering the reasons for recognition of this rule. The current application of the principle in codified and uncodified foreign legal systems is discussed. The development and application of the rule in South African law are considered critically. The conclusion reached is that, in uncodified criminal-law systems, and to a lesser extent also in codified legal systems, judicial interpretation inevitably involves an element of creativity and consequently allows for judicial activism. Although flexibility in the development of the criminal law may be desirable to adapt the law to the needs of society, the principle of legality requires that judges exercise restraint in extending the field of application of crimes.
The significance of the legality principle as part of the broader rule-of-law principle leads to the conclusion that the power conferred on courts in terms of the constitution to develop the common law according to constitutional imperatives does not include the power (as argued in the Masiya decision) to extend the definitions of crimes. As in other jurisdictions, a principled approach is favoured which absolutely prohibits judicial extension of the definitions of crimes.
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