sexual health and human rights in the african region - The ICHRP

ights 579 under the Constitution. From the appellant’s side, the case implicated
his right to a fair trial under section 35(3) of the Constitution. The Magistrate
Court decided that the common law definition of rape was insufficient to protect
the fundamental rights of the complainant and, therefore, should be extended to
cover ‘acts of non-consensual sexual penetration of the male sexual organ into
the vagina or anus of another person’. According to the court, the common law
definition of rape was archaic and discriminatory, and yet a violation of an
individual’s constitutional rights through non-consensual anal penetration was
no less serious and no less humiliating than non-consensual penetration though
a vagina. It was part of the court’s reasoning that common law rape carried a
heavier sentence than common law indecent assault which the appellant
contended was the appropriate offence as common law rape did not recognize as
rape anal penetration. The appellant relied on the principle of legality and the
right to a fair trial under section 35(3) of the Constitution. The relevant
provisions of section 35(3) says:
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 that 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
[21] The Magistrate Court did not accept the legality argument. Instead, it found that
the principle of legality and appellant’s right to a fair trial under section 35(3) of
the Constitution had not been violated mainly for the following reasons: that
non-consensual anal penetration was manifestly an immoral act that was already
recognized by law as a crime, albeit, as indecent assault rather than rape; that the
appellant could have foreseen retroactive punishment as he knew that his
conduct constituted a crime; that non-consensual anal penetration was already
recognized by some jurisdictions as rape; and that societal interest in convicting
punishing the appellant of a more serious offence than indecent assault was a
weightier consideration that the appellant’s right to a fair trial.
[22] After convicting the appellant, the Magistrate Court referred the matter to the
High Court for sentencing pursuant to section 52 of the Criminal Law
Amendment Act of 1997. The High Court confirmed the conviction. Furthermore,
the High Court issued an order to the effect that: the common law definition of
rape is unconstitutional for the reasons given by the magistrate court; that the
579 Section 28 ibid.
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