S v Masiya (also cited as Masiya v Director of Public Prosecutions,Pretoria)

Case Tite & Citation

Full Name of the Case: S v Masiya (also cited as Masiya v Director of Public Prosecutions, Pretoria)

Full Citation: 2007 (5) SA 30 (CC); 2007 (2) SACR 435 (CC); [2007] ZACC 9

Court Name & Bench

Court: Constitutional Court of South Africa

Judges: Nkabinde J (majority), with Langa CJ, Madala J, Kondile AJ, O’Regan J, Van Heerden AJ, Mokgoro J, Moseneke DCJ, Sachs J, Yacoob J, Van der Westhuizen J concurring. Langa CJ gave a separate concurrence.

Bench Type: Full Bench of the Constitutional Court

Date of Judgment

10 May 2007

Parties Involved

Appellant (Accused): Fanuel Sitakeni Masiya – charged with raping a 9-year-old girl.

Respondents: Director of Public Prosecutions, Pretoria Minister of Justice and Constitutional Development

Amici curiae: Centre for Applied Legal Studies, Tshwaranang Legal Advocacy Centre, and others

THE FACTS OF THE CASE

In March 2004, Masiya was accused of committing an act of sexual penetration on a nine-year-old girl. [1]At the trial level, the evidence established that the penetration was anal, not vaginal. Under the common law definition of rape existing at that time, non-consensual anal penetration was not considered “rape” but would instead amount to indecent assault (a lesser offence).[2] The trial court (a Regional Magistrate’s Court) diverged from the common law definition: it held that the traditional definition was unconstitutional to the extent that it excluded anal penetration and thus convicted Masiya of rape instead of indecent assault.[3] Because the Magistrate’s Court lacked sentencing jurisdiction for rape (a more serious crime), the matter was referred to the High Court for sentencing and confirmation of the widening of the definition.[4] The High Court (Pretoria) confirmed the conviction under the expanded interpretation. The matter was then brought to the Constitutional Court, and in addition, a confirmation (in terms of constitutional invalidity) was required.[5]

ISSUES THAT WERE RAISED IN THIS CASE

• Whether the common law definition of rape (limited to vaginal penetration) was constitutionally valid.
• Whether the definition should be developed to include anal penetration.
• Whether this development should apply retrospectively to Masiya or only prospectively.
• Whether convicting Masiya under the new definition would violate the principle of legality (no retrospective criminalisation).

ARGUMENTS OF THE PARTIES

The applicant, Masiya, contended that applying a newly developed, broader definition retrospectively to him would violate the principle of legality (a person must be able to foresee that their conduct is criminal). [6] He argued that at the time of the act, the law did not define anal penetration as rape, so he lacked fair notice. He accepted, for the sake of argument, that the definition might be constitutionally defective, but insisted that it should not be applied to him (i.e., prospective application).[7] He may have contested that the Magistrate’s original redefinition exceeded judicial powers.[8] He argued that applying an expanded definition retrospectively would breach his constitutional right under s 35(3)(l) (no one may be convicted for conduct that wasn’t criminal at the time).[9] At the time of the act, anal penetration was not “rape” under South African law.

The State argued that the common law definition was discriminatory and violated rights to dignity, equality, and bodily integrity. It perpetuated inequality by treating anal violations of women as less serious than vaginal violations.[10] The court had a duty under s 39(2) of the Constitution to develop the common law in line with constitutional rights[11]. The development should apply, but only prospectively, to respect the principle of legality.[12] Some amici argued for a gender-neutral definition that included male victims, but the Court was asked to focus only on the facts before it.

JUDGEMENT OF THE CASE

The Constitutional Court held that the common law definition of rape was unconstitutional to the extent that it excluded anal penetration of a female.[13] It developed the definition of rape to include non-consensual penile-anal penetration of a female. However, the Court ruled that this development would apply prospectively only.[14] Masiya could not be convicted of rape under the new definition because of the principle of legality; his conviction was changed to indecent assault. [15]The case was sent back to the lower court for sentencing on the correct charge.

