IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: A134/08

In the matter between:

DIRECTOR OF PUBLIC PROSECUTIONS,

WESTERN CAPE Appellant

and

ARNOLD PRINS Respondent

JUDGMENT DELIVERED ON 11 MAY 2012

_________________________________________________________

BLIGNAULT J:

Introduction

[1] Mr Arnold Prins (“respondent”) was indicted in the regional court at

Riversdale on a charge of contravening the provisions of section 5(1) of

the Criminal Law (Sexual Offences and Related Matters) Amendment

Act 32 of 2007 (“the Sexual Offences Act”) on 19 September 2009 by

touching the breasts and private parts of the complainant without her

consent.
 2

[2] Section 5(1) of the Sexual Offences Act reads as follows:

“5 Sexual assault

(1) A person ('A') who unlawfully and intentionally sexually

violates a complainant ('B'), without the consent of B, is guilty
of the offence of sexual assault.”

[3] Prior to the commencement of the trial respondent objected to the

charge sheet in terms of section 85 of the Criminal Procedure Act 51 of

1977. It was contended on his behalf that the charge does not disclose

an offence as section 5(1) of the Sexual Offences Act does not contain

any penalty for the alleged offence.

[4] The regional magistrate upheld respondent’s objection and

quashed the charge.

[5] The Director of Public Prosecutions, Western Cape (“appellant”)

thereupon appealed to this court against the decision of the regional

magistrate. A full court was constituted to hear the appeal.

[6] Mr L J Badenhorst appeared on behalf of appellant at the hearing

of the appeal. Mr P A Botha, assisted by Ms Y Isaacs, appeared on

behalf of respondent. The court is indebted to counsel for their helpful

submissions.
 3

[7] Mr Botha’s principal argument was based on the legality principle

in criminal law expressed in the maxim nulla poena sine lege (no

punishment without a law). The principle is to the effect that an accused

can only be punished in accordance with a fixed predetermined law.

Before discussing this principle it is, however, necessary to look at

certain relevant provisions of the Sexual Offences Act.

The Sexual Offences Act

[8) The Sexual Offences Act came into operation on 16 December

2007. In terms of section 68(1) thereof it repealed, inter alia, “the

common law relating to the crimes of rape, indecent assault, incest,

bestiality and violation of a corpse, insofar as it relates to the

commission of a sexual act with a corpse”.

[9] The Sexual Offences Act contains a preamble and an objects

clause. The thrust of the objects clause is contained in the following

parts of section 2:

“2 Objects

The objects of this Act are to afford complainants of sexual offences the
maximum and least traumatising protection that the law can provide, to
introduce measures which seek to enable the relevant organs of state to
give full effect to the provisions of this Act and to combat and, ultimately,
 4

eradicate the relatively high incidence of sexual offences committed in

the Republic by:

(a) Enacting all matters relating to sexual offences in a single

statute;

(b) criminalising all forms of sexual abuse or exploitation;

(c) repealing certain common law sexual offences and

replacing them with new and, in some instances, expanded
or extended statutory sexual offences, irrespective of
gender;…”

[10] Chapter 2 of the Sexual Offences Act is headed “Sexual Offences”.

It comprises sixteen (17) such offences, including the offence described

in section 5(1). Typical examples of these offences are “rape” as

described in section 3, “compelled rape” as described in section 4,

“sexual assault” as described in section 5, “compelled sexual assault”.

as described in section 6 and “compelled self-sexual assault” as

described in section 7. I quote these sections hereunder:

“3 Rape

Any person ('A') who unlawfully and intentionally commits an act of

sexual penetration with a complainant ('B'), without the consent of B, is
guilty of the offence of rape.

4 Compelled rape

Any person ('A') who unlawfully and intentionally compels a third person
('C'), without the consent of C, to commit an act of sexual penetration
 5

with a complainant ('B'), without the consent of B, is guilty of the offence

of compelled rape.

Sexual assault, compelled sexual assault and compelled self-sexual

assault (ss 5-7)

5 Sexual assault

(1) A person ('A') who unlawfully and intentionally sexually violates a

complainant ('B'), without the consent of B, is guilty of the offence
of sexual assault.

(2) A person ('A') who unlawfully and intentionally inspires the belief
in a complainant ('B') that B will be sexually violated, is guilty of
the offence of sexual assault.

