Written by: Nash Ricky Mogale

26 June 2023

INTRODUCTION

The fairness of a criminal law system is a fundamental concern in any society, as it shapes perceptions of justice and equality under the law. In the context of South Africa, a nation striving for a just and inclusive society, assessing the fairness of the criminal law system is of paramount importance. This article delves into the intricate dynamics and key considerations surrounding the South African criminal law system to evaluate its fairness.

CAN WE SAFELY SAY THAT THE SOUTH AFRICAN CRIMINAL JUSTICE SYSTEM IS FAIR?

The perception of fairness in a criminal justice system can vary among individual members of the public and may be influenced by personal experiences, biases, and expectations.

In the case of South Africa, like in any other country, the fairness of the criminal justice system is a subject of ongoing debate and critique. While the system aims to uphold the principles of justice, several factors can lead to perceptions of unfairness. These may include delays in the judicial process, limited access to legal representation for the accused, disparities in resources between the prosecution and defence, systemic inefficiencies, and concerns about corruption or bias within the system.

Public perception of the fairness of the criminal justice system can be influenced by media coverage, which tends to focus on high-profile cases and sensational incidents. Media attention often amplifies public expectations and can contribute to the perception that the system is failing when outcomes do not align with popular sentiment.

However, it is crucial to remember that the criminal justice system is designed to balance the accused’s rights with society’s interests. The presumption of innocence, the right to a fair trial, and the burden of proof resting on the prosecution are fundamental principles that are meant to safeguard the accused’s rights. These principles are vital to preventing arbitrary or unjust convictions.

While public sentiment and expectations are important, it is essential to maintain an impartial and independent criminal justice system that adheres to the rule of law. The fairness of the system should be assessed based on objective measures such as adherence to legal procedures, transparency, accountability, and equal treatment under the law.

WHAT IS THE PRINCIPLE OF LEGALITY IN SOUTH AFRICAN CRIMINAL LAW?

An accused may experience trauma from the criminal justice system’s intervention. Criminal law can easily be used as a means of repression or oppression, as it has in the past. Therefore, certain measures must be in place to safeguard and defend a person’s rights from abuse by the State. Given that it is founded on the ideals of constitutional democracy and fairness, the principle of legality is crucial in this context.

The principle of legality is a fundamental principle of criminal law that ensures the fairness, predictability, and limits of the criminal justice system. The principle holds that individuals should only be held criminally liable for conduct that is specifically prohibited by law and that punishment can only be imposed if the law existed before the commission of the act.

CAN A PERSON BE HELD LIABLE FOR A CRIME THEY COMMITTED IN THE PAST BEFORE THE LAW PROHIBITING THE ACT CAME INTO EFFECT?

The principle of legality is also known as the nullum crimen sine lege principle. This Latin expression means ”no crime without a legal provision”. The principle of legality is contained in section 35(3)(l) of the Constitution of the Republic of South Africa, 1996 (the Constitution), which provides that every accused person has a right to a fair trial, which includes the right 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.

WHAT KEY PRINCIPLES ARE ENCOMPASSED BY THE PRINCIPLE OF LEGALITY?

The principle of legality embodies the following five rules:

1. The ius acceptum rule

This rule states that courts may find an accused guilty of a crime only if the specific act performed by the accused is recognised by law as a crime, either through common law or statutory law. This principle prohibits courts from creating new crimes through judicial interpretation and emphasises that the power to define crimes lies with the legislature rather than the judiciary. The ius acceptum rule upholds the separation of powers, ensures legal certainty, and prevents judicial overreach by requiring that the accused can only be held accountable for conduct that has been established as a crime by existing laws.

2. The ius praevium rule

This rule states that courts may find an accused guilty of a crime only if the specific act committed was recognised as a criminal offence at the time it was committed. This rule emphasises that individuals should not be retroactively punished for conduct that was not deemed criminal at the time of its occurrence. It ensures that the accused has fair notice of the prohibited behaviour and prevents the arbitrary or retrospective application of criminal laws, thus safeguarding the fundamental principles of legal certainty and due process.

3. The ius certum rule

This rule stipulates that criminal offences should be formulated with clarity and specificity. Even if the rules of ius acceptum and ius praevium are adhered to, the principle of legality can still be compromised if criminal norms are established in a vague or ambiguous manner.

4. The ius strictum rule

This rule holds that a court should interpret the definition of a crime in a narrow rather than broad manner. This principle guides the court to apply a strict interpretation of the elements and scope of a criminal offence, ensuring that any ambiguity or uncertainty is resolved in favour of the accused. By interpreting the definition of a crime narrowly, the court promotes legal certainty, safeguards individual rights, and helps prevent potential overreach or misuse of criminal laws.

ARE THE PRINCIPLES OF LEGALITY ALSO IMPLEMENTED WHEN AN ACCUSED IS SENTENCED?

Once an accused has been found guilty, the aforementioned four rules must also be implemented when determining the appropriate sentence. This implies that the prescribed sentence, in terms of its nature and severity, must have already been established in reasonably clear terms by the law at the time the crime was committed.

Furthermore, the court must interpret the language describing the punishment in a restrictive rather than expansive manner, and it is prohibited from imposing any sentence other than the one authorised by law. This principle is commonly called the “nulla poena sine lege” rule, which can be further abbreviated as the “nulla poena” rule.

The principle of legality plays a crucial role in South African criminal law, ensuring justice, fairness, and the protection of individual rights. By upholding the principle, the legal system fosters legal certainty, prevents abuse of power, and provides individuals with fair notice of prohibited conduct. Continuous efforts are needed to strengthen and uphold this principle, address challenges, and promote a criminal justice system grounded in the principles of legality, justice, and the rule of law. Contact our experienced criminal lawyers for more information.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE