Constitutional Law and Bill of Rights

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Questions and Answers

According to the Court, what was not a requirement for an accused at the time of the commission of an unlawful deed?

Knowing whether the offence is a common-law or a statutory offence (correct)

Showing remorse for the offence

Knowing the punishment for the offence

Knowing the exact legal terminology of the offence

What was proposed in the Criminal Law (Sexual Offences) Amendment Bill of 2007?

An extension of the definition of the crime of rape (correct)

A reduction of the punishment for rape

The introduction of a new crime of sexual assault

The abolition of the crime of rape

Which Constitutional provision empowers courts to develop the common law to give effect to a right in the Bill of Rights?

Section 8(3)(a) of the Constitution (correct)

Section 39(2) of the Constitution

Section 12 of the Constitution

Section 24 of the Constitution

What is the primary responsibility of the legislature, according to the Constitutional Court?

Law reform Signup and view all the answers

What is the significance of Section 39(2) of the Constitution in this case?

It empowers the courts to develop the common law Signup and view all the answers

What was X's ground for appealing against his conviction of rape to the Constitutional Court?

Violation of his right to a fair trial Signup and view all the answers

What was the significance of the High Court's extension of the definition of the crime of rape?

It was a development of the common law Signup and view all the answers

What is the significance of Section 8(3) of the Constitution in this case?

It empowers the courts to develop the common law Signup and view all the answers

What is the primary concern of the Constitutional Court in adapting the common-law definition of rape?

Protection of vulnerable and disadvantaged women Signup and view all the answers

What is the basis for the Constitutional Court's development of the common law?

The spirit, purport and objects of the Bill of Rights Signup and view all the answers

Why did the Constitutional Court extend the definition of rape?

To give effect to the rights of women to dignity, sexual autonomy, and privacy Signup and view all the answers

What is the limitation on developing the common law, according to the Constitutional Court?

That it can only be done prospectively Signup and view all the answers

What is the basis for the Constitutional Court's judgment on the definition of rape?

The facts of the case and the rights of women that are violated by the restricted definition of rape Signup and view all the answers

What is the significance of the Constitutional Court's judgment on the definition of rape?

It harmonises the common law with the spirit, purport and objects of the Bill of Rights Signup and view all the answers

What is the court's primary consideration in developing the common law?

The spirit, purport and objects of the Bill of Rights Signup and view all the answers

What is the consequence of not adapting the common-law definition of rape?

It would undermine the principles of the Constitution Signup and view all the answers

What is the provision in the Constitution that protects individuals from being convicted of an offence that was not a crime at the time it was committed?

Section 35(3)(l) of the Constitution Signup and view all the answers

What is the purpose of the Bill of Rights in the Constitution?

To bind the judiciary and organs of state Signup and view all the answers

In the Masiya case, what was the outcome of the Constitutional Court's ruling on the common-law definition of rape?

The definition was extended to include acts of non-consensual penetration of a penis into the anus of a female Signup and view all the answers

Why was the accused in the Masiya case not convicted of rape?

Because the Act did not apply retroactively Signup and view all the answers

What is the basis for the Constitutional Court's application of the ius praevium principle in the Masiya case?

The principle of non-retroactivity Signup and view all the answers

What is the significance of Section 8(1) of the Constitution?

It binds the legislature, the executive, and the judiciary Signup and view all the answers

What is the relationship between the Bill of Rights and legislation?

The Bill of Rights is superior to legislation Signup and view all the answers

What is the outcome when legislation violates the Bill of Rights?

The legislation is declared unconstitutional Signup and view all the answers

Study Notes

Court's Ruling on the Definition of Rape

The court argued that it is not necessary for an accused to know whether an act is a common-law or statutory offence, or the legal terminology, at the time of committing the act.

Extension of the Definition of Rape

The High Court extended the definition of rape, relying on provisions of the Constitution, specifically sections 8(3) and 39(2), which empower courts to develop the common law to give effect to rights in the Bill of Rights.
Section 8(3)(a) requires courts to apply or develop the common law to give effect to a right in the Bill of Rights, especially when legislation does not provide for it.
Section 39(2) obliges courts to promote the spirit, purport, and objects of the Bill of Rights when interpreting legislation or developing the common law.

Constitutional Court's Ruling

The Constitutional Court emphasized that the legislature is primarily responsible for law reform, but section 39(2) of the Constitution empowers courts to develop the common law.
The Court found that the common-law definition of rape needed to be adapted to comply with the provisions of the Bill of Rights, specifically the rights of women to dignity, sexual autonomy, and privacy.
The definition of rape was extended to include penetration of the anus of a female by a penis, to protect vulnerable and disadvantaged women.

Protection of Women's Rights

The Court was concerned about the protection of young girls who may not be able to differentiate between different types of penetration.
The Court held 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.

Development of the Common Law

The Court ruled that the principle of legality is not a bar to the development of the common law, and that the Constitution requires courts to ensure that the common law is infused with the spirit, purport, and objects of the Constitution.
However, the development of the common law must be done prospectively only.

Ius Praevium Rule

Section 35(3) of the Constitution sets out the ius praevium rule, providing 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 under national or international law at the time it was committed.
The Constitutional Court ruled that the extended definition of rape would be applied prospectively only, and therefore, the accused could not be convicted of rape, but only of indecent assault.

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Description

This quiz covers the relationship between the Bill of Rights and the development of common law, specifically in regards to the definition of rape and women's rights.