Study Unit 2 (CRW2601) – The Principle of Legality as entrenched in the Constitution of South Africa
The Concept of Legality
Read case book 3 – 22
First question of criminal liability is whether the act was recognised by the law as a crime. If
something is prohibited by law, it MAY NOT be considered a crime. Not every contravention of a
legal rule constitutes a crime.
Principle of legality also known as: nullum crimen sine lege (no crime without a legal provision).
Principle of legality is in section 35(3)(1) of the Constitution.
5 Rules embodied in the principle of legality
1. Ius acceptum – court can only find someone guilty of a crime, and cannot ‘create a crime’.
2. Ius praevium – court can only find someone guilty if the crime was a legal crime at the time
of the commission of the act
3. Ius certum – crimes cannot be formulated vaguely
4. Ius strictum – court must interpret the definition narrowly rather than broadly
5. Nulla poena sene lege (nulla poena) – when someone is found guilty the above 4 rules must
be applied in the sentence
Judges function is not to create law, but to interpret it.
Diagram from pg 15 here.
2.4 Ius Acceptum – conduct must be recognised by the law as a crime
RSA criminal law is not codified, therefore it comes mainly from common law.Even though we use
common law, it must be clear that the conduct is considered a crime in common or statutory law. If
this is not so, the court cannot convict the accused.
In RSA ius acceptum refers to common and statutory law.
2.4.1 Common-law crimes
There can be no crime where provision has not been made for such a crime/act in common-law.
Case law: Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC)
Legislature (not courts) has mandate of law reform
Balance of powers and functions should be recognised and respected
2.4.2 Statutory crimes
If parliament wants to create a crime, the act will best comply with the principle of legality if it
expressly declares that:
1. That particular type of conduct is a crime
2. What punishment must be imposed upon a person convicted of that crime
When the wording in an act is unclear if a crime has been created:
Court should assume a crime has been created only when it appears unambiguously in the
text
If the act does not expressly declare that a crime has been created, it should be slow to
interpret the conduct as such
, Consideration of ambiguous wording in acts should be interpreted in the favour of the
accused (Hanid 1950 (2) SA 592 (T))
Legal norm – provision creating a legal rule that does NOT simultaneously create a crime
Criminal norm – provision that makes clear certain conduct is a crime
Criminal sanction – provision of what punishment a court must impose
A simple legal norm will not without strong and convincing evidence to the contrary create a
criminal norm.
Before we can accept that a crime has been created, the provision must contain a criminal norm.
What if a criminal norm is created, but not a sanction?
Supreme court of appeal rejected the contention that conduct that breaks a criminal norm that has
no sanction attached to is not a crime. – Director of Public Prosecutions, Western Cape v Prins 2012
9 SACR 183
When there is no sanction but clearly the Act means to create a specific crime, it is up to the court to
decide the punishment.
Ideal is that the legislature will create a maximum punishment for a crime.
2.5 Ius Praevium - Crimes should not be created with retrospective
effect
Crime cannot take place if it is not recognised as a crime at the time.Retrospective effect (ex post
facto) is contrary to the principle of legality. Ius Praevium is expressly set out in the Constitution
Section 35(3).Any law that violates the Bill of rights may be declared null and void.
Masiya – Rape was defined as penetration of the penis into the vagina. Constitutional Court rules
that penetration of the penis into the anus would only be applied proactively (going forward).
2.6 Ius Certum – Crimes must be formulated clearly
Even if ius acceptum (accepted as a crime) and ius praevium (not in retrospect) are complied with
the principle of legality can still be undermined by the creation of criminal norms which are created
vaguely or unclearly.
The Constitution contains no express provision with regards to ius certum.
Section 35(3) can however be read to include this rule.
Right to a fair trial
Conduct may be seen as breaking a criminal norm
2.7 Ius Strictum – provisions creating crimes must be interpreted
strictly
Even if Ius Acceptum, Ius Praevium, and Ius Certum have been complied with, Ius Strictum not
complied with can still undermine the principle of legality. The court would be free to interpret he
law in any which way they liked – as broadly as they wanted.
,Underlying idea is that when an Act is unclear it should be interpreted in favour of the accused
(given the benefit of the doubt).
