Masiya v Director of Publications Pretoria (2007) ZACC 9 (5) SA (CC)

Case name and citation: Masiya v Director of Publications Pretoria (2007) ZACC 9 (5) SA (CC)

Court name: Constitutional Court of South Africa 

1. Parties: The applicant Mr Masiya is an awaiting sentence prisoner. The first respondent is the director of Public Prosecutions; second respondent is the Minister of Justice and Constitutional Development. The first and second amicus curiae, the Centre for Applied Legal Studies and Tshwaranang Legal Advocacy Centre, respectively, have been admitted to assist the court.
2. Facts of the case: Mr Masiya, 44 years of age was alleged that on 16 March 2004 to have wrongfully and unlawfully had sexual intercourse with a nine-year old girl without her consent. 

He pleaded not guilty, the defence contended that if Mr Masiya were to be found guilty, he should be convicted of indecent assault. 

The existing common law definitions of crime, the non-consensual anal penetration of a girl or boy amounts only to the common law crime of indecent assault and not rape, because only non-consensual vaginal sexual intercourse is regarded as rape. The regional Court held that the definition should be developed. 

Legal issues: 

• whether the current definition of rape is inconsistent with the Constitution and whether the definition needs to be developed? 
• Whether Mr Masiya is liable to be convicted in terms of the developed definition? 

Arguments of the parties: 

Appellant’s argument: the principle of legality states that Sections 35(3)(L) of the Constitution of the Republic of South Africa, confirms a long standing principle of common law that provides that accused persons may not be convicted of offences where the conduct for which they are charged did not constitute an offence when it was committed. 

The common law definition of rape is limited to non-consensual, vaginal sexual intercourse, the Regional Court considered whether his definition should be developed to include anal penetration. 

Council for the applicant states that despite the fact that Mr Masiya’s conduct is a crime that evokes strong emotions from many, a development that is necessary to clarify the law should not be to the detriment of the accused person concerned unless he is aware of the nature of the criminality of his act. It can hardly be said that Mr Masiya was indeed aware, foresaw or ought reasonably to have foreseen that his act might constitute rape as the magistrate appears to suggest. To convict him of rape would be in violation of his right as envisaged in section 35(3)(L) of the Constitution, as S v Boesak 2001 (1) SA 912 (CC), Mr Masiya further argued that appeals based purely on factual disputes do not generally raise constitutional issues, unless the facts infringe directly on a constitutional right. 

Although Magistrates Court are at the heart of the application of the common law on a daily basis and in most instances, courts of first instance in criminal cases, there are legitimate reasons why they are not included under section 173. Magistrates are constrained in their ability to develop crimes at common law due to doctrine of precedent. 

Section 172(1)(b) of the Constitution confers a discretion on this court to make any order that is just and equitable. Section 39(2) of the Constitution places an obligation on the courts to develop common law so as to promote the spirit, purport and objects of the Bill  of Rights.

 Respondent’s argument: The Minister opposed the development. She relied on the decision of this Court in S v Mhlungu and Others that the Regional Court should have decided the guilt or otherwise of Mr Masiya on the facts and without considering the constitutional issue of developing the definition of rape. That might well have been the proper way to deal with the matter. However, the failure to do so is, in the circumstances of this case, of no consequence. When the matter was referred to the High Court in terms of section 52 of the Act, that Court had to determine whether the conviction was in accordance with justice before considering an appropriate sentence. The Court called for further evidence and confirmed the conviction. Strictly speaking, it is that finding, among others, and not the finding by the Regional Court, against which leave to appeal is sought. Historically rape has been and continues to be a crime of which females are its systematic target. It is the most reprehensible form of sexual assault constituting as it does a humiliating, degrading and brutal invasion of the dignity of a person. 

Judgment: 

the application for leave to appeal against the declaration of invalidity and the order of the High Court confirming the conviction of Mr Masiya of rape is granted.

The order of the High Court is set aside entirely. 

The order of the Regional Court referring to the criminal proceedings to the High Court for purposes of sentence in terms of section 52(1)(b)(i) of the Criminal Law Amendment Act 105 of 1997 is set aside. 

The common-law definition of rape is extended to include acts of non-consensual penetration of a penis into the anus of a female.

Reason for the court’s decision:

The court noted that historically, the crime of rape evolved as a patriarchal concept. The Constitutional Court declined to confirm the High Court’s order. The majority, in a judgment written by Nkabinde J, found that the common law definition of rape was not unconstitutional insofar as it criminalised conduct that was clearly morally and socially unacceptable. The definition needed to be appropriately adapted as it was not in line with the spirit, purport and objects of the Bill of Rights. 

On an interpretation of sections 39(2) read with the human rights contained in Section 9, 10 and 12 being the right to equality, dignity and freedom respectively there is a legal obligation on the members of the court. The focus is on the breach of a more specific right such as the right to bodily integrity and security of the person and the right to be protected from degradation and abuse, the crime of rape should be seen in this context. 

The definition of rape has been subject to law reform initiatives in many other countries such as the United Kingdom, Canada and Australia. In South Africa the reform started in 1996 when the South African Law Reform Commission (SALRC) conducted an investigation into sexual offences more broadly. That report was followed by a request from the Minister that the commission investigate sexual offences more broadly. The definition of rape proposed by the SALRC replaces the concept of sexual intercourse, penetration of a vagina by a penis, with that of sexual penetration which includes the penetration of both the vagina and the anus by a penis as stated in clause 2(1) of the 2003 Bill.

Conclusion

The Masiya case became a landmark case because it modernised the definition of rape, promoted gender equality and dignity under the Constitution, clarified the limits of judicial law-making, and paved the way for the sexual offences Act 32 of 2007. By developing the common law the court directly aligned criminal law with Constitutional principles.

The court recognised non-consensual anal penetration of females as deserving the same legal status as vaginal rape, thus remedying its exclusion in the common law. 

Even though the court expanded the law, it did not apply the new definition retroactively to Masiya himself. This reaffirmed a crucial criminal law principle that no one may be convicted for conduct that wasn’t legally defined as a crime at the time they did it according to the principle of legality. 

This case is praised for its Constitutional development and gender justice, but also criticised for being too limited and cautious. Supporters highlight its recognition of women’s dignity and legality of principles, while critics say it missed a chance for equality.