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Questions and Answers
What was the proposed extension to the definition of rape in the Criminal Law (Sexual Offences) Amendment Bill of 2007?
What was the proposed extension to the definition of rape in the Criminal Law (Sexual Offences) Amendment Bill of 2007?
What provision of the Constitution empowers courts to develop the common law?
What provision of the Constitution empowers courts to develop the common law?
What is the primary responsibility of the legislature in relation to law reform?
What is the primary responsibility of the legislature in relation to law reform?
What is the role of courts in developing the common law?
What is the role of courts in developing the common law?
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What is the purpose of Section 39(2) of the Constitution?
What is the purpose of Section 39(2) of the Constitution?
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What was X's ground for appealing against his conviction to the Constitutional Court?
What was X's ground for appealing against his conviction to the Constitutional Court?
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What is the relationship between the High Court and the Constitutional Court?
What is the relationship between the High Court and the Constitutional Court?
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What is the significance of Section 8(3)(a) of the Constitution?
What is the significance of Section 8(3)(a) of the Constitution?
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What is the role of the judiciary in law reform?
What is the role of the judiciary in law reform?
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What is the significance of the Constitutional Court's emphasis on the legislature's role in law reform?
What is the significance of the Constitutional Court's emphasis on the legislature's role in law reform?
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Study Notes
The Constitutional Court's Role in Developing Common Law
- The Constitutional Court has the power to develop common law when there is a deviation from the spirit, purport, and objects of the Bill of Rights.
Extension of the Definition of Rape
- The Constitutional Court found that the common-law definition of rape was not unconstitutional, but needed to be adapted to comply with the provisions of the Bill of Rights.
- The Court extended the definition of rape to include penetration of the anus of a female by a penis, to give effect to the rights of women to dignity, sexual autonomy, and privacy.
Protection of Women's Rights
- The Court focused on the rights of women, particularly young girls, who may not be able to differentiate between different types of penetration.
- The Court recognized that the trauma associated with non-consensual anal penetration is just as humiliating, degrading, and physically hurtful as that associated with non-consensual penetration of the vagina.
Principle of Legality and Prospective Application
- The Court held that the principle of legality is not a bar to the development of the common law.
- The Court ruled that the extended definition of rape would apply prospectively only, and not retroactively.
Ius Praevium Rule and Fair Trial
- The Constitution provides that every accused has a right to a fair trial, including the right not to be convicted of an offence that was not an offence at the time it was committed.
- The Constitutional Court ruled that the extended definition of rape would not apply to the accused, as it would violate his right to a fair trial under section 35(3)(l) of the Constitution.
Empowerment of Courts to Develop Common Law
- Sections 8(3) and 39(2) of the Constitution empower courts to develop the common law to give effect to a right in the Bill of Rights.
- The courts are required to promote the spirit, purport, and objects of the Bill of Rights when developing the common law.
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Description
The Constitutional Court's role in adapting the common-law definition of rape to comply with the Bill of Rights. This quiz explores the court's obligations in removing deviations from the spirit of the Bill of Rights.