6 Compelled sexual assault

A person ('A') who unlawfully and intentionally compels a third person

('C'), without the consent of C, to commit an act of sexual violation with
a complainant ('B'), without the consent of B, is guilty of the offence of
compelled sexual assault.

7 Compelled self-sexual assault

A person ('A') who unlawfully and intentionally compels a complainant

('B'), without the consent of B, to-

(a) engage in-

(i) masturbation;

(ii) any form of arousal or stimulation of a sexual nature

of the female breasts; or

(iii) sexually suggestive or lewd acts,

 6

with B himself or herself;

(b) engage in any act which has or may have the effect of
sexually arousing or sexually degrading B; or

(c) cause B to penetrate in any manner whatsoever his or her

own genital organs or anus,

is guilty of the offence of compelled self-sexual assault.

[11] Chapter 3 of the Sexual Offences Act is headed “Sexual Offences

against Children”. It comprises eight (8) such offences, for example

“Consensual sexual acts with certain children” and “Sexual exploitation

and sexual grooming of children”. Chapter 4 of the Sexual Offences Act

is headed “Sexual Offences against persons who are mentally disabled”.

It comprises four (4) such offences, for example “Sexual exploitation and

sexual grooming of persons who are mentally disabled”.

[12] A remarkable feature of the 29 sexual offences described in

chapters 2, 3 and 4 of the Sexual Offences Act is that not one of them

contains any penalty clause. The six examples of these offences,

quoted above, are in this regard typical of all of them. Only the offence

of rape, described in section 3 of the Sexual Offences Act, can be

distinguished from the other offences as penalties for it is dealt with in

section 51(2) of the Criminal Law Amendment Act 105 of 1997.

 7

[13] By contrast there are numerous provisions in the Sexual Offences

Act that create offences which do contain typical penalty clauses.

Section 38, for example, reads as follows:

“38 Offences and penalties

(1) (a) Any person who, with malicious intent lays a charge
with the South African Police Service in respect of an
alleged sexual offence and makes an application in
terms of section 30 (1), with the intention of
ascertaining the HIV status of any person, is guilty of
an offence and is liable on conviction to a fine or to
imprisonment for a period not exceeding three years.

(b) Any person who with malicious intent or who in a

grossly negligent manner discloses the results of any
HIV tests in contravention of section 37, is guilty of an
offence and is liable to a fine or to imprisonment for a
period not exceeding three years.
……

(2) An alleged offender who, in any manner whatsoever, fails

or refuses to comply with or avoids compliance with, or
deliberately frustrates any attempt to serve on himself or
herself, an order of court that he or she be tested for HIV, is
guilty of an offence and is liable on conviction to a fine or to
imprisonment for a period not exceeding three years.”

[14] Sections 45, 46, 47 and 48 of the Sexual Offences Act impose

certain obligations upon employers and employees with respect to the

National Register for Sex Offenders established in terms of the

 8

provisions of the Sexual Offences Act. Sub-section (3) in each case

contains a similar penalty clause save that the period of imprisonment is

seven years. Sections 48 (dealing with licence applications) and 48

which create offences in respect of fostering, kinship care-giving,

temporary safe care-giving, adoption of children or curatorship also

contain typical penalty clauses. Sections 50, 52 and 54 likewise contain

penalty clauses.

[15] Section 55 of the Sexual Offences Act can be described as a

hybrid provision. It reads as follows:

“55 Attempt, conspiracy, incitement or inducing another person to

commit sexual offence

Any person who-

(a) attempts;

(b) conspires with any other person; or

(c) aids, abets, induces, incites, instigates, instructs,

commands, counsels or procures another person,

to commit a sexual offence in terms of this Act, is guilty of an

offence and may be liable on conviction to the punishment to
which a person convicted of actually committing that offence
would be liable.”
 9

The nulla poena sine lege principle

[16] The nulla poena sine lege principle, with its concomitant, nullum

crimen sine lege (no crime without a law), constitute essential elements

of the doctrine of legality in criminal law. The nulla poena sine lege

principle has been described in Burchell Principles of Criminal Law 3rd ed

(2005) 99 as follows:

“Punishment is an integral part of the concept of a crime. Without the

liability to punishment there would be no distinction between penal and
non-penal laws. Thus it follows that ‘to render any act criminal in our
law, there must be some punishment affixed to the commission of the
act and where no law exists affixing such punishment there is no crime
in law.”

