Jeugdigheid Unlawfulness Moord {egat Attempt. Criminal Capacit y eodos RY Act ¢ Geestesongesteldheid dronkenskap Priva aaa het hemeter poen Of late Robbery Nederregtelikheid - fe eere: Act or omission: Hoogverraad Crimeniniuria loestemming Criminal Capacity ssa ¢ sugaigne Cl aes ausd 2) Legaliteitsbegir Begunst q Deelner bkeningsvat ciple of legality tilts Pt Causation sion Skul re a 1 my LAW CASEI 5A gdigheid BOOS Berl nlaw ful oxicatior faliteitsbeginsel aio! not acca AAA al Be At tempt Mental illness Moord SAKEBUND Aanranding Nederre Hoogverraad Fraud Accessory after the fact Wederreg telikheid Unlawfulness Private defence Robbery Criminal Capacity | egaliteitsbeginsel Premicreat Toerekeningsvatbaarheid SAG, b.208 ae randing Act or omission Geestesongesteldheid Deelneming Legaliteitsbeginsel Participation WITH ENGLISH TRANSLATIONSCriminal Law Casebook Fifth Edition Strafregsakebundel vyfde Uitgawe by/deur CR Snyman BA LUD Professor Emeritus and Research Fellow, Department of Criminal and Procedural Law, University of South africa Emeritus Professor en Navorsingsgenoot, Departement Straf- en Prosesreg, Universiteit van Suid-Afrika = JUT.This book is the fifth edition of the book entitled Strafreavonnisbundel/Criminal Law Casebook (first published 1991). Copyright is reserved. First Edition 1994 Revised Reprint 1992 Reprinted 1994 Second Edition 1995 Reprinted 1999 Second Reprint 1999 Third Reprint 2004 Fourth Reprint 2002 Third Edition 2003 Fourth Edition 2008 Fifth Edition 2013 © Juta and Company (Pty) Led First Floor, Sunclare Building, 21 Dreyer Street Claremont, 7708, Cape Town Pd Box 24299, Lansdowne 7779 PO Box 44368, Claremont 7735 www.jutalaw.co.za This book is copyright under the Berne Convention. In terms of the Copyright Act, No 98 of 1978, no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the Publisher. ISBN (print): 978 0 70219 996 7 ISBN (epud): 978 0 70219 964 6 Cover Design by Drag & Drop Eerste Uitgawe 1991 Hersiene Herdruk 1992 Herdruk 1994 Tweede Vitgawe 1995 Herdruk 1999 Tweede Herdruk 1999 Derde Herdruk 2001 Vierde Herdruk 2002 Derde Uitgawe 2003 Vierde vitgawe 2008 vytde Uitgawe 2013www. jutalaw.co.za This book is copyright under the Berne Convention. In terms of the Copyright Act, No 98 of 1978, no part of this beok may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photecopying, recording or by any information storage and retrieval system, without permission in writing from the Publisher. ISBN (print): 978 0 70219 996 7 ISBN (epud): 978 0 70219 964 6 Cover Design by Drag & Drop Eerste Uitgawe 1991 Hersiene Herdruk 1992 Herdruk 1994 Tweede Vitgawe 1995 Herdruk 1999 Tweede Herdruk 1999 Derde Herdruk 2001 Vierde Herdruk 2002 Derde Vitgawe 2003 Vierde Uitgawe 2008 Vyfde Uitgawe 2013 © Juta en Kie (Fdms) Bple Aste Verdieping, Sunclare Gebou, Dreyerstraat 21, Claremont, 7708, Kaapstad Posbus 24299, Lansdowne 7779 Posbus 44368, Claremont 7735 www jutalaw.co.za Die outeursreg van hierdie boek word kragtens die Bern-konvensie voorbehou. Ingevolge die Wet op Outeursreg 98 van 1978 mag geen gedeeite van hierdie boek in enige vorm of op enige manier, eleKtronies of meganies, insiuitende fotokopiéring, plaat- en bandopname, of deur enige inligtingsbewaring- en ontsluitingstelsel sonder skriftelike toestemming van die Uitgewer, weergegee of gebruik word nie. ISBN (print): 978 0 70219 996 7 ISBN (epub): 978 0 70219 964 6 Omslagontwerp deur Drag & Drop Hierdie boek is die vyfde uitgawe van die boek Strafregvonnisbundel/Criminal Law Casebook (eerste gepubliseer in 1991). Kopiereg is voorbehou.Preface The purpose of this book is to provide students studying criminal law with a collection of the most important decisions on criminal law, or extracts thereof. It is not meant to be used as an exclusive source in the study of criminal law, but rather as material supplementary to 2 textbook or other complete guide on this branch of the law, Furthermore, it is intended for use in a beginners or first course in criminal law. In deciding upon the number and lenath of cases included in this collection, I was guided by the realistic needs of students in a first course in criminal law, bearing in mind that they usually study not only criminal law, but also other subjects ina given year. This casebook should be suitable for both @ course devoted solely to a study of the general principles of criminal law and one in which the general principles as well as the most important specific crimes are studied. The book contains 41 cases dealing with general principles. Although only seven cases deal directly with specific crimes, there are amongst the cases on the general principles a number which simultaneously cover certain specific crimes. Thus S v Masiya 2007 (2) SACR 435 (CC) and Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA) also deal with rage; S v Sam 1980 (4) SA 289 (T) with the statutory offence of pointing a fireerm; and Sv Mostert 2006 (1) SACR 560 (N) with crimen iniuria. S v Mshumpa 2008 (1) SACR 126 (E) deals not only with murder and the principle of legality, but also with a number of specific crimes, such as robbery, obstructing the course of justice, the unlawful possession of arms and ammunition, incitement and conspiracy. Again, all the decisions on causation and private defence, as well as most decisions on criminal capacity, culpability and participation simultaneously cover the crimes of murder and culpable homicide, Exactly because this book is intended as supplementary material to a textbook, the notes on the cases are not comprehensive; they are intended merely to facilitate comprehension of a case, clarify certain matters and point out the significance of a judgment. To enable students who do not have the opportunity of using a law library to see typical examples of reported judgments, a number of reasonably short judgments have been printed in full, that is, they include the full title, headnote, etc. Judgments printed in full are R v Ohlamini 1955 (1) SA 120 (T) (on the requirement of an act); Sv Leeuw 1975 (1) SA 439 (0) (on the defence of impossibility); S v Patel 1959 (3) SA 121 (A) (on private defence); and S v Nkosiyana 1966 (4) SA 655 (A) (on incitement). It was sometimes difficult to decide which of the large number of cases dealing with criminal law should be included in this collection. In deciding upon cases I have given precedence to the more recent cases, as well as to judgments of the supreme court of appeal (previously known as the appellate division of the supreme court) and the Constitutional Court. However, these are not the only factors I have considered. Sometimes a case was included because the court not only gave judgment on an important point of law but also referred to and discussed certain important previous decisions; in reading such a judgment the student thus becomes acquainted with important earlier decisions on the subject. Owing to the composition of curricula for degrees many students have to tackle the study of criminal law fairly early in their legal studies, In many cases in their first year of Page x study. For the sake of these students especially, the cases in this book are preceded by a discussion of the significance of cases generally, how to read them, and an explanation of the meaning of certain terms which feature regularly in criminal cases and with which, at the beginning of his or her legal studies, the student may not yet be acquainted. An increasing number of students find it difficult or impossible to read judgments delivered in Afrikaans. To assist these students, the Afrikaans judgments are provided with English translations. The translations are my own, except in respect of judgments delivered between 1969 and 1980: during this period Juta & Co published English translations of Afrikaans judgments, and I have used these translations. CR Snyman February 2013Page ix Voorwoord Die doal van hierdie werk is om studente wat strafreg studeer te voorsien van ‘n versameling van die belangrikste hofuitsprake, of uittreksels daarvan, cor cie strafreg. Dit is nie bedoel om te dien as enigste of