Skip to main content
Loading Explore guides…
Criminal Liability · Acedra
Home
Explore
Law
Criminal Liability
Sign in to save
Chat
If YouTube asks you to sign in, open the video on YouTube.
Watch on YouTube
Reload player
Transcript
149 segments
Copy
Hide video
0:00
Hi, welcome to Ela Law Tutorials. Please like, share, and subscribe. Today we are going to cover Chapter 2 of Criminal Law. Let's get to it. The first question to ask when determining whether a person is criminally liable is whether the type of conduct allegedly committed by such person is recognized by the law as a crime. Certain actions may be morally or religiously wrong, but they are not necessarily illegal. Again, even if it is prohibited by law, it does not necessarily
0:36
follow that it is a crime. It may only result in a civil action, an action or court case in which one private party seeks damages from another private party, or it may only result in certain administrative measures being taken by some authority.
0:51
A violation of a legal rule does not always constitute a crime. A simple breach of contract, for example, does not always constitute a crime. Only if a specific type of conduct is defined as a crime by the law can there be any question of criminal liability for that type of conduct.
1:12
This particular aspect of a person's behavior is at the heart of the legality principle. The legality principle is also known as the nullum crime in sign leg principle. No crime without a legal provision, says the Latin phrase.
1:29
Section 35. 3. L of the Constitution of the Republic of South Africa, 1996, states the legality principle.
1:39
It is critical that you include all of the elements in your definition of the principle of legality because this question is frequently asked in exams and is critical for you to memorize.
1:51
So define the principles of legality.
1:54
An accused may, one, not be convicted of a crime, A, unless the type of conduct with which she is charged has been recognized by the law as a crime, B, in clear terms, C, before the conduct took place. D, without it being necessary to interpret the words in the definition of the crime broadly in order to cover the accused conduct, and 2, if convicted, not be sentenced unless the sentence also complies with the, for requirements set out above under 1A, 2D, done.
2:32
Some things are worth memorizing, and this definition is one of it. You will secure plus minus 5 marks on exams or assignments.
2:43
Alright, let's move on. Now, if we examine the legality principle, we discover that it actually embodies 5 rules. We will give each of these rules a brief Latin label in order to make it easier for people to refer to the various rules. The following are these 5 guidelines. 1. A court may find an accused guilty of a crime only if the kind of act performed. is recognized by the law as a crime. In other words, a court itself may not. Create a crime. This is the I use acceptum rule.
3:18
Two, a court may find an accused guilty of a crime only if the kind of act performed was recognized as a crime at the time of its commission. This is the I use previum rule.
3:32
Three, crimes ought not to be formulated vaguely. This is the I use certum rule.
3:40
Four, a court must interpret the definition of a crime narrowly rather than broadly.
3:46
This is the I use strictum rule. Five, after an accused has been found guilty, the four rules mentioned above must also be followed when it comes to imposing a sentence.
3:59
This means that the appropriate sentence regarding both form and extent must have already been established in reasonably clear terms by the law at the time the crime was committed, that a court must interpret the words defining the punishment narrowly rather than broadly, and that a court is not free to impose any sentence.
4:17
This is known as the Nullipena Signleg Rule or simply the Nullipena Rule.
4:23
In actuality, the various facets of the principle of legality can all be traced back to one fundamental idea, that a person should be aware of exactly what kind of behavior is illegal beforehand in order to act in a way that does not violate the criminal law.
4:39
There is a connection between the rule of law and a democratic form of government. One of the reasons a judge shouldn't have the authority to create new crimes or expand the scope of existing crimes is that Parliament, as the assembly of the community's elected representatives, is best suited to determine which acts should be punished in accordance with the general will after examination and discussion.
5:01
In contrast, the judge's role is to interpret the law rather than make it. In order to ensure that the representatives in Parliament accurately reflect the, sometimes shifting, will of the people, there must be regular, not a one time event, free, free from intimidation, and fair elections. This relationship between legality and a democratic form of government naturally implies both of these requirements. There are five rules embodied in the principle of legality, namely, 1.