In Mayisa the Con Court held that a High Court may in exceptional circumstances, extend the field of
application of a crime in order to promote the Constitution.
Read Masiya case in casebook 3-15, and Mshumpa 2008 (1) SACR 126 (E) casebook 264-275
2.8 Principle of Legality in Punishment
In dealing with punishment the previous rules (ius acceptum, ius praevium, ius certum ,and ius
strictum) also apply.
Application of the principle of leglaity to punishment is often expressed by the maxim nulla poena
sine lege – no penalty without a statutory provision or legal rules.
Court cannot impose a punishment that is not recognised in statutory or common law
Court cannot impose a punishment retrospectively
Legislature cannot create vague or unclear punishment
Where the provision of a punishment is described, the court must interpret it strictly
Study Unit 4 (CRW2601) – The Definitional Elements and Causation
4.2 The Definitional Elements
Criminal Law 71-94
Meaning: Description of the requirements for liability for a specific crime.
Definitional elements allow both an ordinary person and the courts to know which requirements apply to a
certain crime.
Formula: Whoever does X commits a crime (X is the definitional elements).
Definitional elements contain:
1. Description of the kind of act (e.g. possession, penetration)
2. Description of the circumstances in which the act must take place (e.g. forcibly)
3. Characteristics of the person committing the act (person who owes allegiance – in treason)
4. Nature of the object (e.g. dagga)
5. A particular place (e.g. on a yellow line)
6. Time it took place (e.g. on a Sunday)
Don’t confuse “the definitional elements“, with “the definition of the crime”. Definition of the crime includes
the definitional elements as well as the requirements of unlawfulness and culpability.
4.3 Causation
Criminal law 79-94; case book 33-60
4.3.1 The difference between formally- and materially-defined crimes
2 groups of crimes according to definitional elements.
Group 1 – formally-defined crimes: definitional elements forbid a certain type of conduct (commission or
omission) irrespective of what the result of the conduct is. (E.g. perjury, possession of illegal drugs)
, Group 2 (result crimes) – materially-defined crimes: definitional elements: do NOT forbid a specific conduct,
but rather any conduct that causes a specific condition. (E.g. murder, arson)
4.3.2 The issue of causation
Materially defined crimes – always a question of a causal link (nexus) between conduct and prohibited result.
Did the act precipitate the death?
Makali 1950 (1) SA 340 (N); Hartmann 1975 (3) 532 (C) 534
4.3.3 The principles to be applied in determining causation
Basic Principle
2 requirements must be met:
1. It must be clear that X’s act was the factual cause of Y’s death
2. It must be clear that X’s act was the legal cause of Y’s death
There is factual causation if it is a sine qua non. But for X’s action Y would not be dead.
There is legal causation if in terms of policy considerations, it is deemed reasonable and fair that X’s act was
the cause of Y’s death.
Causal link = factual causation + legal causation
Factual causation – contitio sine qua non
But for the occurrence of the act (or event) the prohibited condition would not have happened.
An act of condition sine qua non for a situation if the act cannot be thought away without the situation
disappearing at the same time.
Examples in case law of condition sine qua non: makali 1950 (1) SA 340 (N); Mokoena 1979 (1) PH H 13 (A); and
Minsiter van Polisie v Skosanna 1977 (1) SA 31 (A) 44
MOST NB!! In Daniels 1983 (3) SA 275 (A), the Appeal court decided that factual causation is determined on
the basis of the sconditio sine qua non theory.
Legal causation – general
Because of wide scope of factual causation that legal causation is needed.
Certain specific tests to determine legal causation:
1. Proximate cause
2. Adequate cause
3. Novus actus interviens
Courts are reluctant to use one of the 3 tests in all cases, instead they pick the one which they interpret to be
most useful.
Sometimes they can base a finding of legal causation on other considerations.
Theories of legal causation
Individualisation theories: we must look among all the factors that qualify as factual causes for the one that s
most proximate.
Objection to this approach: 2 or more conditions may operate in equal measure.
Today this test (proximate cause) finds little support.
Daniels 1983 (3) SA 275 (A) – majority of appeal court judges refused to accept causation by proximation.