[17] In Fedsure Life Assurance Ltd and Others v Greater Johannesburg

Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC)

Chaskalson P, Goldstone J and O’Regan J (in a joint judgment)

described the nature and effect of the principle of legality in South

African law. See the following passages in their judgment:

“[56] These provisions imply that a local government may only act
within the powers lawfully conferred upon it. There is nothing
startling in this proposition - it is a fundamental principle of the
rule of law, recognised widely, that the exercise of public power is
only legitimate where lawful. The rule of law - to the extent at least
that it expresses this principle of legality - is generally understood
 10

to be a fundamental principle of constitutional law. This has been

recognised in other jurisdictions.

... … …

[58] It seems central to the conception of our constitutional order that the
Legislature and Executive in every sphere are constrained by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law. At least in this sense, then,
the principle of legality is implied within the terms of the interim
Constitution. Whether the principle of the rule of law has greater
content than the principle of legality is not necessary for us to decide
here. We need merely hold that fundamental to the interim Constitution
is a principle of legality.”

[18] In support of these statements regarding legality, the justices

referred, inter alia, to the following passage in Dicey Introduction to the

Study of the Law of the Constitution 10th ed 193, in which he formulated

what he described as the second of three “distinct though kindred

conceptions” of the rule of law:

“We mean in the second place, when we speak of the ''rule of law'' as a
characteristic of our country, not only that with us no man is above the
law, but (what is a different thing) that here every man, whatever be his
rank or condition, is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunals.”

[19] Dicey’s first conception of the rule of was formulated as follows in

the same work, 8th edition 1938:

 11

“We mean, in the first place, that no man is punishable or can be

lawfully made to suffer in body or goods except for a distinct breach of
law established in the ordinary legal manner before the ordinary Courts
of the land. In this sense the rule of law in contrasted with every system
of government based on the exercise by persons in authority of wide,
arbitrary, or discretionary powers of constraint.”

[20] Prof A S Mathews in The Rule of Law – A Reassesment in Fiat

Justilia Essays in Memory of Olivier Deneys Schreiner (1983) endorsed

Dicey’s propositions on legality. In a discussion of the manner in which

legality secures justice in the field of civil liberties, he said, inter alia, the

following:

“Legality requires that the qualifications or limitations on the basic

freedoms should be general, prospective, open and clear. Expressed
differently, restrictions on liberty that are over-broad, vague or
discriminatory will violate the legality principle and facilitate the erosion
of civil liberties. Where the restrictions are imposed by the criminal law,
legality is expressed in the maxim nullum crimen sine lege; but the
principle of a narrow and precise definition of legal inroads into freedom
is equally applicable when they are imposed outside the criminal law by
executive action or in terms of private law. Freedom through legality
means, in a nutshell, that the law’s constraints will be narrow and
precise”.

[21] The existence in our law of the nulla poena sine lege principle was

endorsed in the judgment of Ackermann J in S v Von Molendorff and

 12

Another 1987 (1) SA 135 (T) at 169 C-J. In S v Malgas 2001 (2) SA

1222 (SCA) para 2 Marais JA described it thus:

“… …Parliament is obviously empowered to create new offences and

abolish old ones (whether they were statutorily created or originated in
the common law) and to provide for the penalties courts may impose.
………

.No court exercising criminal jurisdiction in South Africa could

convincingly claim to be the sole constitutional repository of power to do
such things. Indeed, the courts have no inherent power to do any such
thing. They cannot create new crimes. Nor can they invent a new kind
of penalty such as, for example, physical detention under lock and key
at some place other than a prison.”

[22] The nulla poena sine lege principle was reaffirmed in the judgment

of Ackermann J (this time in the Constitutional Court) in S v Dodo 2001

(3) SA 382 (CC) para [13]:

“… the nature and range of any punishment, whether determinate or

indeterminate, has to be founded in the common or statute law; the
principle of legality nulla poena sine lege requires this. This principle
was in fact endorsed in Malgas. Even the exercise of the Court's
'normative judgment' [S v Dzukuda and Others; S v Tshilo 2000 (4) SA
1078 (CC)] in determining the nature and severity of the sentence within
the options permitted by law has to be judicially exercised; it is not
unfettered. This was and is true of all sentencing, not merely in the
case of the most severe sentences. Statutes abound which limit court
powers, even those of a High Court, to impose sentences relating to, for
 13

example, the extent of the punishment, the circumstances under which

it may be imposed or when execution thereof may be suspended.”