uitsluitlike bron vir die studie van die strafreg nie, maar moet beskou word as material aanvullend tot 'n handboek of ander volledige handleiding oor hierdie vakgebied. Dit is voorts bedoel vir gebruik deur studente in ‘n aanvangs- of eerste kursus in strafreg. In die keuse van die hoeveelheid uitsprake wat in hierdie bundel opgeneem is, asook in die omvang van die uittreksels wat opgeneem ek gelei deur die realistiese behoeftes van ‘n student in ‘n eerste kursus in strafreg, in ag genome die feit dat strafreg gewoonlik nie die enigste kursus is wat hy of sy studeer nie, maer slegs een van ‘n zantal kursusse wat hy of sy tegelykertyd neem. Hierdie vonnisbundel behoort bruikbaar te wees in sowel ‘n kursus waarin slegs die algemene beginsels van die strafreg behandel word as een waarin beide die algemene beginsels en die belangrikste besondere misdade behandel word. Die werk bevat 41 vitsprake wat oor die algemene beginsels handel. Ofskoon daar slegs sewe uitsprake ingesluit is wat regstreeks oor die besondere misdade handel, is daar onder die uitsprake wat oor die algemene beginsels handel ‘n aantal wat tecelykertyd ook die vereistes gestel vir sekere afsonderlike misdade toelig. So byvoorbeeld handel S v Masiya 2007 (2) SASV 435 (CC) en Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SASV 183 (SCA) 00k oor verkragting; Sv Sam 1980 (4) SA 289 (T) ook oor die wetteregtelike misdaad van die rig van 'n vuurwapen; en S v Mostert 2006 (1) SASV 560 (N) 00k oor crimen iniuria. Sv Mshumpa 2008 (1) SASV 126 (E) handel nie slegs cor moord en die legaliteitsbeginsel nie, maar ook oor ‘n hele aantal besondere misdade, soos roof, verydeling van die regspleging, die onwettige besit van vuurwapens en ammunisie, uitlokking en sameswering. Al die uitsprake wat oor corsaaklikheid en noodweer handel, asook die meeste beslissings wet oor toerekeningsvatbaarheid, skuld en deeineming handel, dek tegelykertyd ook die vereistes vir die misdade moord en strafbare mansiag. Juis omdat hierdie werk bedoel is om aanvullend tot ‘n handboek gebruik te word, word daar nie breedvoerig kommentear op die uitsprake gelewer nie, Die opmerkings wat aan ie einde van die uitsprake verskyn, het slegs ten doel om begrip van die uitsprake te vergemaklik, onduidelikhede uit die weg uit te ruim, of om die belang van ‘n uitspraak aan te dui. Ten einde studente wat andersins selde by ‘n regstiblioteek kan kom, in staat te stel om te sien hoe tipiese voorbeelde van gerapporteerde uitsprake lyk, is ‘n paar uitsprake wat redelik kort is, volledig — dit wil sé tesame met opskrif, kopstuk, ensovoorts — oorgedruk. Die uitsprake wat volledig oorgedruk is, is Rv Dhlamini 1955 (1) SA 120 (1) (oor die handelingsvereiste); 5 v Leeuw 1975 (1) SA 439 (0) (oor die verweer van onmoontikheid); Rv Pate! 1959 (3) SA 121 (A) (oor noodweer); en S v Nkosiyana 1966 (4) SA 655 (A) (ocr uitlokking) Dit was soms moeilik om te besluit watter uitspraak, uit die groot aantal wat oor die strafreg handel, in die bundel ingesluit behoort te word. In die keuse van uitsprake het ek eater voorkeur gegee aan meer onlangse uitsprake, asook uitsprake van die hoogste hof Page xi van appél (voorheen bekend as die appélafdeling van die hocggeregshof) en die Konstitusionele Hof. Dit was egter nie die enigste oorwegings wat ek in aanmerking geneem het nie. Soms is ‘n uitspraak ingesluit omdat die regter nie slegs cor ‘n belangrike regspunt uitspraak lewer nie, maer in die loop van sy ultspraak ook na belangrike vorige beslissings verwys en dit bespreek. Deur so ‘n uitspraak te lees neem die student tegelykertyd ook kennis van sekere belangrike vorige beslissings oor die betrokke onderwerp. Weens die samestelling van greadleerpianne moet baie studente strafreg redelik vroeg in hulle regstudie aanpak, in baie gevalle reeds in hulle eerste stuciejaar. Ter wille van veral hierdie studente word die beslissings in hierdie bundel voorafgegaan deur 'n verduideliking van die belang van sake, hoe om hulle te lees, en die betekenis van enkele uitdrukkings wat in strafsake voorkom en waarmee die beginnerstudent normaalweg nie vertroud is nie. Ter wille van studente wat nie Afrikaans mastig is nie, is die Afrikaanse uitsprake voorsien van Engelse vertalings. Die vertalings is my eie, behalwe in die gevalle van uitsprake gelewer tussen 1969 en 1980: gedurende hierdie jare het Juta en Kie Engelse vertalings van Afrikaanse uitsprake gepubliseer, en ek het van hierdie vertalings gebruik gemazk. CR Snyman Februarie 2013,Table of Contents/Inhoudsopgawe Preface \Voorwoord Reading cases: An introduction Die lees van sake: ‘n Inleiding Theories of punishment/Strafteorieé [1] Sv Zinn 1969 (2) SA 537 (A) Principle of legality/Legaliteitsbeginsel [2] Sv Masiya 2007 (2) SACR 435 (CC) [3] Director of Pubic Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA) Requirement of an act/Handelingsvereiste [4] Rv Dhlamini 1955 (1) SA 120 (T) [5] Sv Henry 1999 (1) SACR 13 (SCA) Omission/Late [6] Minister van Polisie v Ewels 1975 (3) SA 590 (A) /Onmoontlikheid [7] Sv Leeuw 1975 (1) SA 439 (0) Causation/Oorsaaklikheid [8] $v Daniéls 1983 (3) SA 275 (A) [9] Sv Mokgethi 1990 (1) SA 32 (A) [10] $v Tembani 2007 (1) SACR 355 (SCA) Unlawfulness general/Wederregtelikheid algemeen [11] $v Fourie 2001 (2) SACR 674 (C) Private defence/Noodweer [12] R v Patel 1959 (3) SA 121 (A) [13] Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA.488 (A) [14] Sv Mogohiwane 1982 (2) SA 587 (T) [15] $v Steyn 2010 (1) SACR 411 (SCA) Necessity/Noodtoestand [16] $v Goliath 1972 (3) SA 1 (A) [17] Maimeia and Another v Makhado Municipality and Another 2011 (2) SACR 339 (SCA) Obedience to orders/Gehoorsaamheid aan bevel [18] Sv Mostert 2006 (1) SACR 560 (N) — Intoxication/Dronkenskap [19] Sv Chretien 1981 (1) SA 1097 (A) Provocation/Provokasie [20] Sv Mnisi 2009 (2) SACR 227 (SCA) Criminal incapacity /Ontoerekeningsvatbaarheid [21] $v Eadie 2002 (1) SACR 663 (SCA) Culpability /Skuld [22] Sv Masilel2 1968 (2) SA 558 (A) [23] Sv Goosen 1989 (4) SA 1013 (A) [241 Sv Naubane 1985 (3) SA 677 (A)[16] Sv Goliath 1972 (3) SA 1 (A) [17] Maimeia and Another v Mekhado Municipality and Another 2011 (2) SACR 339 (SCA) Obedience to orders/Gehoorsaamheid aan bevel [18] $v Mostert 2006 (1) SACR 560 (N) Intoxication/Dronkenskap [19] Sv Chretien 1981 (1) SA 1097 (A) Provocation/Provokasie [20] $v Mnisi 2009 (2) SACR 227 (SCA) Criminal incapacity /Ontoerekeningsvatbaarheid [21] $v Eadie 2002 (1) SACR 663 (SCA) Culpability/Skuld [22] Sv Masilela 1968 (2) SA 558 (A) [23] $v Goosen 1989 (4) SA 1013 (A) [24] Sv Ngubane 1985 (3) SA677 (A) [25] Sv Mtshiza 1970 (3) SA 747 (A) [26] $v Sam 1980 (4) SA 289 (T) [27] Sv Ntuli 1975 (1) SA 429 (A) [28] $v De Blom 1977 (3) SA 513 (A) [29] Sv De Oliveira 1993 (2) SACR 59 (A) [30] Sv Lungile 1999 (2) SACR 597 (A) Liability of corporate bodies/Aanspreeklikheid van regspersone [31] $v SA Metal & Machinery Co (Pty) Ltd 2010 (2) SACR 413 (SCA) Participation/Deelneming [32] Sv Wiliams 1980 (1) SA 60 (A) [33] Sv Safatsa 1988 (1) SA 858 (A) [34] Sv Motaung 1990 (4) SA 485 (A) [35] Sv Thebus 2003 (2) SACR 319 (CC) [36] Sv Molini 2006 (2) SACR 8 (SCA) Accessory after the fact/Begunstiging [37] $v Jonathan 1987 (1) SA 633 (A) Attempt/Poging [38] Rv Hlatwayo 1933 TPD 441 [39] Rv Schoombie 1945 AD 541 [40] Rv Davies 1956 (3) SA 52 (A) Incitement/Uitlokking [41] Sv Nkosiyana 1966 (4) SA 655 (A) Assault/Aanranding [42] Sv A 1993 (1) SACR 600 (A) Theft/Diefstal [43] _ R v Siblya 1955 (4) SA 247 (A) [44] $v Nkosi 2012 (1) SACR 87 (GNP) [45] Sv Ndebele and Others 2012 (1) SACR 245 (GSI) Robbery/Roof [46] Ex parte Minister of Justice: in re R v Gesa; R v De Jongh 1959 (1) SA 234 (A) Page vii Fraud/Bedrog [47] Sv Gardener and Another 2011 (1) SACR 570 (SCA) Murder/Moord [48] Sv Msinumpa 2008 (1) SACR 126 (E)Page xii Reading cases: An introduction Students who do not yet have experience in reading cases may initially encounter difficulties in understanding certain aspects of a judgment or certain expressions regularly used in judgments. The purpose of the discussion which follows is to explain, for the benefit of these