5:33
Conduct must be recognized by the law. A. S. a crime, I. U. S. acceptum. 2. Crimes should not be created with. Retrospective effect, I. U. S. previum.
5:45
3. Crimes ought to be formulated clearly, I. U. S. certum. 4. Provisions creating crimes must be. Interpreted strictly, I. U. S. strictum.
5:57
And 5. The principle of legality in punishment.
6:03
We will now go over each of these rules in detail because it is crucial to comprehend them in order to see how they all fit together. The first rule we'll cover is the IUS Acceptum, which states that conduct must be recognized by the law as a crime. The principle of legality has the effect that only conduct that fits the definition of one of the crimes expressly listed in the criminal code is punishable in a nation where the criminal code has been codified.
6:31
There is no codified criminal law in South Africa. Despite the fact that many crimes are defined by statute, some of the most serious crimes, including murder and assault, are not punished or defined by any law. They are merely subject to common law penalties.
6:51
However, just because our criminal law isn't codified doesn't mean it doesn't serve any purpose in our legal system. Before a court can convict someone of a crime, it must be evident that the type of conduct she is accused of is recognized as a crime in terms of either common law or statutory law. If this is not the case, a court cannot convict the defendant even if the judge or magistrate believes that the conduct should be punished from a moral or religious standpoint.
7:20
A court cannot make a crime, only the legislature has that authority.
7:25
The I use exceptum rule could be used to describe the described rule. I use is the Latin word for law, and exceptum is the Latin word for which has been received. I use exceptum can be loosely translated as the laws that has been received up to the present. The term I use septum is used in South Africa to describe both the common law and the enacted statutory law.
7:51
There is no explicit mention of the I use septum principle in the Constitution.
7:58
The I use septum rule is implied by section 35 3 L s provisions, though.
8:05
In a nutshell, this section states that every accused person has a right to a fair trial, which includes the right not to be found guilty of an offense for doing something that was not illegal at the time it was done. This interpretation of the IU's Previum Rule, though, also implies adherence to the IU's Acceptum Rule. If the act or omission was not unlawful at the time it was committed, the court may not find the defendant guilty, IU's Previum.
8:33
It clearly implies that a court lacks the authority to establish a crime, I use acceptum.
8:39
In other words, even if the accused act did not at the time it was committed constitute a crime, a court would still have the authority to convict them of a crime if it had the authority to create crimes.
8:52
It is useful to divide the discussion of this rule's application into two sections. First, the rule's application to common law crimes. And second, its application to statutory crimes to eye in light of the fact that there is no common law provision that defines certain conduct as a crime. Courts have generally ruled that there can be no crime and, consequently, no punishment. Katsa J wrote in M 1915 CPD 334, we do not possess the power of creating
9:20
offenses on the ground that in our judgment, they are against good morals.
9:25
Our courts are not the guardians of morals.
9:29
The legislature's job is to make such conduct punishable if it wants to do so. If there is a need to make any conduct that might be considered immoral or dangerous to society punishable, it is up to them to do so. Courts lack legislative power.
9:47
The constitutional court emphasized this point in Messiah V, Director of Public Prosecutions 2007 2 SACR 435 CC.
9:58
The court stated that the legislature, not the courts, is primarily responsible for law reform in a constitutional democracy like ours and that the delicate balance between the functions and powers of the courts and those of the legislature should be recognized and respected.
10:14
Statutory crimes are those that have been established by parliamentary acts, so to speak. If parliament wants to establish a crime, an act that does so will most closely adhere to the legality principle if it explicitly states both that the specific conduct in question is unlawful and what punishment a court must impose on someone found guilty of it.
10:36
However, it is not always obvious from an act's wording whether a section or provision has actually resulted in a crime or not. A court asked to interpret such a section or provision should only assume that a new crime has been created if it is clear from the act's wording that one has in fact been created. A court should be cautious before declaring that a crime has been established if the act does not expressly state that the conduct is unlawful.
11:03
This criterion or rule is equivalent to the legal presumption that an ambiguous statute's provision must be interpreted in the accused favor, handed 1950, 2, essay 592, t.