[23] In support of the affirmation of the nulla poena sine lege principle

Ackermann J referred, inter alia, to De Wet and Swanepoel Die Suid-

Afrikaanse Strafreg 4th ed 44 - 47. This work contains a full discussion of

the nullum crimen sine lege and nulla crimen sine lege principles. The

authors state, inter alia, that it is generally accepted in Western

European countries with their codified legal systems that no act is

punishable unless it is contained in a law. This statement is supported

by an impressive array of authorities.

[24] The nulla poena sine lege principle is applied in other countries. In

Emmerson et al Human Rights and Criminal Justice 2nd edition (2007)

para 10.06 it is said that the principle is embedded in English law. The

authors quote, inter alia, the following passage in Professor Glanville

Williams’ work Criminal Law The General Part second edition (1961)

575:

“‘Englishmen are ruled by the law, and by the law alone’, wrote Dicey. ‘A
man may with us be punished for breach of law, but he can be punished
for nothing else’. In its Latin dress of nullum crimen sine lege, Nulla
Poena sine lege – that there must be no crime or punishment except in
accordance with fixed, predetermined law – this has been regarded by
most thinkers a self-evident principle of justice ever since the French
Revolution. The citizen must be able to ascertain beforehand how he
 14

stands with regard to the criminal law; otherwise to punish him for
breach of that law is purposeless cruelty.”

[25] The judgment of Lord Bingham in the House of Lords in R v

Rimmington [2005] UKHL 63 para [33] contains a description of the

development and application of the principle in the English common law.

He summarised the position as follows, in para 33:

“33 There are two guiding principles: no one should be punished

under a law unless it is sufficiently clear and certain to enable him
to know what conduct is forbidden before he does it; and no one
should be punished for any act which was not clearly and
ascertainably punishable when the act was done. If the ambit of a
common law offence is to be enlarged, it "must be done step by
step on a case by case basis and not with one large leap": R v
Clark (Mark) [2003] EWCA Crim 991, [2003] 2 Cr App R 363, para
13.”

[26] In Uttley, R (on the application of) v Secretary of State for the

Home Department [2004] UKHL 38 (30 July 2004) Lord Rodger, in para

[39], provided a short history of the development of the nulla poena sine

lege principle:

“These and similar provisions embody a principle of comparatively

modern origin: there can be no room for it in legal systems which do not
use statutes to prescribe a particular punishment or range of
punishments for individual offences, but rely instead on the court to
choose the appropriate punishment for any given offender. That was
 15

once the case with most legal systems. Therefore, although traces of
the doctrine can be found in the writings of Bartolus de Saxoferrato in
the 14th century (Commentaria ad digestum vetus, de iustitia et iure,
1.9.49 - 51), it really came to prominence only towards the end of the
18th century when developments in constitutional thinking led to the
idea that crimes and their punishments should be regulated by statutes
passed by the legislature. Article 8 of the French Declaration of the
Rights of Man 1791 famously proclaimed that "nul ne peut être puni
qu'en vertu d'une loi établie et promulguée antérieurement au délit et
légalement appliquée." Ten years later, in his Lehrbuch des gemeinen in
Deutschland geltenden peinlichen Rechts, p 20, para 24, von
Feuerbach gave the principle its familiar and enduring Latin form, nulla
poena sine lege. From these beginnings the principle came to be
generally recognised and eventually to take its place in many
constitutions, as well as, for example, in article 7(1) of the European
Convention on Human Rights and article 15 of the International
Covenant on Civil and Political Rights.”

[27] In R v Rimmington supra para 34 Lord Bingham also summarised

the application of the nulla poena sine lege principle in the case law of

the European Court of Human Rights with respect to the European

Convention of Human Rights (“the Convention”):

“34 These common law principles are entirely consistent with article
7(1) of the European Convention, which provides:

‘No punishment without law

(1) No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute
a criminal offence under national or international law at
 16

the time when it was committed. Nor shall a heavier

penalty be imposed than the one that was applicable
at the time the criminal offence was committed.’

The European Court has repeatedly considered the effect of this

article, as also the reference in article 8(2) to "in accordance with
the law" and that in article 10(2) to "prescribed by law".

