Legal Matters

Before a person (an accused person) can be convicted of any crime the requirement of legality must be satisfied.

Legality, which is not an element of the crime but forms part of criminal liability, has to do with whether the law recognises the conduct as a crime. It is a constitutional demand embodied in section 35(3)(l) and 35(3)(n) of the Constitution of the Republic of South Africa, 1996. The principle of legality (also known as the nullum crimen sine lege – principle) – is not an element of the crime in its strict sense in that the accused by his conduct and subjective attributes must comply with this requirement.

The principle of legality means that the type of conduct alleged in the charge sheet is recognised in our law as a crime either by common law or statutory law. Certain conduct may be morally or on religious ground be wrong or unacceptable from the perspective of a certain group in society or the judicial officer, but nevertheless not prohibited by the law. An example is the former offence of sodomy between two consenting males. (The Constitutional Court declared the offence of sodomy between two consenting adult males as unconstitutional and void – see National Coalition of Gay and Lesbian Equality v Minister of Justice [1998] JOL 3801 (CC)). Any future prosecution for sodomy between consenting males will be invalid.

Section 35(3)(l) of the Constitution of the Republic of South Africa, 1996 (hereafter, the “Constitution”) provides that:
“Every accused person has a right to a fair trial, which includes the right –
not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted.”

This section implies the following rules. (The Latin rules or expressions are placed in brackets.)

(a) A court may find an accused guilty of a crime only if the kind of act performed is recognised by the law as a crime – in other words, a court itself may not create a crime. (This is the ius acceptum rule).

(b) A court may find an accused guilty of a crime only if the kind of act performed was recognised as a crime at the time of its commission. (This is the ius praevium rule).

(c) Crimes ought not to be formulated vaguely. (This is the ius certum rule).

(d) A court must interpret the definition of a crime narrowly rather than broadly. This protects the accused and brings legal certainty. (This is the ius strictum rule).

(e) After an accused has been found guilty, the above-mentioned four rules must also be applied when it comes to imposing a sentence; this means that the applicable sentence must already have been determined in reasonably clear terms by the law at the time of the commission of the crime; that a court must interpret the words defining the punishment narrowly rather than broadly, and that a court is not free to impose any sentence other than the one legally authorised. (This is the nulla poena sine lege rule, which can be further abbreviated to the nulla poena rule).

Obviously all common law crimes (such as murder, culpable homicide, robbery, theft, housebreaking and assault to name a few), will not stipulate a criminal sanction (rule 5 above) and will be punished according to the trial court’s penal jurisdiction. However, the principle of legality demands as far as statutory offences are concerned that such an offence must consist of a criminal norm which makes it clear that a certain specific conduct constitutes a crime and a criminal sanction prescribing what punishment a court must impose after it has convicted a person of that crime.

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