LEGALITY OF THE CASE

The Court emphasized that an accused cannot be convicted of an offence which was not clearly an offence at the time of the conduct, section 35(3)(l) of the Constitution protects against retrospective criminal liability.[16] Under section 39(2), courts must interpret and, where necessary, develop common law in harmony with constitutional rights. The Court held that the exclusionary aspect of rape’s definition was inconsistent with rights to dignity, equality, bodily integrity, and protection from violence. [17] The Court recognized that courts should be cautious about altering the substance of the criminal law (especially expanding crimes), and that legislatures are the primary agents of law reform.

Judicial development must respect doctrine, fairness, predictability, and not impair the fundamental rights of accused persons. [18] To reconcile the need for law reform with the protection of rights, the Court decided that the expanded definition should only apply going forward, so as not to penalize Masiya for something that the law did not clearly criminalize at his time.[19] Because the facts dealt only with anal penetration of a female, the Court limited its redefinition to that scenario; it declined to address a broader gender-neutral expansion, including male victims, because that issue was not before it.[20] The Court replaced Masiya’s conviction with a conviction for indecent assault and remitted for sentence, ensuring equitable and constitutional relief.[21]

CONCLUSION

S v Masiya is a landmark case that broadened the common law definition of rape to include anal penetration of women, strengthening constitutional protections of dignity and equality, confirmed in sections 9 and 10 of the South African Constitution.[22] It also highlights that the Court’s cautious approach ensures progressive reform while safeguarding the rights of accused persons through prospective application only.

Some argue that the Court missed the chance to adopt a gender-neutral definition (including male victims). That broader reform only came later, with the enactment of statutory law (Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007). This case played a significant role in subsequent cases.  It enlightened and educated the public about the importance of understanding the word “RAPE”, it’s quite sad that there’s still a rapid growth of cases of rape in South Africa, even though there were cases like S v Masiya dealing with and broadly defining rape.

And I highly think that the government should launch campaigns, raise awareness, and teach the public about how serious and traumatic the issue of rape is. The sentencing of the perpetrators has also not been too lenient, and the victims of rape should get help as much as they can to ease their pain and get treatment mentally and physically, and also the religions and customary law leaders has to play their huge part on this by teaching and also especially customary leaders look at their laws and regulations, to make some adjustments on dealing with the issue that may make the young and old men think their superior or have a right to control woman’s body, not to exclude the cases of male being raped but the majority of cases are of women and children being raped each and every year in south Africa.

BIBLIOGRAPHY

CASE

S v Masiya (CC628/05) [2006] ZAGPHC 69; 2006 (11) BCLR 1377 (T); 2006 (2) SACR 357 (T) (25 July 2006) https://www.saflii.org/za/cases/ZAGPHC/2006/69.html  

LEGISLATION

The South African Constitution 1996.

[1] S v Masiya (CC628/05) [2006] ZAGPHC 69; 2006 (11) BCLR 1377 (T); 2006 (2) SACR 357 (T) (25 July 2006)

[2] Masiya v Director of Public Prosecutions Pretoria (The State) and Another [2007] ZACC 9 (10 May 2007).

[3] Ibid.

[4] Ibid.

[5] Masiya v Director of Public Prosecutions Pretoria (The State) and Another [2007] ZACC 9 (10 May 2007).

[6] Masiya v Director of Public Prosecutions Pretoria (The State) and Another [2007] ZACC 9 (10 May 2007).

[7] Ibid.

[8]Ibid.

[9] S v Masiya (CC628/05) [2006] ZAGPHC 69; 2006 (11) BCLR 1377 (T); 2006 (2) SACR 357 (T) (25 July 2006)

[10] Masiya v Director of Public Prosecutions Pretoria (The State) and Another [2007] ZACC 9 (10 May 2007).

[11] Ibid.

[12] Ibid.

[13] Masiya v Director of Public Prosecutions Pretoria (The State) and Another [2007] ZACC 9 (10 May 2007).

[14] Masiya v Director of Public Prosecutions Pretoria (The State) and Another [2007] ZACC 9 (10 May 2007).

[15] Ibid.

[16] Masiya v Director of Public Prosecutions Pretoria (The State) and Another [2007] ZACC 9 (10 May 2007).

[17] Masiya v Director of Public Prosecutions Pretoria (The State) and Another [2007] ZACC 9 (10 May 2007).

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Masiya v Director of Public Prosecutions Pretoria (The State) and Another [2007] ZACC 9 (10 May 2007).

[22] The South African Constitution 1996.