35 The effect of the Strasbourg jurisprudence on this topic has been

clear and consistent. The starting point is the old rule nullum
crimen, nulla poena sine lege (Kokkinakis v Greece (1993) 17
EHRR 397, para 52; SW and CR v United Kingdom (1995) 21
EHRR 363, para 35/33): only the law can define a crime and
prescribe a penalty. An offence must be clearly defined in law
(SW and CR v United Kingdom), and a norm cannot be regarded
as a law unless it is formulated with sufficient precision to enable
the citizen to foresee, if need be with appropriate advice, the
consequences which a given course of conduct may entail
(Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49;
G v Federal Republic of Germany (1989) 60 DR 256, 261, para
1; SW and CR v United Kingdom, para 34/32).
………

Article 7 precludes the punishment of acts not previously

punishable, and existing offences may not be extended to cover
facts which did not previously constitute a criminal offence (ibid).’”

[28] The principles summarised by Lord Bingham are consistently

applied in decisions of the European Court of Human Rights. See, for

example, Scoppola v Italy (No 2) [2009] ECHR 1297 paras [92] and

[93].
 17

“92. The guarantee enshrined in Article 7, which is an essential

element of the rule of law, occupies a prominent place in the
Convention system of protection, as is underlined by the fact that
no derogation from it is permissible under Article 15 of the
Convention in time of war or other public emergency. It should be
construed and applied, as follows from its object and purpose, in
such a way as to provide effective safeguards against arbitrary
prosecution, conviction and punishment (see S W v the United
Kingdom and C R v the United Kingdom, 22 November 1995,
para 34 and 32 respectively, Series A nos 335-B and 335-C, and
Kafkaris, cited above, para 137).

93. Article 7 para 1 of the Convention goes beyond prohibition of the

retrospective application of criminal law to the detriment of the
accused. It also sets forth, more generally, the principle that only
the law can define a crime and prescribe a penalty (nullum
crimen, nulla poena sine lege). While it prohibits in particular
extending the scope of existing offences to acts which previously
were not criminal offences, it also lays down the principle that the
criminal law must not be extensively construed to an accused’s
detriment, for instance by analogy (see, among other authorities,
Coëme and Others v Belgium, nos. 32492/96, 32547/96
32548/96, 33209/96 and 33210,96, para 145, ECHR 2000 VII).”

[29] In the matter of Reference re ss. 193 and 195.1(1)(c) of the Criminal

Code (Man.) [1990] 1 S.C.R. 1123, a judgment of the Supreme Court of

Canada, Lamer J quoted from two decisions of the Supreme Court of the

United States and then said the following:

 18

“The principles expressed in these two citations are not new to our law. In
fact they are based on the ancient Latin maxim nullum crimen sine lege,
nulla poena sine lege -- that there can be no crime or punishment unless
it is in accordance with law that is certain, unambiguous and not
retroactive. The rationale underlying this principle is clear. It is essential
in a free and democratic society that citizens are able, as far as is
possible, to foresee the consequences of their conduct in order that
persons be given fair notice of what to avoid, and that the discretion of
those entrusted with law enforcement is limited by clear and explicit
legislative standards (see Professor L.Tribe American Constitutional Law
(2nd ed. 1988), at p. 1033). This is especially important in the criminal
law, where citizens are potentially liable to a deprivation of liberty if their
conduct is in conflict with the law.”

[30] The nulla poena sine lege principle has also been applied by the

High Court of Australia. See Polyukhovich v The Commonwealth of

Australia and Another [1991] HCA 32 para 103:

“103. I do not accept the submission of the Commonwealth in the

absolute terms in which it was proffered. In legislation, judicial
decisions and statements of principles, both of municipal and
international law, there has emerged a general abhorrence of
retroactive criminal law. The notion that there should be no crime
or punishment, except in accordance with law, was recognized as
early as 1651, when Hobbes wrote:

‘No law, made after a fact done, can make it a crime ...
For before the law, there is no transgression of the law’:
 19

Leviathan, (1651), Chs.27-28, quoted in Glanville Williams,

Criminal Law: The General Part, 2nd ed. (1961) (hereafter
"Williams"), p 580.

[31] I conclude, therefore, that the nulla poena sine lege principle, as an

integral element of the legality doctrine, is firmly established as part of the

South African legal system.

An implied provision of the Constitution?

