The case of S v Masiya serves as the landmark case on the definition of rape under common law in South Africa. Before the Criminal Law (Sexual Offences and Related Matters) Amendment Act, required an unlawful and intentional vaginal penetration of a female by a male without her consent. A male inserting his penis into the anus of a woman was a different and lesser offense of indecent assault, in the case of S v Masiya, the definition of rape was extended to include the penetration of a male’s penis into the anus of a woman. The case played a significant role in accommodating both genders in the definitions of rape, the case further extended the definition of rape to include the penetration of vagina to a males penis as rape. Section 3 of the Criminal Law (Sexual Offences and Related Matters) defines rape as the unlawful and intentional sexual penetration of genital organs with latter person without the consent of the latter.  

Facts

The incident occurred on the 16th of March 2006 where the accused (Mr Masiya) sexually penetrated his penis into the anus of a nine-year-old girl without her consent during that time, the definition rape of common law required unlawful and intentional penile penetration of a woman, on the 23rd of March 2006 she was medically examined. Mr Masiya made his first appearance at the District court at Sabie , his case was later referred to the Graskop Regional Court where the court charged him with rape ,Even though the complainant stated that she was sexually penetrated both in the anus and vagina, the medical examinations did not confirm the allegations entirely ,the only part that the medical expert satisfied to the Regional Court was the fact that indeed anal penetration had taken place and Mr Masiya was the perpetrator even though “anal penetration’ was not included in common law definition of rape but the Regional Court convicted Mr Masiya of rape and he was referred to the High Court for sentencing.

After thorough deliberation, the High Court supported the ruling of the Magistrate Court that indeed that the common law definition of rape needed to be extended under section 39(2) of the Constitution, The High Court concluded that the definition of rape must be extended to include non-consensual penetration of anus so that the offence can be gender neutral to protect both genders irrespective of the sex even though Maiya was convicted for rape through anal penetration which was not recognized by common law the court held that his constitutional fair trial rights against retrospective criminalization (Section 35(3)(I) could be justifiable.The decision of the High Court was then referred to the Constitutional Court for confirmation in terms of section 172(2).

ISSUES

• Whether the common law definition of rape was inconsistent with the Bill of Rights, particularly Section 9, which is equality, Section 10, Dignity and freedom from violence which is Section 12, and the development to include non-consensual penile-anal penetration under section 39(2).

• Whether the definition that was expanded could apply retrospectively to convict Mr Masiya without violating his fair trials rights mentioned in section 35 (3)(I) (There is no crime without law).

• Whether the lower courts, specifically High Courts and Magistrate court had jurisdiction to declare the definition of common law unconstitutional and to develop common law .

Arguments of the parties

Mr Masiya who was the appellant argued that the application of the retrospective of the extended definition of rape violated his constitutional rights which were stated under section 35(3)(I) that there is no crime without law meaning that if there was no law that was prohibiting the conduct when it executed, then there is no crime. His council further opposed any development of rape definition if it was going to apply retrospectively only to me where he also stressed the lack of foreseeability since anal penetration only constituted to indecent assault under the common law not rape. He challenged the conviction on factual grounds and preferred pursuing an ordinary appeal rather than direct referral to the Constitutional Court 

The Director of Public Prosecutions (DPP) as the respondent, agreed with the decision to expand the definition of rape, arguing that focusing on vaginal penetration entrenched gender discrimination and inequality, they further argued that lenient sentencing was inconsistent with the constitutional values which are section 9 (Dignity) and 10(Equality) of the Constitution. They contend that the definition of rape upheld patriarchal stereotypes viewing rape as a conduct that was driven by power rather than lust. They pushed for gender neutral reform, highlighting that the trauma anal penetration was equivalent to the trauma of vaginal penetration.

Judgment / Final Decision of the Constitutional Court

Nkabinde J observed that the facts of the case involved only anal penetration of a girl therefore, the court did not have to address the extension of the definition of rape to include male victims. The Constitutional Court held that the definition of rape was too narrow and it should be extended to include non-consensual anal penetration of a female. The CC also stated the assessed the important directions for the criminal justice to align with the constitutional rights to dignity and bodily integrity, Even though the CC developed common law they concluded that it was not going to be applied to Mr. Masiya’s conduct so that his section 35(3)(I) which are under “Nullum crimen sine lege’’ principle can be upheld. They also ruled that lower courts lacked jurisdiction to develop common law crimes but High Courts may assess constitutionality in limited contexts.

RESTROSPECTIVE APPLICATION

The expanded definition could not apply retrospectively to convict Mr. Masiya because his anal penetration constituted to indecent assault under the preexisting common law not rape which only required vaginal penetration, Application of  the new definition was going to lead to the violation of section 35(3)(I) , despite his conduct being unlawful, foreseeability of the exact crime was required for conviction. The court convicted him with indecent assault and remitted sentencing accordingly .

LEGAL REASONING

The Court ruled that the old common law definition of rape was old and it discriminatory as it excluded other forms of sexual violations against women especially anal penetration. This judgement emphasized respecting the constitutional rights of women and affirmed that the law must change to protect these rights. The Court applied the following rights which are right to dignity , right to equality and bodily integrity as stated in the South African constitution , they further cited the constitutional jurisprudence that supported the transformative interpretation of common law offences. This decision did not only expand the definition of common law, but it also improved the legal principle of rape to include all forms of non-consensual sexual penetration which reflected the change in the standards of the society .

CONCLUSION

The ruling in the case of S v Masiya is important as it marked a progressive step in South African criminal law by aligning with its constitutional values and recognizing the rights of women more comprehensively. This case served and still serves as a precedent for further developments in sexual offenses law and highlights the significance of law reform in addressing gender based violence and it reflected a respectful and emphatic approach to protecting the victim’s rights within the legal system.