students, such aspects or the meanings of such terms. The words cases, decisions and judgments are usually used as synonyms. In everyday speech the word case is used most often, and in the discussion which follows this word will mostly be used. The significance of cases Why is a knowledge of case law so important in the study of criminal law? The reason is simple: South Africen criminal law is uncodified, This means that there Is no statute defining ell the different crimes or the general concepts relating to criminal liability (such as intention, negligence, private defence, attempt and complicity). Although numerous crimes are created and described in statutes, those best known, such as murder, assault, robbery and theft, are not statutorily defined. In order to know what these crimes entail one must consult the common law, that is, those rules not contained in statutes, although they apply with equal legal force. The rules of common law are to be found in the first place in the discussions and opinions of the authors on Roman-Dutch law. In the course of time, however, these rules have been incorporated into the Judgments of our courts, The result is that the judgments of the courts — in other words, the cases — have become the most important source of the rules of criminal law. Cases are also important because of the system of precedent (also known as the stare decisis principle) which applies in our law: according to this system a court with a rank not higher than that of the court delivering the judgment is in principle bound by the interpretation of the law in that judgment. Cases and references thereto The South African courts are divided into three groups, namely the magistrates’ courts (or lower courts), presided over by magistrates, the high courts (previously called supreme courts), presided over by judges, and the Constitutional Court, also presided over by judges. Regional courts form part of magistrates’ courts. Decisions of the magistrates’ courts are not reported. ‘Reported’ means ‘printed in the law reports’. It is impossible to report every judgment delivered in the high court. Only a small fraction of the thousands of judgments delivered annually in the high courts are reported. The ceses reported are usually cases in which a legal issue has been decided for the first time, or cases which would be of value to courts in the future because they serve as precedents. The most important set of law reports in South Africa is known as the South African Law Reports. This series was begun in 1947. Until 2001 four volumes of these law reports were published annually, but since 2002, because of the increase in reportable judgments, six volumes are published per year. If a case's reference is ‘S v Zinn 1969 (2) SA 537 (A)' it means that the judgment in this case, in vihich the state (which prosecutes) acted against Zinn (the surname of the person accused of having committed a crime), is published in the second volume of the South African Law Reports of 1959 on page 537. The word ‘State’ is usually abbreviated as ‘S’. The capital letter appearing in brackets at the end of the reference indicates the division of the high or supreme court which heard the case. The Page xiv reference of a case means the date, numbers and letters appearing immediately after the name of the case (S v Zinn). The high court of South Africa Is divided into different divisions. The country Is divided geographically into different divisions and, apart from these divisions, there is a supreme court of appeal (previously known as the ‘appellate division of the supreme court’ or simply the ‘appeal court’). If the last letter in the reference (the one in brackets) is, an ‘A’ (as in the reference given above), It means that the judgment was one of the appellate division. If the last letters are ‘SCA, it means that it is a judgment of the supreme court of appeal. If this last letter is aT’, it means that the judgment was one of the Transvaal provincial division. 'N' stands for ‘Natal provincial division’, ‘C’ stands for ‘Cape provincial division, etc. “CC’ Is the abbreviation of ‘Constitutional Court’. The Renaming of High Courts Act 30 of 2008 resulted in the renaming of the high courts. The new names of the courts and their abbreviations are the following. The abrogated court names and their abbreviations are given in brackets. ‘Name of court Abbreviation Easter Cape High Courts Bisho (Ciskel High Court) ECB (ck) Eastem Cape High Court, Grahamstown (Eastern Cape Provincial Division) Ec (&) Easter Cape High Court, Mthatha (Transkei High Court) ECM (Tk) Eastem Cape High Court, Port Elizabeth (South Eastern Cape Local Division) ECP (SE)Eastem Cape High Court, Port Elizabeth (South Eastern Cape Local Division) ECP (SE) Free State High Court, Bloemfontein (Orange Free State Provincial Division) FB (0) KwaZulu-Natal High Court, Durban (Durban and Coast Local Division) kz0 (0) KwaZulu-Natal High Court, Pietermaritzburg (Natal Provincial Division) KzP (N) Limpopo High Court, Thehoyandou (Venda High Court) uM North Gauteng High Court, Pretoria (Transvaal Provincial Division) GNP (7) North West High Court, Mafikeng (Bophuthatswana High Court) wm (8) Northern Cape High Court, Kimberley (Northern Cape Provincial Division) Nek (NC) South Gauteng High Court, Johannesburg {Witwatersrand Local Division) Gs (Ww) Westem Cape High Court, Cape Town (Cape Provincial Division) wec (c) Students should learn at the outset of their legal studies to refer to cases in the correct way, for example in an assignment. If the reference is to a case appearing in the South African Law Reports, five points of information must be given: first the year, secondly the volume number, thirdly the letters ‘SA’ (in capitals) to indicate that the reference is to the South African Law Reports, fourthly the number of the page on which the judgment begins, and fifthly, in brackets, the capital letter serving as abbreviation for the division of Page xvi the supreme or high court in which the judgment was delivered. It is also important that these five points of information appear in the correct sequence. A reference such as '1969 (2) SA 537 (A)' is therefore correct. References such as the following are incorrect or at least incomplete: '1969 (2) 537"; '1969 SA 537’ or '1969 (2) (A) 537’. Incidentally: it is unnecessary for students to memorise the references of cases for the examination. It is unnecessary to give the references of cases in the examination. Knowledge of the law does not include knowledge of the page numbers or volume numbers of books. It is, however, useful to know which court — the high court, the supreme court of appeal, or the Constitutional Court delivered the judgment. If, in the discussion of case law in legal literature, a case reference is immediately (that is after the letter identifying the court) followed by another number, this number refers to a particular page of the reported judgment. Thus, if a writer refers, for example, to Sv Zinn 1969 (2) SA 537 (A) 540, it means that he does not necessarily refer to the whole of the reported judgment (which covers pages 537 to 542), but draws the reader's attention to a certain page of the judgment only, namely page 540. Since 1990 there has been a separate series of law reports devoted exclusively to criminal matters. This is known as the South African Criminal Law Reports (abbreviated 2s SACR, or SASV in Afrikaans for Suid-Afrikaanse Strafregverslae). Since 1990 all the reportable judgments dealing with criminal law have been printed in this series of law reports, Parties to a case There are two parties in criminal cases, namely the state (which prosecutes) and the accused. If the crime has a victim, he or she is known as the ‘complainant’, (In cases of murder or culpable homicide the victim is, of course, referred to as ‘the deceased: In civil cases (that is, cases in which the state does not charge somebody with a crime, but one party institutes an action against another in terms of the rules of private law for the payment of damaces, for example) the parties are