11:17
In this respect, it is doable to distinguish between a legal norm, a criminal norm, and a criminal sanction in an act.
11:26
A clause enacting a legal norm that does not also enact a crime is referred to as a legal norm in an act.
11:34
A clause that explicitly states that a particular action is illegal is known as a criminal norm in an act.
11:41
An act provision known as a criminal sanction specifies the type of punishment that must be given to a defendant after they have been found guilty of a crime. Following three ways may be used to express a statutory prohibition. One, a ticket is required for all train passengers.
12:00
Two, it is illegal for anyone to board a train without a ticket, and doing so is punishable by law.
12:08
Three, it is forbidden for anyone to board a train without a ticket. Anyone found in violation of this rule is guilty of a crime and subject to a maximum sentence of three months in jail, a fine, or both.
12:23
Example 1 only contains a prohibition. While it creates a legal norm, it does not create a crime. Non compliance with this provision may result in administrative sanctions. For example, the passenger may be ordered to exit the train at the next stop, but it does not contain a criminal provision. The court will not hold that such a provision has created a criminal norm unless there are strong and convincing indications to the contrary. Bethlehem Municipality, 1941 OPD 230.
12:55
Because of the words commits a crime, example 2 contains a criminal norm. It does not, however, include a criminal sanction because nothing is said about the punishment that a court must impose following conviction.
13:11
Example 3. Contains both a criminal norm and a criminal sanction. The criminal sanction is contained in the words, is punishable with imprisonment for a maximum period of three months or a maximum fine, or both. Such imprisonment and fine, or both such imprisonment and fine.
13:30
Before we can accept that a provision in an act created a crime, we must first establish that the provision contains a criminal norm. But what if a statutory provision establishes only a criminal norm, but makes no mention of a criminal sanction?
13:46
It was argued in Director of Public Prosecutions, Western Cape v. Prince 2012 9 SACR 183 SCA, that no crime exists in the absence of a penalty clause in the specific legislation, prescribed punishment. In other words, the argument was that a person accused of a statutory offense cannot be charged and found guilty of such an offense if the specific legislation does not also prescribe a sentence or punishment for the offense.
14:14
This argument was rejected by the Supreme Court of Appeal. The court determined that there was no support for this claim in the case law. Although the presence or absence of a penalty clause, prescribed punishment, is an important factor in determining whether a crime has been created, the court held that it is not an essential factor because it may otherwise be very clear from the specific legislation that a crime was created.
14:41
A court must consider the objectives of the specific legislation in addition to focusing on the language used in the act. If it is clear from the legislative objectives expressed in the title and preamble to the act and the entire context of the act that the intent was to create a crime or crimes, a person may be charged with such a crime and found guilty even if no penalty is prescribed in the specific act. The imposition of punishment is then left to the court's discretion, as has
15:11
always been the case under common law.
15:14
It should be noted, however, that when the legislature creates crimes, it usually includes penalty clauses as well. Of course, a statutory provision will best comply with the principle of legality if it includes a criminal sanction in addition to a criminal norm. The ideal situation is for the legislature to specify the maximum punishment for the crime. In the unlikely event that a statute creates a criminal sanction but not a
15:43
criminal norm, the court will conclude that the legislature intended to create an offense and that an offense was created.
15:50
Now, we will proceed to the second of the rules embodied in the legality principle, which is IUS Previum, which states that crimes should not be created with retrospective effect.
16:01
The principle of legality implies that no one should be convicted of a crime unless the type of conduct committed was recognized by the law as a crime at the time it occurred. This application of the legality principle is well known.
16:16
According to the IU's previum rule, previum means previous in Latin. IU's previum loosely translates as the law that already exists.
16:29
Assume someone committed a certain act in 1990 that was completely innocent in the sense that it did not constitute a crime at the time. Assume that this innocent act consisted of capturing and putting in a cage a specific type of wild bird that did not belong to anyone. Assume, further, that five years later, in 1995, the legislature passed an act dealing with wildlife protection in which it prohibited the catching of that type of
16:56
bird and expressly stated that anyone who caught such a bird had committed a crime.
