Masiya v Director of Public Prosecutions Pretoria (The State) and Another (CCT54/06) [2007]  ZACC 9. 

1. Case Title & Citation. 

Masiya v Director of Public Prosecutions Pretoria (The State) and Another (CCT54/06) [2007]  ZACC 9. 

2. Court Name & Bench  
3. i) Court: Constitutional Court of South Africa. 
4. ii) Judges: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, Sachs J,  Skweyiya J, Van der Westhuizen J, Yacoob J. 

iii) Bench Type: Full Bench (11 judges; Constitutional Court). 

3. Date of Judgment  

The judgment was delivered on 10 May 2007. 

4. Parties Involved 

In casu, the appellant is Mr Masiya, a 44-year-old male convicted of rape after non-consensual  anal penetration of a nine-year-old male child. The Respondent in this matter is the State Prosecuting Authority, which seeks to uphold the conviction and legal recognition of the  broader definition of rape. 

5. Facts of the Case  

In this case, the appellant, Masiya, was charged in a regional court with rape after he  unlawfully and non-consensually penetrated the anus of a 9-year-old boy. At the time of the  offence, the common law definition of rape in South African law was limited to non-consensual  vaginal intercourse with a woman.

Therefore, under the existing common law, anal penetration, particularly of a male victim, did  not qualify as rape but could be prosecuted under lesser charges such as indecent assault. 

However, the trial court, recognising the limitations and discriminatory nature of this  definition, extended the definition of rape to include non-consensual anal penetration and  convicted Masiya accordingly. 

The matter was then brought before the High Court, which supported the development of the  common law to include anal penetration of a female, but expressed concern that a full extension  to male victims could violate the principle of legality, especially if applied retrospectively. The  matter then proceeded to the Constitutional Court for confirmation of the High Court’s  decision, raising important constitutional issues around legality, retrospective application of  criminal law, and the judicial role in developing the common law. 

6. Issues Raised. 

The legal questions before the Honourable Court are as follows; 

1. Whether the current definition of rape is inconsistent with the Constitution, and  whether the definition needs to be developed. 
2. whether Mr Masiya is liable to be convicted in terms of the developed  definition; 
3. Whether the declaration of invalidity of the relevant statutory provisions should  be confirmed. 
4. whether the merits of the criminal conviction should be dealt with by this Court;  and 
5. appropriate relief.1

        7.Arguments of the Parties  

• Appellant’s argument. 

Mr Masiya contended that, at the time of the offence, the common-law definition of rape in  South Africa only recognised non-consensual vaginal penetration of a woman by a man. His  conduct, non-consensual anal penetration of a nine-year-old girl, while unquestionably  criminal, fell outside the legal definition of rape and would instead constitute indecent assault.  As such, he argued that it was unconstitutional and procedurally unfair for the Regional Court  to develop the definition of rape mid-trial and convict him of a more serious offence than what  the law provided for at the time. 

He grounded this argument in Section 35(3)(l) of the Constitution of the Republic of South  Africa, 1996, which provides that every accused person has the right “not to be convicted for  an act or omission that was not an offence under either national or international law at the time  it was committed or omitted.” Citing 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 intersect directly with a constitutional right.  

Mr Masiya further argued in contention of the power of the Regional (Magistrates’) Court to  develop the common law. He argued that Magistrates’ Courts lack the constitutional authority  to redefine or develop crimes in line with constitutional values. He relied on Section 173 of the  Constitution, which empowers only the Constitutional Court, the Supreme Court of Appeal,  and the High Courts to develop the common law “taking into account the interests of justice.”  The Magistrates’ Courts, he emphasized, are excluded from this provision. 

Additionally, Mr Masiya invoked Section 110 of the Magistrates’ Court Act 32 of 1944, which  explicitly states that Magistrates’ Courts are not competent to pronounce on the validity of any  law or presidential conduct, and must assume the validity of laws during adjudication. The  statute makes it clear that if a constitutional challenge arises in a Magistrate’s Court, it must  still proceed on the assumption that the existing law is valid. Thus, Mr Masiya argued that the  magistrate in his trial overstepped his jurisdiction by developing the common-law definition of  rape, effectively changing the elements of the crime in a way that the court lacked the legal or  constitutional authority to do. 

However, sections 8(3) and 39(2) of the Constitution impose a duty on all courts to apply and  promote the values of the Bill of Rights when interpreting and applying the law. Mr Masiya  argued that these duties do not equate to the power to create or modify the substance of criminal 

offences. The development of the law, especially criminal law, must be consistent with the  doctrine of stare decisis, to ensure legal certainty, uniformity, and respect for precedent.  

Mr Masiya further argued that his conviction for rape under an expanded, judicially created definition was a violation of his constitutional rights, specifically the right to the principle of  legality and fair trial under Section 35(3)(l). He contended that any change in the definition of  rape should be legislative, not judicial, particularly when such a change creates criminal  liability for conduct not previously criminalised to the same degree. He urged the Court to find  that his conviction for rape was unlawful and should be set aside in favour of a conviction for  the lesser charge of indecent assault, as defined under the law at the time the offence was  committed. 