[32] I have thus far dealt with nulla poena sine lege as a principle of the

common law. I now turn to the provisions of the Constitution of the

Republic of South Africa 1996 (“the Constitution”). In Fedsure the

justices held that “the principle of legality is implied within the terms of

the interim Constitution”. It seems to me that there is no distinction in

principle to be drawn in this regard between Dicey’s second conception

of legality that was under consideration in that case and his first

conception of legality which is reflected in the nulla poena sine lege

principle.

[33] The rule of law is one of the founding values of the Constitution.

Section 1(c) thereof reads as follows:

 20

“1 Republic of South Africa

The Republic of South Africa is one, sovereign, democratic state

founded on the following values:

(a) Human dignity, the achievement of equality and the

advancement of human rights and freedoms.

(b) Non-racialism and non-sexism.

(c) Supremacy of the constitution and the rule of law.

(d) Universal adult suffrage, a national common voters roll,

regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and
openness.”

[34] I agree in this regard with the views expressed by Burchell

Principles of Criminal Law 3rd edition (2005) 106:

“The principle of legality is the juristic kernel of the Rule of Law in the
context of the criminal law. The founding provisions of the Constitution
of the Republic of South Africa, 1996, refer to the ‘rule of law’ and so
any aspects of the principle of legality not specifically referred to in the
Constitution could be read into the Constitution by an interpretation of
the ambit of the Rule of Law.”

[35] The provisions of sub-sections 35(3)(l) and (n) of the Constitution

also support an interpretation that the nulla poena sine lege principle is

an implied provision of the Constitution. They read as follows:

 21

“(3) Every accused person has a right to a fair trial, which includes the
right-
………
(l) not to be convicted for an act or omission that was not an
offence under either national or international law at the time
it was committed or omitted;
… … ….
(n) to the benefit of the least severe of the prescribed
punishments if the prescribed punishment for the offence
has been changed between the time that the offence was
committed and the time of sentencing;”

[36] The provisions of sub-sections 35(3)(l) and 35(3)(n) of the

Constitution, read together, are similar to those of Article 7(1) of the

Convention. According to the interpretation of Article 7(1) by the

European Court of Human Rights, it does not only prohibit the

retrospective application of the offence and the punishment. It also sets

forth the principle that only the law can define a crime and prescribe a

penalty (nullum crimen, nulla poena sine lege).

[37] In my view sub-sections 35(3)(l) and 35(3)(n) of the Constitution

must be interpreted in the same manner. This interpretation follows from

a literal application of the words used. As to sub-section 35(3)(l): A

statute which does not describe a crime would not be “an offence under

either national or international law at the time it was committed”. The

 22

principle nullum crimen sine lege would therefore apply, independently of

any question of retrospectity.

[38] Sub-section 35(3)(n) of the Constitution only refers to a conviction,

crimen, and not to punishment, poena. This sub-section, however,

requires that a comparison be made between the “prescribed

punishment” at the time that the offence was committed and the

“prescribed punishment” at the time of sentencing. On a proper

interpretation of the concept “prescribed punishment” it means, in my

view, prescribed by law. The application of the sub-section thus

presupposes that a punishment must be prescribed by law on both

occasions. If a punishment is not prescribed by law, as in the present

case, this provision would, to the detriment of the accused, not be

capable of implementation.

[39] I am accordingly of view the nulla poena sine lege principle should

be regarded as an implied provision of the Constitution.

Submissions on behalf of appellant

[40] Mr Badenhorst, on behalf of appellant, relied strongly on the

judgment of Mason J in R v Forlee 1917 TPD 52. The appellant in that

case had been indicted in terms of a statute which forbade the selling
 23

and possession of opium. His main ground of appeal was that the

statute in question contained no penalty clause. Mason J referred to a

number of Roman Dutch writers and expressed the view that where an

act is definitely prohibited in a manner which makes it clear that the

legislature was not exhorting or advising, then it is punishable at the

discretion of the judge where the law has not itself attached any penalty.

He stated that the same principles had been followed in England as well

as in three decisions of the Cape and Natal courts, namely R v Berg 1

Searle 93, R v Lloyd 1904 25 NLR 59 and R v Mhlongo 1910 31 NLR 1.

Mason J concluded that as the act in question had been expressly

prohibited in the public interest and with the evident intention of

constituting an offence, it was punishable at the discretion of the judge.

[41] R v Forlee was followed in this court in R v Langley 1931 CPD 31

and R v Baraitser 1931 CPD 418 but these decisions did not refer to any

new principle or authority and they did not take the matter any further.