The Concept of Legality
Read case book 3 – 22
First question of criminal liability is whether the act was recognised by the law as a crime. If
something is prohibited by law, it MAY NOT be considered a crime. Not every contravention of a
legal rule constitutes a crime.
Principle of legality also known as: nullum crimen sine lege (no crime without a legal provision).
Principle of legality is in section 35(3)(1) of the Constitution.
5 Rules embodied in the principle of legality
1. Ius acceptum – court can only find someone guilty of a crime, and cannot ‘create a crime’.
2. Ius praevium – court can only find someone guilty if the crime was a legal crime at the time
of the commission of the act
3. Ius certum – crimes cannot be formulated vaguely
4. Ius strictum – court must interpret the definition narrowly rather than broadly
5. Nulla poena sene lege (nulla poena) – when someone is found guilty the above 4 rules must
be applied in the sentence
Judges function is not to create law, but to interpret it.
Diagram from pg 15 here.
2.4 Ius Acceptum – conduct must be recognised by the law as a crime
RSA criminal law is not codified, therefore it comes mainly from common law.Even though we use
common law, it must be clear that the conduct is considered a crime in common or statutory law. If
this is not so, the court cannot convict the accused.
In RSA ius acceptum refers to common and statutory law.
2.4.1 Common-law crimes
There can be no crime where provision has not been made for such a crime/act in common-law.
Case law: Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC)
Legislature (not courts) has mandate of law reform
Balance of powers and functions should be recognised and respected
2.4.2 Statutory crimes
If parliament wants to create a crime, the act will best comply with the principle of legality if it
expressly declares that:
1. That particular type of conduct is a crime
2. What punishment must be imposed upon a person convicted of that crime
When the wording in an act is unclear if a crime has been created:
Court should assume a crime has been created only when it appears unambiguously in the
text
If the act does not expressly declare that a crime has been created, it should be slow to
interpret the conduct as such
, Consideration of ambiguous wording in acts should be interpreted in the favour of the
accused (Hanid 1950 (2) SA 592 (T))
Legal norm – provision creating a legal rule that does NOT simultaneously create a crime
Criminal norm – provision that makes clear certain conduct is a crime
Criminal sanction – provision of what punishment a court must impose
A simple legal norm will not without strong and convincing evidence to the contrary create a
criminal norm.
Before we can accept that a crime has been created, the provision must contain a criminal norm.
What if a criminal norm is created, but not a sanction?
Supreme court of appeal rejected the contention that conduct that breaks a criminal norm that has
no sanction attached to is not a crime. – Director of Public Prosecutions, Western Cape v Prins 2012
9 SACR 183
When there is no sanction but clearly the Act means to create a specific crime, it is up to the court to
decide the punishment.
Ideal is that the legislature will create a maximum punishment for a crime.
2.5 Ius Praevium - Crimes should not be created with retrospective
effect
Crime cannot take place if it is not recognised as a crime at the time.Retrospective effect (ex post
facto) is contrary to the principle of legality. Ius Praevium is expressly set out in the Constitution
Section 35(3).Any law that violates the Bill of rights may be declared null and void.
Masiya – Rape was defined as penetration of the penis into the vagina. Constitutional Court rules
that penetration of the penis into the anus would only be applied proactively (going forward).
2.6 Ius Certum – Crimes must be formulated clearly
Even if ius acceptum (accepted as a crime) and ius praevium (not in retrospect) are complied with
the principle of legality can still be undermined by the creation of criminal norms which are created
vaguely or unclearly.
The Constitution contains no express provision with regards to ius certum.
Section 35(3) can however be read to include this rule.
Right to a fair trial
Conduct may be seen as breaking a criminal norm
2.7 Ius Strictum – provisions creating crimes must be interpreted
strictly
Even if Ius Acceptum, Ius Praevium, and Ius Certum have been complied with, Ius Strictum not
complied with can still undermine the principle of legality. The court would be free to interpret he
law in any which way they liked – as broadly as they wanted.
,Underlying idea is that when an Act is unclear it should be interpreted in favour of the accused
(given the benefit of the doubt).