17:02
Assume that this Act of 1995 also included a section that stated, this Act is deemed to have come into operation on the first day of 1990. This is an example of a law that has retroactive application. This type of legislation is known as ex post facto legislation. Ex post facto means that the law was enacted after the act was committed.
17:27
You will immediately recognize that an act of this nature, that is, one that creates a crime with retroactive effect, is most unjust, because the person who caught the bird in 1990, that is, when such an act was not a crime. Can now, after 1995, be convicted of the crime created by the Act and punished for it, despite the fact that, at the time of the Act in 1990, she neither knew nor could have known that such conduct is or would be punitive.
17:56
She could not have been deterred from committing the Act in 1990 because it was not yet punishable.
18:03
The Republic of South Africa's 1996 Constitution contains a provision that expressly states the I. U. 's Previum Rule. Section 35. 3 of this act states that every accused has the right to a fair trial of that subsection states that this right includes the right not to be convicted of an offense for an act or omission that was not an offense under either national or international law at the time it was committed or omitted.
18:30
This section is included in chapter two of the constitution, which includes the bill of rights.
18:37
This Bill of Rights applies to all laws and binds the legislature, executive, judiciary, and all state organs, Section 8, 1. This means that any legislation or law that violates the Bill of Rights could be declared invalid by a court.
18:54
The constitutional court had to decide in Messia Supra on the constitutional validity of the common law definition of rape to the extent that it excludes anal penetration of a penis into a female's anus.
19:07
At the time, the common law definition of rape was the unlawful, intentional penetration of the male sexual organ, the penis, into a woman's vagina. The court ruled that the common law definition of rape should be expanded to include acts of non consensual penetration of a penis into a female's anus.
19:26
The accused argued that the extended definition should not apply to him because it would violate his rights under Section 35. 3. L of the Constitution. Keeping the IU's previum principle in mind, the constitutional court ruled that the expanded definition of rape be applied prospectively only.
19:46
In other words, because the accused could not be convicted of rape until after committing the prohibited act, which is nonconsensual penetration of a female's anus, he could only be convicted of indecent assault.
20:00
Therefore, IUS certum, crimes ought to be formulated clearly, is the third rule that is incorporated within the principle of legality.
20:10
Even if the IUS exceptum and IUS previum rules that we have discussed are followed, the principle of legality can still be undermined by the creation of criminal norms that are vaguely or unclearly formulated. When the formulation of a crime is unclear or vague, it is difficult for the subject to understand exactly what is expected of her. The I. U. surdum rule is in play here. Surdum means clear, which is the inverse of vague.
20:39
In Nazi Germany in 1935, the following criminal prohibition was enacted. Any person who commits an act which, according to the fundamental idea behind the penal law, and according to the good sense of the nation, deserves to be punished, shall be punishable.
20:56
The IU CERDIM rule is not expressly mentioned in the Constitution.
21:02
However, it is likely that the provisions of Section 35. 3 will be interpreted in such a way that Section 35. 3 covers the IU CERDIM rule as well. Such an interpretation of the section could be based on an accused right to a fair trial in general or on the principle that if a criminal norm contained in legislation is vague or uncertain, it cannot be said that the accused act or omission amounted to a crime before the court interpreted the provision as one containing a criminal norm.
21:34
The IU Strictum Rule is the fourth application of the principle of legality. Even if the three aspects of the legality requirement, namely IUs exceptum, IUs previum, and IUs certum are met, the general principle can be undermined if a court is free to interpret broadly the words or concepts contained in the definition of the crime or to extend their application through analogous interpretation. IUs strictum means strict law in Latin.
22:03
It loosely translates as a legal provision that is strictly interpreted, for example, the inverse of widely.
22:11
There is a well known rule in statute interpretation that crime creating provisions in statutes should be strictly interpreted. The underlying idea here is not that the act should be interpreted against the state and in favor of the accused, but rather that where there is doubt about the interpretation, the accused should prevail.
22:31
If a criminal provision is violated, the accused should be given the benefit of the doubt.
