Study Unit 2
Principle of Legality as entrenched in
Constitution
Concept of legality
Determining criminal liability, Q 1 – whether type of conduct allegedly committed by X is recognised
by law as a crime. Note: even if prohibited only by law it not necessarily constitute a crime, may lead
to civil action, certain admin measure being taken place etc. Principle of legality = nullum crimen
sine lege = no crime without legal provision – contained in s 35 (3) (1) of Constitution.
Definition of concept of legality: an accused may not be convicted of a crime & sentenced unless the
conduct of his charge –
Has been recognised by law – court may not create a crime – ius acceptum – law as it has
been received to date. Application of this rule to different crimes:
1. Statutory crimes (created in acts in parliament) to which principle of legality can fully
apply if it expressly declares that:
a. Particular conduct is a crime
b. What punishment a court must impose upon conviction of such a crime
Legal norm in act: provision creating a legal rule
Criminal norm in act: provision that makes clear that certain conduct constitutes a
crime
Criminal sanction in act: provision stipulating what punishment a court must impose
after conviction of a crime.
2. Common-law crimes – crimes which aren’t defined in legislation, but transferred
from generation to generation by common law. List of common law crimes is closed,
and existing crimes cannot be expanded.
a. Where no provision of common law declaring certain conduct a crime,
courts have held that there can be no crime.
In clear terms – ius certum – “clear law” rule that crimes + punishment ought not to be
formulated vaguely. Inferred from general right to a fair trial guaranteed in s 35 (3)
Before the conduct took place – ius praevium – law that already exists. Conduct should be
recognised as a crime at the time of its commission s 35 (3) (1). Punishment that is increased
after the commission of the crime may not be imposed to detriment of an accused s 35 (3)
(n).
Without necessity to interpret the words in the definition of the crime broadly – ius
strictum – strict law, court must interpret the law + its punishment narrowly rather than
broadly. Inferred from general right to fair trial guaranteed in s 35 (3).
If convicted, not be sentenced unless sentence complies with set out above. – nullum
crimen sine poena legali (nulla poena) – there can be no crime without a legal penalty.
When legislator prohibits a certain conduct, but doesn’t proscribe punishment, it is an
incomplete definition, it lacks element of legality (punishment by the state)
Principle of Legality as entrenched in
Constitution
Concept of legality
Determining criminal liability, Q 1 – whether type of conduct allegedly committed by X is recognised
by law as a crime. Note: even if prohibited only by law it not necessarily constitute a crime, may lead
to civil action, certain admin measure being taken place etc. Principle of legality = nullum crimen
sine lege = no crime without legal provision – contained in s 35 (3) (1) of Constitution.
Definition of concept of legality: an accused may not be convicted of a crime & sentenced unless the
conduct of his charge –
Has been recognised by law – court may not create a crime – ius acceptum – law as it has
been received to date. Application of this rule to different crimes:
1. Statutory crimes (created in acts in parliament) to which principle of legality can fully
apply if it expressly declares that:
a. Particular conduct is a crime
b. What punishment a court must impose upon conviction of such a crime
Legal norm in act: provision creating a legal rule
Criminal norm in act: provision that makes clear that certain conduct constitutes a
crime
Criminal sanction in act: provision stipulating what punishment a court must impose
after conviction of a crime.
2. Common-law crimes – crimes which aren’t defined in legislation, but transferred
from generation to generation by common law. List of common law crimes is closed,
and existing crimes cannot be expanded.
a. Where no provision of common law declaring certain conduct a crime,
courts have held that there can be no crime.
In clear terms – ius certum – “clear law” rule that crimes + punishment ought not to be
formulated vaguely. Inferred from general right to a fair trial guaranteed in s 35 (3)
Before the conduct took place – ius praevium – law that already exists. Conduct should be
recognised as a crime at the time of its commission s 35 (3) (1). Punishment that is increased
after the commission of the crime may not be imposed to detriment of an accused s 35 (3)
(n).
Without necessity to interpret the words in the definition of the crime broadly – ius
strictum – strict law, court must interpret the law + its punishment narrowly rather than
broadly. Inferred from general right to fair trial guaranteed in s 35 (3).
If convicted, not be sentenced unless sentence complies with set out above. – nullum
crimen sine poena legali (nulla poena) – there can be no crime without a legal penalty.
When legislator prohibits a certain conduct, but doesn’t proscribe punishment, it is an
incomplete definition, it lacks element of legality (punishment by the state)
