Bill of Rights and Common Law

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.