22:37
Furthermore, the I. U. Strictum rule implies that a court is not authorized to extend the field of application of a crime by analogy to the detriment of the accused.
22:48
However, in Mesilla, the constitutional court held that, in exceptional circumstances, a high court may broaden the scope of a crime in order to promote the values enshrined in the Constitution. However, the accused was not prejudiced in this case because the extended definition was not applied to him. The following is the case's history. X was arrested and charged with rape. The common law definition of rape at the time was the unlawful,
23:17
intentional sexual intercourse with a woman without her consent. The element of sexual intercourse demanded nothing less than penetration of the male genital organ into the woman's vagina. The state argued that X should be convicted of indecent assault, a competent verdict on a rape charge.
23:37
The regional magistrate, on the other hand, ruled that the common law definition of rape, which limits the crime to penile penetration of the vagina, should be declared unconstitutional and amended to include penile penetration of the anus. As a result, the accused was convicted of rape by the regional magistrate.
23:57
In a decision reported as S. V. Messiah 2006 2 S. A. C. R. 357 T, the High Court upheld the decision of the Regional Magistrate in an appeal by the accused.
24:10
The High Court explained, at par 61. Under the existing common law definition of the crime, non-consensual inal penetration of a girl or a boy amounted only to the lesser common law, crime of indecent assault, not rape, because only non-consensual vaginal sexual intercourse was considered rape.
24:31
The court questioned why non-consensual sexual penetration of a girl or boy per annum should be considered less injurious, humiliating, and serious than non-consensual sexual penetration of a girl per va.
24:45
The court held that the common law definition of rape was not only archaic, but also irrational and amounted to arbitrary discrimination in determining which type of sexual penetration was the most serious.
24:58
The court determined that the rape conviction did not constitute an unjustified violation of the accused fair trial rights, example, the principle of legality, which is guaranteed as one of the accused rights in sections 35, 3. L, and 35 3N of the constitution.
25:17
The court held that the common law definition of rape was not only archaic, but also irrational and amounted to arbitrary discrimination in determining which type of sexual penetration was the most serious.
25:30
The court determined that the rape conviction did not constitute an unjustified violation of the accused fair trial rights, example, the principle of legality, which is guaranteed as one of the accused rights in sections 35 3 L and 35 3 N of the Constitution because non consensual anal intercourse was already a crime and the accused was aware that he was acting unlawfully.
25:55
The high court relied on certain constitutional provisions in broadening the scope of the crime of rape. These provisions give the courts the authority to create common law in order to give effect to a bill of rights right. Sections 8, 3, and 39, 2 of the Constitution are the relevant provisions.
26:17
Section eight three A States that a court must a apply, or if necessary, develop the common law to the extent that legislation does not give effect to a right in the Bill of Rights.
26:30
Section 39 2 states that when interpreting any legislation in developing common law or customary law, every court, tribunal or forum must promote the spirit purport and objects of the Bill of Rights. X appealed his rape conviction once more, this time to the Constitutional Court, citing a violation of his right to a fair trial. The Constitutional Court emphasized that the legislature is primarily responsible for law reform. Section 39.
27:01
2 of the Constitution, on the other hand, empowers the courts to develop common law in any particular case.
27:09
Where there is a deviation from the spirit, purpose, and objects of the Bill of Rights, the courts are obligated to develop common law by correcting the deviation.
27:19
The Constitutional Court determined that the common law definition of rape was not unconstitutional, but that it needed to be modified to comply with the Bill of Rights provisions.
27:30
The court concentrated solely on the facts before it and on the specific rights of women violated by the limited definition of common law rape, namely the rights of women to dignity, sexual autonomy, and privacy. The definition of crime was expanded in order to give effect to these rights only in the case of women. The court was especially concerned about protecting the rights of young girls who may not be able to distinguish between different types of penetration, namely penetration per annum.
28:01
Although the consequences of non consensual anal penetration differ from those of non consensual vaginal penetration, the trauma associated with the former is just as humiliating, degrading, and physically damaging as that associated with the latter. By including penetration of a female's anus by a penis in the definition of rape, the law would protect vulnerable and disadvantaged women to a greater extent.