called the plaintiff and the defendant. Decisions in civil cases may sometimes be of importance for the purposes of criminal law as well. An example of such a case, included in this collection, is Minister van Polisie v Ewels 1975 (3) SA 590 (A). Appeals In order to facilitate the reading of cases for beginner students, it is necessary to say something about appeals. Depending upon the seriousness of the crime, an accused is charged in either the magistrate’s or the high court. Less serious crimes are heard in the magistrate’s court, and the more serious crimes in the high court. If an accused is convicted, he or she may decide to appeal against his or her conviction or sentence. If the accused has been convicted in a magistrate’s court, he or she must appeal to the provincal division of the high court. If the accused was charged for the first time in a provineial or local division of the high court, and convicted, he or she may possibly appeal to the supreme court of appeal (previously ‘the appellate division of the supreme court’). Under certain circumstances an accused may likewise appeal to the supreme court of appeal if he or she was tried and convicted in a magistrate’s court and his or her appeal to the provincial division was unsuccessful. In certain narrowly defined circumstances the state also has a right to appeal toa higher court against a judgment in the accused's, favour. If a case serves on appeal, the following terminology is used: The party who appeals (that is, the party who is dissatisfied with the result of the trial in the lower court and wishes the result to be set aside by the higher court) is known as the appellant. The other party (that is, the party in whose favour the lower court has decided) is known as the respondent. The court in which the accused was charged for the first time, and whichtherefore heard the evidence, is known as “the court a quo’ or ‘the trial court’ or sometimes the court of first instance. There is another way in which a provincial division of the high court may reconsider the correctness of a decision of a magistrate’s court, namely if the case serves before the high court on review. If a magistrate imposes a sentence above a certain limit, the case is subject to automatic review by the high court. Pre-1961 cases Before South Africa became a republic in 1961, prosecutions were instituted not in the name of the State, but in the name of the king or queen of England. The reason for this was that according to the constitutional law then in force, the king or queen of England was the head of state also of South Africa. The names of criminal cases heard before 1961 are therefore not“S v.. - (‘the state versus . . ), but ‘RY. ..”°R’Is the abbreviation for ‘Rex’ (king) or ‘Regina’ (queen). In pre-1961 cases the prosecution was referred to not as ‘the state’, but asthe crown’, and witnesses for the prosecution, not as 'state witnesses’, but as ‘crown witnesses’ Cases quoted in full As in almost all case books, the judgments in this case book are not printed in full, that is, from the beginning of the judgment to the end. If all the cases were printed in full, the case book would be too long (and expensive). Only those portions of the judgments are quoted in which the judge discusses or applies the rules of criminal law. Thus, sections of a judgment dealing with, for example, the credibility of witnesses or procedural matters, are omitted. However, to enable students to see a complete judgment as printed in the law reports, a small number of cases that are not too long are printed in full, that is, including the title, details of the court, the judge(s), the date of the hearing, the headnote and the judgment itselt. Details of the cases printed in full appear in the preface above. when turning to the case of R v Patel 1959 (3) SA 121 (A), for example, which is the first case printed in this book dealing with private defence, the reader will see @ complete judgment as printed in the law reports. First, there is the name of the case. Sometimes the editor of the law reports decides not to print the accused’s full surname, but to abbreviate It by using only the first letter of the surname. The name of the case is then only 'S v for example. This may happen if the editor is of the opinion that it is undesirable to mention an accused's full surname, for example because he or she Is still very young or because he or she has been charged with a sexual offence. Headnote and other information The nome of the case is followed by a designation of the court which gave judgment, the date(s) on which the case was heard, and the composition of the court, in other words the name(s) of the judge(s) who heard the case. This is followed by an indication in telegraphic style of the subjects canvassed by the judgment. Then follows a summary or abstract of the legal issue decided in the case. Sometimes an abstract of the facts in the case is also given. These abstracts or summaries are known as the ‘headnote’ of the case. This is followed by the names of the advocates who appeared for the different parties. Thereafter the Latin words cur adv vult appear. In order to understand what these words mean, it is necessary first to explain the following: Sometimes a judge decides to deliver his judgment immediately after hearing the arguments of the advocates. Sometimes he or she decides not to deliver judgment immediately, but first to consider the merits of the case and then to give his or her judgment. The court may decide to do this if there are reasonably difficult legal issues involved, or if it is necessary first to consult certain legal sources. The court is then said to ‘reserve judgment’ (it must be remembered that in the Page xx two previous sentences ‘the court’ means ‘the judge") The words cur adv vult are abbreviations for the Latin curia advisari vult, which, freely translated, mean the court reserved judgment. (The words literally mean the court wishes to consider, that is, to take time for consideration.) If the court has reserved judgment, the three Latin words mentioned above are followed by the Latin word postea, together with a date. Postea means thereafter, and the date is the date on which the judament is delivered. (While dealing with Latin words, the attention of students who are still at the beginning of their legal studies is drawn to the meaning of the words supra and infra which sometimes appear after the names of cases: supra means above and infra below.) Judgment and order The judgment is preceded by the identification of the judge who delivers the judgment. After the surname of the judge, letters such as J, R or JA appear. These letters are not (as some junior students tend to think) the judge's initials, but are a description of the judge's rank. The following abbrevietions for the following judges are used: 3 - judge R regter a = acting judge WR : waaremende reater ® = judge presidentRe - reater-president DIP - ‘eputy judge president ARP = adjuni-regter-president aK : judge of appeal AR = appelreater WA - acting judge of appeal Wn aR - waarnemende appeiregter P - presi¢ent ° chief justice HR hoofreater acd = acting chief justice Wo HR = waarnemende hoofrester (Since 2002 the chief justice of the Republic of South Africa is no longer the senior judge in the supreme court of appeal, but the senior judge of the Constitutional Court. From this date the senior judge in the supreme court of appeal is known as the President of that court.) Then follows the judgment itself. If the accused is charged in a provincial or local division of the high court and the trial takes place in that division, the case Is heard by one Judge with or without assessors. Appeals trom the magistrate’s court to the provincial division of the high court are heard by two (or occasionally three) judges. If there is no difference of opinion between the two judges, one judge usually delivers the judgment and the second judge merely states that he agrees with the first judge. Page xxil Appeals in criminal cases to the supreme court of appeal are heard by either