Neither judgment discussed or referred to the nulla poena sine lege

principle. The issue was also referred to in R v Zinn 1946 AD 346 at

354-355 but the court did not find it necessary to decide it.

[42] In my view R v Forlee cannot be regarded as good law. De Wet en

Swanepoel op cit 46-47 subjected the judgment to trenchant criticism.

They pointed out that it relied on outdated opinions of Roman Dutch

 24

writers whilst ignoring the later and more enlightened views of Van der

Linden. In S v Francis 1994 (1) SACR 350 (C) at 355 d – g Ackermann J

referred to some the criticism of Forlee. He said that in his opinion there

was considerable justification for such criticism. For purposes of that

decision, however, he found that it was not necessary to take the matter

further.

[43] R v Forlee, I may add, ignored the nulla poena sine lege principle

or the considerations underlying it. The notion that punishment should in

each case be left at the discretion of the judge is indeed the antithesis of

the nulla poena sine lege principle. In my view, moreover, such the

decision cannot be justified in terms of any recognised rule of the

interpretation of statutes.

[44] Apart from R v Forlee, Mr Badenhorst argued that the law is

correctly stated in the following passage in Milton and Cowling South

African Criminal Law and Procedure Volume III Statutory Offences 2nd

edition para 1-20:

“It is fundamental to any civilized system of criminal law that punishment

is not inflicted except in respect of a contravention of the law previously
defined as a crime (nulla poena sine lege). Conversely, the doctrine of
legality requires that in criminalizing conduct the legislature should
specify the penalty for the offence (nulla crimen sine poena). This
principle is, however, by no means universally observed. It is true that
 25

more often than not the legislature in criminalizing conduct will specify
the penalty attached to a contravention of the enactment. However,
failure so to specify is not regarded as a serious flaw in the legislation.
In such a case, it is presumed that the determination of the appropriate
punishment has been left to the courts. To the extent that the courts
habitually exercise such a discretion in the punishment of common-law
crimes, this practice is not objectionable.”

[45] In my view this passage is not convincing. It is firstly a contradictio

in terminis to describe a principle as “fundamental to any civilized system

of criminal law” and then to say that non-compliance with that principle is

not a “serious flaw”. Apart from R v Forlee, the authors do not cite any

judgment in support of their statement nor do they provide any analysis

of the nulla poena sine lege principle. It seems to me, upon analysis,

that the views expressed in this passage are simply the result of an

unsuccessful attempt to reconcile the nulla poena sine lege principle with

R v Forlee.

[46] Appellant’s counsel also relied on the judgment in S v Booi [2010]

ZAFSHC 91 (12 August 2010). This matter came before two judges in

the Free State High Court by way of an automatic review in terms of

section 302 of the Criminal Procedure Act 51 of 1977. The accused had

been convicted of contravening section 15 of the Sexual Offences Act ie

consensual sexual penetration with a child. The judges invited and

received a written response from the Director of Public Prosecutions in

 26

regard to the effect of the absence of a penalty clause in the section. In

the judgment only brief mention was made of the nulla poena sine lege

principle without any discussion thereof. After referring to the above-

quoted passage in Milton and Cowling and to R v Forlee, the judges

decided that the sentence fell within the discretion of the magistrate.

[47] I do not, with respect, find the judgment in S v Booi persuasive. It

should be noted first that no-one was invited to argue this issue, which

is, on any version, a difficult one, on behalf of the accused. The

judgment, furthermore, refers to R v Forlee with approval but it ignores

the subsequent criticism of it. It contains no analysis of the nulla poena

sine lege principle or any reference to Ackermann’s judgment in S v

Dodo.

[48] Mr Badenhorst also placed reliance upon two rules of the

interpretation of statutes, namely (i) the avoidance of absurd results (cf S

and Another v Regional Magistrate: Venter and Another 2011 (2) SACR

274 (CC) and (ii) the presumption that the legislature acts rationally (cf

Principal Immigration Officer v Bhula 1931 AD 337). Applying these two

rules, he submitted, the court should adopt an interpretation of section

5(1) of the Sexual Offences Act that would avoid the unfortunate

consequences if the section cannot be enforced.