28:29
This approach, according to the court, would harmonize common law with the spirit, purpose, and objects of the Bill of Rights.
28:37
The court held that the principle of legality does not preclude the development of common law.
28:43
Such a conclusion would be contrary to the Constitution's principles, which require the courts to ensure that common law is imbued with the spirit, purpose, and objects of the Constitution. However, when developing common law, it is only possible to do so in the future. The court ruled that developing common law retroactively in that case would violate the constitutional principle of legality.
29:10
Foreseeability is one of the central tenets underlying the understanding of legality.
29:15
The court explained that this meant that criminal law rules should be clear and precise, so that an individual can easily avoid committing crimes.
29:25
In other words, fairness to the accused required that the expanded definition of rape not apply to him, but only to cases that arose after the case had been decided. As a result, X could only be convicted of indecent assault, not rape.
29:41
The legality and punishment principle is the final one to consider.
29:47
So far, we have considered the application of the legality principle to the creation, validity, formulation, and interpretation of crimes or definitions of crimes.
29:58
The rules of PREVIUM, IUSE CERTUM, and IUSE STRICTUM are also applicable when dealing with the imposition of punishment.
30:08
The maxim nulla pena sine leg, no penalty without a statutory provision or legal rules, is often used to express the application of the principle of legality to punishment as opposed to the existence of the crime itself.
30:22
The IU's acceptum rule is applied to punishment in the following way. Just as a court cannot find anyone guilty of a crime unless the conduct is recognized as a crime by statutory or common law, it cannot impose a punishment unless the punishment, in both its nature and extent, is recognized or prescribed by statutory or common law. The I use premium rule is applied to punishment in the following way. If the punishment to be imposed for a specific crime is increased, it must
30:51
not be applied to the detriment of an accused who committed the crime before the punishment was increased that he I use certain rule is applied to punishment in the sense that the legislature should not express itself vaguely or unclearly when creating and describing punishment.
31:07
He, I use certain rule is applied to punishment in the sense that the legislature should not express itself vaguely or unclearly when creating and describing punishment.
31:17
The Null Opina rule is incorporated into section 35 three N of the constitution. It states that the right to a fair trial includes the right to the least severe of the prescribed punishments. If the prescribed punishments for the offensive change between the time of the offense and the time of sentencing.
31:37
So, we've reached the end of Chapter 2, and we'll do a recap by doing the activity from the study guide. It's important to know these elements because they may be included in exams or assignments, so let's get started.
31:52
Define the principle of legality.
31:55
An accused may, one, not be convicted of a crime, A, unless the type of conduct with which she is charged has been recognized by the law as a crime, B, in clear terms, C, before the conduct took place, D, without it being necessary to interpret the words in the definition of. The crime broadly in order to cover the accused conduct, and Two, if convicted, not be sentenced unless the sentence also complies with the four requirements set out above under 1A to D.
32:31
Two, name the five rules embodied in the principle of legality referred to the Latin terms.
32:38
One, I use exceptum, which means the law that we have received, or the rule that a court may find an accused guilty of a crime only if the kind of act performed is recognized by the law as a crime. Two, I use previum, which means previous law, or the law that already exists, or the rule that a court may find an accused guilty.
33:01
Of a crime only if the kind of act performed was recognized as a crime at the time of its commission.
33:09
3. I use certum, which means clear law, or the rule that crimes ought not to be, formulated vaguely. 4. I use strictum, which means strict law, or the rule that a court must interpret the definition of a crime narrowly rather than broadly. 5. Nullipena Signleg, which explains no punishment without a legal provision, or the application of the rules of legality to punishment. Three, discuss the role of the IU's acceptum rule in determining whether
33:42
a, conduct constitutes a crime in terms of the common law, and b, a statutory provision has created a crime. Okay. So to answer question on three a in cases where there is no common law provision defining a particular act as a crime, courts have generally ruled that there can be no crime and no punishment. Kotzebue wrote an M 1915 CPD three 34. We do not possess the power of creating offenses on the ground that in our judgment, they are against good morals.
34:15
Our courts are not the guardians of morals.