three or five judges of appeal. If all the judges do not agree, one simply looks at how many judges come to a certain conclusion and how many come to the opposite conclusion. If the appeal is heard by five judges of appeal and at least three come to the same conclusion, this decision is the ‘decision of the court’. The judgments of these three judges then form the majority opinion of the court; the judgments of the judges who differ from this view are described as ‘minority judgments’ If the court hearing the appeal comes to the conclusion that the court which previously decided on the case has come to the wrong conclusion, it orders the appeal to be upheld. This means that the appeal succeeds and that the order issued in the previous court is set aside and, if need be, replaced by an order issued by the court hearing the appeal. On the other hang, if the court hearing the appeal is of the opinion that the conclusion reached by the previous court is correct, the appeal is ‘dismissed’. This means that the conclusion reached by the previous court prevails. The names of the instructing attorneys (if there are any) appear at the end of the judgment. Ratio decidendi and obiter dicta Uniess a lecturer gives instructions to the contrary, students need not study cases as thoroughly as they would study a textbook. Usually, it is sufficient for the student merely to acquaint him- or herself with an outline of the facts in the case, the legal point the court had to decide, what the court in fact decided, and the reasons for the decision. As far as the reasons for the decision are concerned, it is necessary to distinguish between the ratio decidendi of a decision and an obiter dictum (plural obiter dicta). The term ratio decidendi literally means ‘the reason for the decision’, but it would be better to understand this expression to mean ‘the principle or rule upon which the court relied as a reason for coming to its decision’. The term obiter dicta literally means ‘passing remarks’. In reality, these words refer to all the statements in the judgment which do not serve as reasons for the conclusion reached by the court. If, for example, the judge merely compares the rule on which he or she relies for his or her conclusion with another rule, the discussion of the latter rule amounts to obiter dicta. A decision concerning merely the facts of the case can never form part of the ratio decidendi. (This is one of the reasons why the extracts from the judgments included in this casebook deal mainly with the legal, as opposed to the factual issues which the court had to decide.) The importance of distinguishing between the ratio decidend/ and obiter dicta is the following: According to the rules of stare decisis (the principle of precedent) a court is bound in principle by the ratio decidendi of an earlier decision of the same or higher court, but not by an obiter dictum of such a court. However, obiter dicta are not completely without value: they may have “persuasive force’ in future cases. This means that although courts will not be bound by them in future cases, they will allow themselves to be influenced by the reasoning in such a pert of the judgment. Portions of judgment on which to concentrate Uniess the judgment is reasonably short, lawyers normally dois no difference of opinion between the two judges, one judge usually delivers the judgment and the second judge merely states that he agrees with the first judge. Page xxl Appeals in criminal cases to the supreme court of appeal are heard by either three or five judges of appeal. If all the judges do not agree, one simply looks at how many judges come to a certain conclusion and how many come to the opposite conclusion. If the appeal is heard by five judges of appeal and at least three come to the same conclusion, this decision is the ‘decision of the court’. The judgments of these three judges then form the majority opinion of the court; the judgments of the judges who differ from this view are described as ‘minority judgments’ If the court hearing the appeal comes to the conclusion that the court which previously decided on the case has come to the wrong conclusion, it orders the appeal to be upheld. This means that the appeal succeeds and that the order issued in the previous court is set aside and, if need be, replaced by an order issued by the court hearing the appeal. On the other hand, if the court hearing the appeal is of the opinion that the conclusion reached by the previous court is correct, the appeal is ‘dismissed’. This means that the conclusion reached by the previous court prevails. The names of the instructing attorneys (if there are any) appear at the end of the judgment. Ratio decidendi and obiter dicta Unless a lecturer gives instructions to the contrary, students need not study cases as thoroughly as they would study a textbook. Usually, itis sufficient for the student merely to acquaint him- or herself with an outline of the facts in the case, the legal point the court had to decide, what the court in fact decided, and the reasons for the decision. As far as the reasons for the decision are concerned, it is necessary to distinguish between the ratio decidendi of a decision and an obiter dictum (plural obiter dicta). The term ratio decidendi literally means “the reason for the decision’, but it would be better to understand this expression to mean ‘the principle or rule upon which the court relied as a reason for coming to its decision’. The term obiter dicta literally means ‘passing remarks’. In reality, these words refer to all the statements in the judgment which do not serve as reasons for the conclusion reached by the court. If, for example, the judge merely compares the rule on which he or she relies for his or her conclusion with, another rule, the discussion of the latter rule amounts to obiter dicta. A decision concerning merely the facts of the case can never form part of the ratio decidendi. (This is one of the reasons why the extracts from the judgments included in this casebook deal mainly with the legal, as opposed to the factual issues which the court had to decide.) The importance of distinguishing between the ratio decidendi and obiter dicta is the following: According to the rules of stare decisis (the principle of precedent) a court is bound in principle by the ratio decidendi of an earlier decision of the same or higher court, but not by an obiter dictum of such a court. However, obiter dicta are not completely without value: they may have ‘persuasive force’ in future cases. This means that although courts will not be bound by them in future cases, they will allow themselves to be influenced by the reasoning in such a pert of the judgment. Portions of judgment on which to concentrate Uniess the judgment is reasonably short, lawyers normally do not read the whole case from beginning to end. Often, a substantial part of the judgment is taken up by an exposition and analysis of the facts of the case. Since the facts of each case differ from those of other cases, and since, as Pointed out above, a factual finding never forms part of the ratio decidendi, a court's discussion of the facts (which may include a discussion of the credibility of certain witnesses) is normally only of direct importance for the purposes of that particular case. Page xiv Furthermore, a court often has to decide more than one legal issue. After an analysis of the facts, the judgment may be devoted, for instance, first to an evidential or procedural matter such as the question whether an admission or confession made by the accused to a police official is admissible as evidence in terms of the law of evidence. Sometody studying the rules of the law of evidence will normally be interested only in this part of the judgment and will either ignore the rest of the judgment or read it only superficially. Thereafter the judgment may deal with a matter relating to substantive criminal law, such as the question whether the accused's act was legally the cause of the victim's death. Normally, a person who wishes to acquaint him- or