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Criminal Law (2020) - Values of Criminal Law - Principle of Legality
Criminal Law (2020) - Values of Criminal Law - Principle of Legality
DEFINITION:
● The principle of legality proclaim that punishment may only be inflicted for contravention
of a clearly defined crime created by a law that was in force before contravention
● The principle of legality is a mechanism to ensure that the state, its organs and its
officials don’t consider themselves to be above the law
● The principle of legality (nullum crimen sine lege) which is of European origin is at the
core of the Rule of Law and respect for human dignity.
● Part of the common law as well as S 35(3) of the Constitution
● An accused can’t be found guilty of a crime unless the type of conduct has been
recognised by the law as a crime, in clear terms, before the conduct took place and after
conviction, an accused can’t be sentenced unless the punishment complies with the
principles
Notes adapted from Snyman Principles of Legality and Burchell Principles of Criminal Law
○ Judge is creating a crime that doesn't exist in SA law
○ Nullum crimen sine poena stresses that punishment is an integral factor in the
concept of crime and serves to distinguish a chrome from other wrongdoing
*When being asked in a test a scenario will be given as you will have to identify which principles
were violated in the scenario and why you think it’s been violated*
RATIONALE:
● Basis of legality is that policy that rules of the criminal law must be clear and precise as
possible so that people know in advance what is a crime and can, therefore, avoid
committing one. - the principle of fair warning
Cases:
1. Veldman v Director of Public Prosecutions, Witwatersrand
- Was a murder and convicted in the regional court.
- The maximum sentence was 10 years - which applied when he was convicted
- Case delayed, and pleaded guilty
- Before he was sentenced, legislation changed to maximum sentence 15 years
- The judge changed his connection to 15 years
- He took his case to the constitutional court as he believed his right to a fair trial has been
violated, was it in violation of the principle of legality
- The court's decision was that is was a violation
- Section 35 (3) N: there is a presumption is retrospective
- Ius Praevium was violated
Notes adapted from Snyman Principles of Legality and Burchell Principles of Criminal Law
3. S v Francis and another 1994
- Left rehabilitation centre
- Appeared before court
- 1993 made no provision for criminalising absconding from the rehab centre, it should be
dealt with internally
Notes adapted from Snyman Principles of Legality and Burchell Principles of Criminal Law
Criticism of Masiya by Snyman:
- Believed that the constitutional court overstepped its judicial function and violated the
principles of legality and took over the function of legislature
- Argues that the Constitutional court judgement leads to legal uncertainty
- Says this opens doors for the common law to be extended in other ways in the future
- Snyman believes that the definition of penile-vaginal penetration doesn’t discriminate
against women and therefore there is no need to extend it.
- Believed viaganal must be treated differently as it can lead to pregnancy
Notes adapted from Snyman Principles of Legality and Burchell Principles of Criminal Law
Provisions creating crimes must be interpreted strictly:
● The general principle of legality can never be undermined if the court is free to interpret
the concepts contained in the definition widely or extend their application of
interpretation
● There is a rule when interpreting statutes that crime creating provisions are both acts of
parliament and subordinate legislation must be interpreted strictly - in favorem libertatis
○ The act should be interpreted to weigh in favour of the person committing the
conduct but only where doubt exists concerning the interpretation of a criminal
provision
● A court is not free to extend the definition of a common-law crime by means of wide
interpretations
● The principle of ius strictum implies that a court is not authorised to extend a crime’s field
of application by means of analogy to the detriment of the convicted
○ Analogy refers to a partial resemblance between two concepts
○ This applies to statutory and common law crimes
Notes adapted from Snyman Principles of Legality and Burchell Principles of Criminal Law