1

Legality

Conduct

Causation

Unlawfulness

Criminal capacity

Fault
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Learning unit 2 – Legality
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Learning unit 2 : Principle of legality

1

The principle of legality is contained in section 35(3)(l) and (n) of the Constitution

Section 35 forms part of Chapter 2 of the Bill of Rights. The Bill of Rights concerns all the
rules of law. It therefore binds the legislative, executive and judicial powers of the state.

Section 35(3)(l) :

Every accused person shall have the right not to be convicted of an

act or omission which was not an offence under either national or
international law at the time it was committed or omitted

Section 35(3)(n) :

Every accused person shall have the right to the benefit of the least
severe of the prescribed punishments if the punishment for the
offence has been changed between the time that the offence was
committed and the time of sentencing
2

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Learning unit 2 – Legality
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Learning unit 2 – Legality
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Snyman’s definition of the principle of legality :

An accused ought not to be found guilty of a crime and sentenced unless the type of conduct
with which he is charged :

• has been recognised by the law as a crime,

• in clear terms and

• before the conduct took place,

• without the court having to stretch the meaning of the words and concepts in the
definition to

• bring the particular conduct of the accused

within the compass of the definition, and

• after conviction, the imposition of punishment also

complies with the four principles set out 3

immediately above.

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Learning unit 2 – Legality
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Principles of
legality
4

nullum crimen
sine lege

Ius acceptum Ius praevium Ius certum Ius strictum Nulla poena
Kind of act Definition of a Four rules must
Kind of act Act recognised as crime must be also be applied
performed was
performed must a crime must be interpreted when imposing a
recognised as a
be recognised as certain and not narrowly rather sentence i.e. nulla
crime at time of
a crime vague than broadly poena sine lege
commission

Legal norm : provision in an Act creating a legal rule which does

Statutory crimes not simultaneously create a crime
Common law Particular Act
crimes must declare Criminal norm : provision in an Act which makes it clear that
If no provision in particular type of certain conduct constitutes a crime
common law – no conduct as a
REFERENCES crime and
crime and thus no
punishment to be Criminal sanction : provision in an Act stipulating what
punishment
imposed punishment must be imposed by a court after person convicted

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Learning unit 2 – Legality
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Snyman, C.R. 2014. Criminal Law. 6th ed. Durban: LexisNexis

1. https://nigerian-constitution.com/chapter-4-section-35-right-to-personal-liberty/
2. https://www.sahistory.org.za/dated-event/first-draft-constitution-published
3. https://en.wikipedia.org/wiki/Justice_Party_(United_States)
4. http://www.pngall.com/court-hammer-png/download/17584

GPCL5112
Learning unit 2 – Legality