The DPP and amici substantially supported the judgment of the High Court, arguing that the definition perpetuates gender inequality and promotes discrimination.
As such, raptus in Roman law was generally understood as an offence consisting of the violent "carrying away" of women, and is better translated, in Nkabinde J's view, as "abduction.
Roman-Dutch law placed force at the centre of the definition, with the concomitant requirement of "hue and cry" to indicate a woman's lack of consent.
With the advent of South Africa's constitutional dispensation, based on the democratic values of human dignity, equality and freedom, the social foundation of these rules had, in Nkabinde J's view, disappeared.
The generally accepted definition of rape, according to Heath J in S v Ncanywa,[3] was "the (a) intentional (b) unlawful (c) sexual intercourse with a woman (d) without her consent."
What is required then is for the definition to be extended instead of being eliminated so as to promote the spirit, purport and objects of the Bill of Rights.Moreover, continued Nkabinde J, the current law of rape has been affected by statutory developments in recent decades.
To this end, women in South Africa and the rest of the world have mobilised against the patriarchal assumption that underlay the traditional definition of rape.
It is now widely accepted that sexual violence and rape not only offend the privacy and dignity of women but also reflect the unequal power relations between men and women in our society.The facts of the present matter, Nkabinde J determined, did not require the court to consider whether or not the definition of rape should be extended to include non-consensual penetration of the male anus by a penis.
Arguments were presented to the court, which Nkabinde J considered to be strong, to the effect that gender specificity in relation to rape reflected patriarchal stereotypes inconsistent with the Constitution.
The question of the development of the common law was discussed ("comprehensively," to Nkabinde J's mind) by Ackermann and Goldstone JJ in Carmichele v Minister of Safety & Security, in which was stressed the duty of the courts derived from sections 7, 8(1), 39(2) and 173 of the Constitution.
The court also repeated with approval the remarks of Iacobucci J in R v Salituro: Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country.
Nkabinde J said that the Minister may have been right to contend that the Regional Court should have decided the guilt or otherwise of Mr Masiya on the facts, without considering the constitutional issue of developing the definition of rape: "That might well have been the proper way to deal with the matter.
Nonconsensual anal penetration of women and young girls is a form of violence against them equal in intensity and impact, Nkabinde J found, to that of non-consensual vaginal penetration: The object of the criminalisation of this act is to protect the dignity, sexual autonomy and privacy of women and young girls as being generally the most vulnerable group in line with the values enshrined in the Bill of Rights—a cornerstone of our democracy.Nkabinde J believed that the extended definition would protect the dignity of survivors, especially young girls who may not be able to differentiate between the different types of penetration.
She noted in addition that one of the social contexts of rape is the alarming high incidence of HIV-infection: "Anal penetration also results in the spread of HIV."
The inclusion of penetration of the anus of a female by a penis in the definition will increase the extent to which the traditionally vulnerable and disadvantaged group will be protected by and benefit from the law.
I]t may nonetheless be said that there is no rule of positive law which would forbid our Supreme Court from departing from that practice.Indeed, as Kentridge AJ pointed out, members of the Judicial Committee of the House of Lords in the United Kingdom have accepted that it may be appropriate, when the interests of justice require it, for a new rule of law developed by the courts to operate prospectively only.
Lord Slynn of Hadley reasoned that "there may be decisions in which it would be desirable, and in no way unjust, that the effect of judicial rulings should be prospective or limited to certain claimants."
Nkabinde J continued, "One of the central tenets underlying the common-law understanding of legality is that of foreseeability—that the rules of criminal law are clear and precise so that an individual may easily behave in a manner that avoids committing crimes."
In coming to its decision, the court emphasised the distinction between reinterpretation and clarification of the common law, on the one hand, and the creation, on the other, of a new common-law offence.
It appeared to Nkabinde J that the court found the surprise element entailed by the retroactive application of the common law to be an unacceptable feature in that case.
That there was uncertainty as to the width of the exceptions is apparent from the Law Commission Working Paper examining the question [....]While there was no express authority for the proposition that an implied agreement of separation between husband or wife or unilateral withdrawal of consent by the wife would bring a case outside the marital immunity, the Commission takes the view that in the present case where the applicant's wife had withdrawn from cohabitation and there was de facto separation with the expressed intention of both to seek a divorce, there was a basis on which it could be anticipated that the courts could hold that the notional consent of the wife was no longer to be implied [.... T]he Commission considers that this adaptation in the application of the offence of rape was reasonably foreseeable to an applicant with appropriate legal advice.Section 35(3)(l) of the Constitution, wrote Nkabinde J, confirmed a long-standing principle of the common law: Accused persons may not be convicted of offences where the conduct for which they are charged did not constitute an offence at the time it was committed.
In Veldman v Director of Public Prosecutions, Witwatersrand Local Division, the court held that the principle of legality is central to the rule of law under the Constitution.
In this case, it can hardly be said that Mr Masiya was indeed aware, foresaw or ought reasonably to have foreseen that his act might constitute rape as the magistrate appears to suggest.
It follows therefore that he cannot and should not bear adverse consequences of the ambiguity created by the law as at the time of conviction.The evidence adduced at the trial established that Mr Masiya was guilty of indecent assault.
Such a referral might mitigate the disadvantageous factors discussed above.The suggestion by the High Court that magistrates are empowered to vary the elements of crimes in the light of the Constitution was therefore, in the opinion of Nkabinde J, incorrect.
The regional court is obliged, when considering an appropriate punishment, to apply its mind to the nature and gravity of the offence of which Mr Masiya has been convicted and not merely look at the legal definition thereof.
According to him, the new, broader definition of common-law rape must be so wide as to include nonconsensual sexual penetration of the anus of either a female or a male.
Thus the definition of housebreaking may be extended to include acts whereby a person breaks into a motor car (conduct which presently does not qualify as housebreaking because a motor car is a movable thing); the definition of arson may be extended to include cases in which one sets fire to a movable object such as a motor car or a railway truck (conduct which presently does not qualify as arson); and the definition of such a well-known crime as theft may now be extended to include cases in which one appropriates non-corporeal things, such as a tune, an idea, an architectural plan, or a plot of a story.
[6]Section 39(2) of the Constitution, on which the court relied, could not be used, in Snyman's view, as an argument to circumvent the clear provisions of subsections 35(3)(l) and (n), which prohibited the creation of new crimes or the extension of the scope of existing ones.
According to Snyman, The court wrongly uses what it calls "the incremental development of the common law" as a vehicle to evade the clear provisions of section 35 of the Bill of Rights.