In Mayisa the Con Court held that a High Court may in exceptional circumstances, extend the field of
application of a crime in order to promote the Constitution.
Read Masiya case in casebook 3-15, and Mshumpa 2008 (1) SACR 126 (E) casebook 264-275
2.8 Principle of Legality in Punishment
In dealing with punishment the previous rules (ius acceptum, ius praevium, ius certum ,and ius
strictum) also apply.
Application of the principle of leglaity to punishment is often expressed by the maxim nulla poena
sine lege – no penalty without a statutory provision or legal rules.
Court cannot impose a punishment that is not recognised in statutory or common law
Court cannot impose a punishment retrospectively
Legislature cannot create vague or unclear punishment
Where the provision of a punishment is described, the court must interpret it strictly
Study Unit 4 (CRW2601) – The Definitional Elements and Causation
4.2 The Definitional Elements
Criminal Law 71-94
Meaning: Description of the requirements for liability for a specific crime.
Definitional elements allow both an ordinary person and the courts to know which requirements apply to a
certain crime.
Formula: Whoever does X commits a crime (X is the definitional elements).
Definitional elements contain:
1. Description of the kind of act (e.g. possession, penetration)
2. Description of the circumstances in which the act must take place (e.g. forcibly)
3. Characteristics of the person committing the act (person who owes allegiance – in treason)
4. Nature of the object (e.g. dagga)
5. A particular place (e.g. on a yellow line)
6. Time it took place (e.g. on a Sunday)
Don’t confuse “the definitional elements“, with “the definition of the crime”. Definition of the crime includes
the definitional elements as well as the requirements of unlawfulness and culpability.
4.3 Causation
Criminal law 79-94; case book 33-60
4.3.1 The difference between formally- and materially-defined crimes
2 groups of crimes according to definitional elements.
Group 1 – formally-defined crimes: definitional elements forbid a certain type of conduct (commission or
omission) irrespective of what the result of the conduct is. (E.g. perjury, possession of illegal drugs)
, Group 2 (result crimes) – materially-defined crimes: definitional elements: do NOT forbid a specific conduct,
but rather any conduct that causes a specific condition. (E.g. murder, arson)
4.3.2 The issue of causation
Materially defined crimes – always a question of a causal link (nexus) between conduct and prohibited result.
Did the act precipitate the death?
Makali 1950 (1) SA 340 (N); Hartmann 1975 (3) 532 (C) 534
4.3.3 The principles to be applied in determining causation
Basic Principle
2 requirements must be met:
1. It must be clear that X’s act was the factual cause of Y’s death
2. It must be clear that X’s act was the legal cause of Y’s death
There is factual causation if it is a sine qua non. But for X’s action Y would not be dead.
There is legal causation if in terms of policy considerations, it is deemed reasonable and fair that X’s act was
the cause of Y’s death.
Causal link = factual causation + legal causation
Factual causation – contitio sine qua non
But for the occurrence of the act (or event) the prohibited condition would not have happened.
An act of condition sine qua non for a situation if the act cannot be thought away without the situation
disappearing at the same time.
Examples in case law of condition sine qua non: makali 1950 (1) SA 340 (N); Mokoena 1979 (1) PH H 13 (A); and
Minsiter van Polisie v Skosanna 1977 (1) SA 31 (A) 44
MOST NB!! In Daniels 1983 (3) SA 275 (A), the Appeal court decided that factual causation is determined on
the basis of the sconditio sine qua non theory.
Legal causation – general
Because of wide scope of factual causation that legal causation is needed.
Certain specific tests to determine legal causation:
1. Proximate cause
2. Adequate cause
3. Novus actus interviens
Courts are reluctant to use one of the 3 tests in all cases, instead they pick the one which they interpret to be
most useful.
Sometimes they can base a finding of legal causation on other considerations.
Theories of legal causation
Individualisation theories: we must look among all the factors that qualify as factual causes for the one that s
most proximate.
Objection to this approach: 2 or more conditions may operate in equal measure.
Today this test (proximate cause) finds little support.
Daniels 1983 (3) SA 275 (A) – majority of appeal court judges refused to accept causation by proximation.