 27

[49] It seems to me, however, that these rules of interpretation do not

assist appellant. They are in the first place presumptions and would only

apply where a particular word or phrase in a statute is ambiguous. See

Adampol (Pty) Ltd v Administrator, Tvl 1989 (3) SA 800 (A) 809F-H. The

presumptions cannot be used to rewrite or complete any piece of

legislation. It is, secondly, not correct to judge questions of absurdity or

rationality in the light of the possible consequences of a decision that

section 5(1) of the Sexual Offences Act cannot be enforced at this stage.

The question is whether the section, as it was promulgated and still

stands, discloses a defence or not.

[50] Mr Badenhorst argued that the legislature intended to leave the

question of punishment at the discretion of the court. Mr Botha, for

respondent, asked rhetorically: If that were the intention, why did the

legislature not say so? I agree. Mr Badenhorst, furthermore, did not cite

any authority (apart from R v Forlee) to support such a radical departure

from the words of the statute. The concept of conferring such a

discretion on the court would also contradict and totally undermine the

nulla poena sine lege principle.

 28

Was the omission of a penalty clause a mistake?

[51] The question whether the omission of a penalty clause in section

5(1) of the Sexual Offences Act was not perhaps a mistake, was raised

in argument. In that event it might be suggested that the casus omissus

rule should be applied. A casus omissus can be described as a

contingency not provided for by the legislature or, put differently, a gap in

the statute that has not been filled.

[52] There is a clear pattern in the Sexual Offences Act, namely that all

the sections creating sexual offences are without penalty clauses whilst

the sections creating less serious offences do contain penalty clauses.

The only exception to the pattern is to be found in section 55 of the

Sexual Offences Act, quoted in para [15] above, which deals with the

position of accomplices and the like with respect to sexual offences.

Section 55 does contain a penalty clause but it is meaningless because

it refers to “the punishment to which a person convicted of actually

committing that offence would be liable.”

[53] This pattern in the Sexual Offences Act creates an almost

irrebuttable inference that the omission of penalty clauses with respect to

the sexual offences was intentional. In that event, however, it must be

accepted that the words of the statute reflected the true intention of the
 29

legislature. As such they fundamentally contradict and undermine the

nulla poena sine lege principle.

[54] A possible alternative solution is that the casu omissus rule may

find application. The requirements for the application of the rule are

strict. I dealt with them in my judgment in Mercedes Benz Financial

Services South Africa (Pty) Ltd v Dunga 2011 (1) SA 374 (WCC). It

appears from this judgment and the authorities mentioned therein that

the rule can only be applied if there is certainty as to the real intention of

the legislature. Its intention, it has been said, must be indisputable. In

the light of the authorities mentioned in S v Tieties 1990 (2) SA 461 (AD)

463 E-J, I summarised the position as follows:

“[22] It seems to me therefore that it would be permissible to provide

for a casus omissus if the intention of the legislature is clear. If
that intention is only the subject of surmise, speculation,
expectation or even probability, this method of interpretation is not
allowed.”

On the issue of a casus omissus, I may mention, the Dunga judgment

was referred to with approval in Collett v Firstrand Bank Ltd 2011 (4) SA

508 (SCA) para [17].

[55] In the present case there is, in my view, two reasons why the

casus omissus rule can not be applied. In the first place it is an essential
 30

element of the crime itself that it is required to be filled in. The reason

for the nulla poena sine lege principle is to inform the citizens of the

consequences of any proposed course of conduct and to enable the

courts to avoid the imposition of arbitrary penalties. The filling in of a

word or phrase in section 5(1) of the Sexual Offences Act in order to

describe a punishment would be totally inconsistent with such a reason.

[56] The second reason why the casus omissus rule does not apply, is

that there is no certainty as to what the legislature intended if the

omission had been a mistake. There is not even a probability. It would a

matter of speculation. This becomes obvious when one considers, for

example, what word or phrase is required to be inserted in section 5(1)

of the Sexual Offences Act, and in the other sections creating sexual

offences, in order to reflect the suggested intention of the legislature.

Penalties may consist of fines or imprisonment or both. Penalties may

include maximum or minimum limitations and the conditions for the

relaxation of both.

Conclusion

[57] I am accordingly of the view that the regional magistrate was

correct in deciding that the charge against respondent did not disclose

an offence.
 31

[58] In the premises, the appeal is dismissed.

___________________
A P BLIGNAULT

FORTUIN J: I agree
____________________
C M FORTUIN

MANTAME J: I agree
____________________
B P MANTAME