herself merely with the rules of substantive criminal law will ignore those portions of the judgment dealing with the admissibility of ¢ confession and concentrate merely on the latter discussion dealing with causation. The art of reading cases comprises the ability to identity as quickly as possible thet part of the judgment devoted to the legal issue which the reader is in the process of studying, A busy legal practitioner or a student whose time is valuable usually does not have time to read the large number of cases he or she is expected to consult from beginning to end, concentrating equally on all the different factual and legal issues canvassed in the judgment. In this case book the student does not have to select the portions of the judgments which are of importance for his or her studies: in order to save space and money, only those portions of the judgments dealing with substantive criminal law have been included in this case book.Page 1 Theories of punishment/Strafteorieé [1] Sv Zinn 1969 (2) SA 537 (A) The appellant was convicted on 14 counts of fraud and 221 counts of theft, resulting from dishonest acts committed by him in his capacity as a director of a company. He was 58 years of age and his health was weak, The trial judge imposed a sentence of 15 years’ imprisonment. He appealed to the appellate civision against the sentence. It was argued on his behalf inter alia that in imposing the sentence the trial judge had Die appellant is skuldig bevind aan 14 klagtes van bedrog en 221 klaates van diefstal voortspruitende uit oneerlike handelinge deur hom verrig in sy hoedahigheid as ‘n direkteur van ‘n maatskappy. Hy was 58 jaar oud en in swak gesondheid. Die regter wat sy saak verhoor het, het hom ‘n vonnis van 15 jaar gevangenisstraf opgelé. Hy het na die appélafdeling Geappelleer teen die vonnis. Daar Is namens hom overestimated the effects of the crime and underestimated the appellant's personal circumstances. onder meer betoog dat die verhoorregter by die oplegging van die vonnis te veel klem gelé het op die gevolge van die misdaad en die appellant se persoonlike omstandighede nie behoorlik na waarde gesket het nie. RUMPFF JA [540] it then becomes the task of this Court to impose the sentence which it thinks suitable in the circumstances. What has to be considered is the triad consisting of the crime, the offender and the interests of society, The learned judge-president in the Court below, at the request of counsel for the appellant, regarded all the crimes committed by the appellant as one course of conduct for purposes of sentence. Although the concept of one course of conduct is really only valid in respect of the frauds committed, I shall adopt the same approach. There can be no doubt that in this case the large amounts involved and the persistent falsification of balance sheets and bills for so long a period and the incurring of vast debts knowing that the company was insolvent call for a very heavy sentence. [541] Appellant's age undoubtedly requires consideration. He is 58 years old and, as has been submitted, a very long period of imprisonment, particularly if regard be had to his physical condition, would probably not offer him the opportunity to reform and begin life anew. It has also been submitted that the purpose of punishment, in a case like the present, should not be to destroy the offender completely. As regards the duties of a Judge in imposing punishment, we have been referred, inter alia, to Voet, vol 1, p57, where, in a note, it is said (Gane’s translation, vol 2, p 72): “Itis true, as Cicero says in his work on Duties, Bk 1, Ch 25, that anger should be especially kept down in punishing, because he who comes to punishment in wrath will never hold that middle course which ies between the too much and the too litte, Itis also true that it would be desirable thet they who hold the office of Tudges should be like the laws, which approach punishment nat in a spirit of anger but in one of equity.” Inthe same note, also, itis stated that: “among the faults of Judges which are most harmful are hastiness, the striving after severity and misplaced pity’ Page 2 The same author, at XLVIII, 19, 4, comments on the duty of a Judge as follows: he must be watchful to see that no step is taken either more harshly or more indulgently than is called for by the case” and “in trivial cases indeed Judges oucht to be more incined to mrildness, but in more serious cases te follow the severity ofthe laws with a certain moderation of generosity’ (Gane’s trans, vol 7, p 504) « [542] Having regard to his age and the fact that he deliberately committed fraud over a period of nearly eight years, involving large sums of money, the appellant's claim to a sentence which would give him the opportunity to reform and to start life afresh is necessarily greatly weakened The appellant's physical condition is certainly a matter which must be considered because it will make imprisonment considerably more disagreeable to him than to a healthy man of his age. There is nevertheless the factthe present, should not be to destroy the offender completely. As regards the duties of a Judge in imposing punishment, we have been referred, inter alia, to Voet, vol 1, p57, where, in a note, itis said (Gane’s translation, vol 2, p 72): “Itis true, as Cicero says in his work on Duties, Bk 1, Ch 25, that anger should be especially kept down in punishing, because he who comes to punishment in wrath will never hold that middle course which lies between the too much and the too litle. Its also true that it would be desirable thet they who hold the office of Judges should be like the laws, which approach punishment nat in a spirit of anger but in one of equity: Inthe same note, also, itis stated that: “among the faults of Judges which are most harmful are hastiness, the striving after severity and misplaced pity’. Page 2 The same author, at XLVIII, 19, 4, comments on the duty of a Judge as follows: he must be watchful to see that no step is taken either more harshly or more indulgently then is called for by the case" and “in trivial cases indeed Judges ought to be more inclined to mildness, but in more serious cases to follow the severity of the laws with a certain moderation of generosity’ (Gane’s trans, vol 7, p 504) « [542] Having regard to his age and the fact that he deliberately committed fraud over a period of nearly eight years, involving large sums of money, the appellant's claim to a sentence which would give him the opportunity to reform and to start life afresh is necessarily greatly weakened. The appeliant’s physical condition is certainly a matter which must be considered because it will make imprisonment considerably more disagreeable to him than to a healthy man of his age. There is nevertheless the fact that in gaol the appellant will be under constant medical supervision and there is the possibility that his release from business problems may actually benefit his condition, It is to be noted in this connection that the appellant consulted his specialist physician for the first time in 1966, ie when his company had collapsed. The interests of society, in my opinion, demand that a man like the appellant must be put away for a long time, not only to protect society against a man who has no conscience in respect of people who lend him money or to whom he owes money, but also as punishment for crimes committed over an extended period and as a warning to businessmen who might fee! inclined to abuse the confidence that must necessarily exist in a civilised state in the field of business and industry, particularly when substantial credit is required and when the credit is given on the strength of accounts that carry signed audit certificates: Had the appellant been ten years younger and in good health, I would have been of the opinion that the facts of the present case justified a sentence of 15 years’ imprisonment. Having regard to appellant's age and his illness, I consider that justice will be done if the sentence Is 12 years’ imprisonment. For the reasons stated, the sentence