• Respondent’s argument. 

The respondent’s point of contention, which included the Director of Public Prosecutions, the  Minister of Justice, and other state representatives, argued in support of developing a common law definition of rape that better reflects constitutional values. They contended that the existing  definition, which confined rape to non-consensual vaginal penetration of a female by a male,  was outdated and inconsistent with the Constitution. Specifically, it failed to uphold the rights  to equality and human dignity and the right to be free from all forms of violence, as enshrined  in the Bill of Rights. The respondents maintained that the legal system must recognise that non 

consensual anal penetration, particularly of vulnerable persons such as women and children,  can be just as traumatic and degrading as vaginal penetration and should therefore fall under  the crime of rape. 

The respondents relied on Section 39(2) of the Constitution, which imposes a duty on all courts  to promote the spirit, purport, and objects of the Bill of Rights when developing the common  law. They also cited Section 8(3), which empowers courts to develop common law rules where  necessary to give effect to constitutional rights, provided any limitation aligns with Section 36.  Accordingly, the respondents urged the Constitutional Court to confirm the High Court’s ruling  that extended the definition of rape to include anal penetration of females. They argued that  this development was essential to eliminate the unequal treatment of victims based on the type  of penetration, which they said perpetuated harmful stereotypes and failed to provide equal  protection under the law.

However, the respondents, especially the Minister of Justice, also argued that the development  of the common law must be carried out by courts with the appropriate constitutional authority.  They emphasised that the Regional Magistrate’s Court, which had initially extended the  definition of rape, lacked the jurisdiction to do so. This position was supported by Section 173  of the Constitution, which gives only the Constitutional Court, the Supreme Court of Appeal,  and the High Courts the inherent power to develop the common law. Additionally, Section 110  of the Magistrates’ Courts Act 32 of 1944 prohibits magistrates from pronouncing on the  constitutional validity of legislation or conduct, which the respondents argued includes  developing the substance of common-law crimes.  

Regarding the principle of legality, the respondents were cautious not to violate Section 35(3)(l)  of the Constitution, which guarantees that no one may be convicted for an act that was not a  crime at the time it was committed. While they supported the broader definition of rape, they  argued that this development must be applied prospectively only. To justify this position, they  relied on S v Veldman (ECJ 010/2005) [2005] ZAECHC 7 (25 February 2005), where the  Constitutional Court held that retroactive application of legal changes in criminal matters  infringes on the right to a fair trial. 

8. Judgment 

As a result, the following order was made: 

1. The application for leave to appeal against the declarations of invalidity and the order and  judgment of the High Court confirming the conviction of Mr Masiya of rape was granted. 
2. The application for leave to appeal against the conviction on the merits was dismissed. 3. The order of the High Court was set aside in its entirety. 
3. The order of the Regional Court referring 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 was set aside. 
4. The common-law definition of rape was extended to include acts of non-consensual  penetration of a penis into the anus of a female.
5. The development of the common law referred to in paragraph 5 above shall be applicable  only to conduct which takes place after the date of judgment in this matter. 
6. The conviction of Mr Masiya by the Regional Court of rape was set aside and replaced with  a conviction of indecent assault. 
7. The case is remitted to the Regional Court for Mr Masiya to be sentenced in the light of this  judgment. 

        9.Legal Reasoning / Ratio Decidendi  

The concurring judgment agreed with developing the common-law definition of rape but  argued it should also include non-consensual anal penetration of male victims. It emphasized  that rape is a violation of dignity, equality, and bodily autonomy under sections 10, 9, and 12  of the Constitution, not limited by gender. The judgment relied on international jurisprudence  from the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal  Tribunal for the Former Yugoslavia (ICTY), which defines rape by coercive sexual aggression  rather than specific acts or victims’ sex. It also referred to the International Criminal Court’s  Elements of Crimes (ICC), which include male anal penetration as rape. In casu, the judge  rejected concerns raised in S v Jordan about judicial extension of crimes, noting that male anal  penetration is already criminalized as indecent assault, and this was a reclassification consistent  with constitutional values. 

10. Conclusion / Observations. 

In concluding remarks, the judicial precedent of S v Masiya serves as a landmark judgment in  the development of South African criminal law, as it expanded the definition of rape in a way  that is more aligned with the transformative aims of the Constitution. By extending protection  to all victims of non-consensual sexual penetration, regardless of gender, the Court took a  meaningful step in realising the rights to dignity, equality, and bodily integrity.  

Importantly, the judgment also reflects the commitment within South African jurisprudence to  harmonise domestic law with evolving international human rights norms. While the Court  remained mindful of the limits of its constitutional role, S v Masiya illustrates how the judiciary 

can, and must, respond to the lived realities of sexual violence in a manner that is both  principled and progressive. In doing so, it lays the groundwork for a more inclusive and  equitable legal framework for addressing gender-based violence.

Reference(S):

1 Masiya v Director of Public Prosecutions Pretoria (The State) and Another (CCT54/06) [2007] ZACC 9, at para  19.