imposed by the learned judge-president is set aside, and, in substitution thereof, a sentence of 12 years’ imprisonment is imposed. Steyn C) and Ogilvie Thompson JA concurred. Note Aantekening ‘The second sentence in the portion of the judament quoted above is of the utmost importance, since here the court set out tersely the three most important matters a court should take into consideration in imposing sentence. In this case the court had to weigh the accused's personal circumstances (and more particularly the fact that he was already relatively old and suffering ill-health) against the nature of the crime and the Interests of society. The appellant's personal circumstances constitute Page 3 mitigating circumstances, whereas the nature of the crime and the interests of society amount to aggravating circumstances. Die tweede sin in die aangehaalde gedeelte van die uitspraak is van die grootste belang, omdat die hof hier die drie belangrikste oorwegings wat ‘n hof in aanmerking moet neem by die oplegging van ‘n vonnis, kernagtig uiteengesit het. Die hof moes in hierdie ultspraak die individuele oortreder se persoonlike omstandighede (en meer bepaald die feit dat hy reeds redelik oud en ook siekiik was) opweeg teen die aard van die misdaad en die belange van die samelewina. Die appellant se persoonlike omstandighede is ‘n strafversagtende omstandigheid; die aard van die misdaad en die belange van die samelewing, daarenteen, is strafverswarende faktore.Principle of legality/Legaliteitsbeginsel [2] Sv Masiya 2007 (2) SACR 435 (CC) ‘The accused was charged in a regional court with rape, in that, on a certain day in 2004, he had sexual intercourse with the complainant, then a nine-year-old girl. On the day the act was committed, the legislation creating anew statutory crime of rape (Act 32 of 2007) had not yet existed. The accused was charged with common-law rape. The evidence brought to light that the accused had not inserted his penis into the complainant's vagina, but into her anus. The state argues that the accused had to be convicted of the common-law crime of indecent assault, because, in terms of the rules of common law then applicable, such conduct did not qualify as rape, Dut only as indecent assault. At that time the common-law crime of rape could be committed only if an accused had sexually penetrated the complainant's vagina In a surprising move, however, the regional court magistrate held that the common-law definition of rape Wes unconstitutional, inasmuch as sexual penetration of the complainant's anus was not punishable as rape, but oniy as indecent assault. The magistrate argued that indecent assault was a less serious crime then rape, and that a conviction of a less serious crime discriminated against the complainant, since there were no rational grounds upon which non-consensual Penetration of a women’s anus instead of her vagina should be regarded, not as rape, but only as indecent assault. The magistrate also Page 4 held that a magistrate’s court has the power to consider the constitutionality of a rule of the common law and, if necessary, to change it. The magistrate accordingly convicted the accused of rape. The Criminal Law Amendment Act 105 of 1997 provides that the magistrate does not have the power to impose punishment in such a serious matter as the present one, and that the case had to be referred to the high court for the purposes of the imposition of Punishment. This was done. The high court confirmed the decision of the magistrate’s court, but the imposition of punishment was postponed until the Constitutional Court had confirmed the change in the definition of the common-law crime of rape. (The judgment of the high court has been reported as S v Masiya (Minister of Justice and Constitutional Die beskuldigde is in ‘n streekhof van verkragting aangekla, deurdat hy op ‘n sekere dag in 2004 geslagsgemeenskap met die klaagster, toe ‘n egejarige meisie, gehad het. Op die datum waarop, die handeling plaasgevind het, het die nuwe wetgewing waarin 'n nuwe statutére misdaad van verkragting geskep word (Wet 32 van 2007) nog nie bestaan nie. Die beskuldigde is van die gemeenregtelike misdaad verkragting aangekla. Die getulenis het aan die lig gebring dat die beskuldigde sy penis nie in die kiaagster se vagina nie, maar in haar anus gedruk het. Die staat het aangevoer dat die beskuldigde aan die gemeenregtelike misdaad onsedelike aanranding skuldig bevind moet word, want volgens die reéls van die gemene reg wat toe gegeld het, is hierdie handeling nie as verkragting nie, maar as onsedelike aanranding beskou. Die gemeenregtelike misdaad verkragting kon destyds slegs gepleeg word as ‘n Dekuldigde die klaagster deur haar vagina seksueel gepenetreer het In 'n verrassende wending het die streekhoflanddros egter besiis dat die gemeenregtelike omskrywing van verkragting ongrondwetlik is omdat seksucle penetrasie van die klaagster se anus nie as verkragting strafbaar is nie maar slegs as onsedelike aanranding. Die landdros het geargumenteer dat onsedelike aanranding ‘n minder ernstige misdaad as verkraating was, en dat so ‘n skuldigbevinding aan ‘n minder emstige misdaad teenoor die klaagster gediskrimineer het, omdat daar geen rasionele cronde bestaan waarom die nie-konsensuele seksuele penetrasie van ‘n vrou se anus nie ook, soos sodanige penetrasie van haar vagina, as verkragting beskou moet word nie. Die landdros het ook beslis dat die landdroshof bevoea is ‘om die grondwetlikheid van ‘n reél van die gemene reg te oorweeg, en indien nodig, te verander. Die landdros het die beskuldiade gevolalik aan verkraating skuldig bevind. Die Strafregwysigingswet 105 van 1997 bepaal dat die landdros weens die ems van die saak nie self die straf kon oplé nie en dat ’n saak soos hierdie vir die doeleindes van strafoplegging na die hoé hof verwys moes word. Dit is gedoen. Die hoé hof het, in ’n ewe verrassende uitspraak, die landdros se uitspraak bevestig, maar die oplegging van straf uitgestel totdatDevelopment Intervening) 2006 (2) SACR 357 (T)).. die Konstitusionele Hof die verandering van die The Constitutional Court therefore had to decide omskrywing van die gemeenregtelike misdaad whether the magistrate’s court and high court had verkragting bevestig het. (Die uitspraak van die hoé acted correctly in broadening the definition of the hof is gerapporteer as Sv Masiya (Minister of Justice common-law crime of rape on the ground that the old and Constitutional Development Intervening) 2006 (2) definition had been unconstitutional. SASV 357 (T)). Die Konstitusionele Hof moes derhalwe beslis of die landdroshof en hoé hof korrek was deur die omskrywing van die gemeenregtelike misdaad verkragting uit te brei op grond daarvan dat die omskrywing ongrondwetlik sou wees. Nkabinde J: Issues [19] The primary questions to be considered relate to (2) Whether the current definition of rape is inconsistent with the Constitution and whether the definition needs to be developed; (b) whether Mr Masiya is liable to be convicted in terms of the developed definition; (©) whether the deciaration of invalidity of the relevant statutory provisions should be confirmed; (d) whether the merits of the criminal conviction should be dealt with by this Court; and Page S (e) appropriate relief. The current law of rape [26] In our law, rape is understood as the non-consensual penetration of a vagina by a penis. The generally accepted definition of rape, according to Heath J in Ncanywa, ('1 is ‘the (a) intentional (b) unlawful (c) sexual intercourse with a woman (d) without her consent’, Heath J remarked that "(t)he element of uniawfulness is based essentially on the absence of consent’, (2) The four elements in the definition of rape were echoed by Van der Merwe J in Sv Zuma, (2) in which the absence of mens rea was relevant. (+) Burchell and Milton state that the definition of rape is ‘the intentional unlawful sexual intercourse with 2 woman without her consent. 1 Snyman prefers this definition: ‘Rape consists in a male having unlawful and intentional sexual intercourse with a female without her consent.’ «: Both share an understanding of ‘sexual intercourse’ as the ‘penetration of the wornan’s vagina by the male penis’. [27] The definitions presuppose non-consensual sexual penetration of a vagina by a penis. The definition of rape is not unconstitutional insofer as it criminalises conduct that is clearly morally and socially unacceptable. In this regard it is different from the common law crime of sodomy which was declared unconstitutional by this Court (s) because it subjected people to criminal penalties for conduct which could not constitute a crime in our constitutional order. There is nothing in the current definition of rape to suggest that it is fatally flawed in a similar manner. The current definition of rape criminalises unacceptable social conduct that is in violation of constitutional rights. It ensures that the constitutional right to be free from all forms of violence, whether public or private, as well as the right to dignity and equality are protected. Invalidating the definition because it is under-inclusive is to throw the baby out with the bath water. What is required then is for the definition to be extended instead of being eliminated so as to promote the spirit, purport and objects of the Bill of Rights. [29] The facts of the present case deal with penetration of the anus of a young girl. The issue before us then is whether the current definition of rape needs to be developed to include anal penetration within its scope. The facts do ‘not require us to consider whether or not the definition should be extended to include non-consensual penetration of the male anus by a penis. Strong arguments were presented to us ta the effect that gender-specificity in relation to rape reflected patriarchal stereotypes inconsistent with the Constitution. This Page 6 Court (») has stressed that it is not desirable that a case should be dealt with on the basis of what the facts might be rather than what they are. [30] It can hardly be said that non-consensual anal penetration of males is less degrading, humiliating and traumatic and, to borrow the phrase by Brownmiller, ‘a lesser violation of the personal private inner space, a lesser injury to mind, spirit and sense of self’. (1«) That this is so does not mean that it is unconstitutional to have a definition of rape which is gender-specific. Focusing on anal penetration of females should not be seen as being disrespectful tone male bodily integrity or insensitive to the trauma suffered by male victims of anal violation, especially boys of the age of the complainant in this case. Extending the definition to include non-consensual penetration of the anus of the male by a penis may need to be done in @ case where the facts require such a development. It needs to be said that it is not constitutionally impermissible to develop the common law of rape in this incremental way. This Court has stated that in a constitutional democracy such as ours the Legislature and not the Courts has the major responsibility for law reform and the delicate belance between Courts’ functions and powers on the one hend and those of the Legislature on the other should be recognised and respected. (11) The terrains of the courts and Legislature, Chaskalson P said in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others, (:2| should be kept separate even though they may overlap. The issue of male rape is therefore a matter that will no doubt be dealt with in an appropriate fashion either by the Legisiature or the Courts when the circumstances make it appropriate and necessary to do so. [31] The constitutional role of the Courts in the development of the common law must be distinguished from their other role in considering whether legislative provisions are consistent with the Constitution. ':*) The latter role is one of checks and balances on the power provided for in our Constitution, whereby courts are empowered to ensure that legislative provisions are constitutionally compliant. The development of the common law on the other hand is a power that has always vested in our Courts. It is exercised in an incremental fashion as the facts of each case require. This incremental manner has not changed, but the Constitution in s 39(2) provides a paramount substantive consideration relevant to determining whether the common law requires development in any particular case. This does not detract from the constitutional recognition, as indicated above, that it is the Legislature that has the major responsibility for law reform. Courts must be astute to avoid the appropriation of the Legislature's role in law reform when developing the common law. The greater power given to the Courts to test legislation against the Constitution should not encourage them to adopt a method of common-law development which is closer to codification than incremental, fact-driven development. Page 7 [32] Accordingly, I conclude that the definition is not inconsistent with the Constitution but needs to be adapted appropriately. The question remains whether the facts of this case require that the definition be developed so as to include anal penetration of a female. Development of the common law [33] The question of development of the common law was comprehensively discussed by Ackermann and Goldstone 33 in Carmichele 01 in which the duty of Courts that is derived from ss 7, 8(1), 39(2) and 173 of the Constitution was stressed. The Court sounded a reminder to Judges when developing the common law to"be mindful of the fact that the major engine for law reform should be the Legislature and not the Judiciary.’ The Court repeated with approval the remarks of Iacobucci Jin R v Salituro: 0:5) “Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges Should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless there are significant constraints on the power of the Judiciary to change the law. ... In a constitutional demacracy such as ours itis the Legislature and net the courts which has the major responsibilty for law reform... . The Judiciary should confine itself to those incremental changes which are necessary to keep the commen law in step with the dyramic and evelving fabric of our society! 6) ‘The Court, however, said that ‘courts must remain vigilant and should not hesitate to ensure that the common law is developed to reflect the spirit, purport and objects of the Bill of Rights . . . whether or not the parties in any particular case request the Court to develop the commen law under s 39(2)'. .. . Where there is deviation from the spirit, purport and objects of the Bill of Rights, courts are obliged to develop the common law by removing the deviation. 1.71 [34] The High Court emphasised the alleged inequality anc discrimination engendered by the definition and the resultant inadequate and discriminatory sentences. In oral argument counsel for Mr Masiya argued against the development only if the developed definition of rape were to apply to him. The OPP and amici substantially supported the judgment of the High Court and argued that the definition perpetuates gender inequality and promotes discrimination. The DFP further contended that the definition perpetuates leniency in sentencing. [36] The amici, likewise, contendeé that apart from the gendered nature of the origins of the definition, the elements of the crime of rape perpetuate gender stereotypes and discrimination because they are suggestive of the fact that only males can commit the crime and only females can be raped. They argued that once it is recognised that the primary motive for rape is not sexual lust but the desire to gain power or control over another person, with sex being the violent means by which the povrer is exercised, the rationale for maintaining the gender distinction falls away. That might be so. However, for the reasons given above, it would not be appropriate for this Court to engage with these questions. In this respect there are three important considerations that favour restraint on the part of this Court. The first is that what is at issue is extending the definition of crime, Page 8