34:19
The legislature's job is to make such conduct punishable if it wants to do so. If there is a need to make any conduct that might be considered immoral or dangerous to society punishable, it is up to them to do so. A court cannot pass legislation.
34:37
4. Distinguish between a legal norm, a criminal norm, and a criminal sanction.
34:43
A legal norm in an act is a provision that creates a legal rule but does not also create a crime.
34:51
A criminal norm in an act is a provision that states unequivocally that certain behavior is illegal.
34:58
A criminal sanction is a provision in an act that specifies the punishment that a court must impose after convicting someone of a crime.
35:07
Okay. Number five, with reference to the decision of the Supreme Court of Appeal and DPPV prints discuss our courts should determine whether a statutory offense has been created. If there is no punishment prescribed for the offense in the particular legislation, it was argued that no crime exists in the absence of a penalty clause in the specific legislation prescribed punishment.
35:32
In other words, the argument was that a person accused of a statutory offense cannot be charged and found guilty if there is no sentence or punishment prescribed for the offense in the relevant legislation. This argument was rejected by the Supreme Court of Appeal. The court determined that there was no support for this claim in the case law. Although the presence or absence of a penalty clause, prescribed punishment, is an important factor in determining whether a crime has been
36:01
created, at par 15, the court held that it is not an essential factor. d. In addition to focusing on the language used in the act, a court must consider the specific legislation's objectives. If it is clear from the legislative objectives expressed in the title and preamble to the act and the entire context of the act that the intent was to create a crime or crimes, a person may be charged with such a crimes and found guilty even if no penalty is prescribed in the specific act.
36:33
The imposition of punishment is then left to the court's discretion as has always been the case under common law.
36:41
It should be noted, however, that when the legislature creates crimes, it usually includes penalty clauses as well.
36:49
Let's move to question six.
36:52
Define the I. U. 's Previum Rule.
36:56
Crimes should not be created with. Retrospective effect.
37:01
Question seven, define the I use certain rule crimes ought to be formulated clearly.
37:09
Question eight, discuss the decision of the constitutional court in Messiah. The court stated that in a constitutional democracy like ours, the legislature, not the courts, bears the primary responsibility for law reform and that the delicate balance between the functions and powers of the courts on the one hand, and the functions and powers of the legislature on the other. Thank you. Thank you. Whereas those of the legislature should be acknowledged and respected.
37:38
Question 9. Discuss the IAU Strictum Rule.
37:43
Even if three aspects of the legality requirement are met, namely I use exceptum, I use previum, and I use certum, the general principle can be undermined if a court is free to interpret broadly the words or concepts contained in the definition of the crime or to extend their application by analogous interpret.
38:02
10. Discuss the principle of legality in punishment.
38:07
The rules of IUs exceptum, IUs previum, IUs certum, and IUs strictum are also applicable when dealing with the imposition of punishment.
38:17
The maxim nulla pena sine leg, no penalty without a statutory provision or legal rules is often used to express the application of the principle of legality to punishment as opposed to the existence of the crime itself.
38:31
The IU's acceptum rule is applied to punishment in the following way. Just as a court cannot find anyone guilty of a crime unless the conduct is recognized as a crime by statutory or common law, it cannot impose a punishment unless the punishment, in both its nature and extent, is recognized or prescribed by statutory or common law.
38:52
The IU's Previum Rule is applied to punishment in the following way. If the punishment to be imposed for a specific crime is increased, it must not be applied to the detriment of an accused who committed the crime before the punishment was increased.
39:07
The IU's Certum Rule is applied to punishment in the sense that the legislature should not express itself vaguely or unclearly when creating and describing punishment.
39:17
When it comes to punishment, the IU Strictum Rule states that if a provision in an act that creates and prescribes a punishment is ambiguous, the court must strictly interpret the provision.
39:30
The Null Opina Rule is incorporated into Section 35. 3. N of the Constitution. It states that the right to a fair trial includes the right to the least severe of the prescribed punishments if the prescribed punishments for the offense have changed between the time the offense was committed and the time of sentencing.
39:50
This was a very long series of chapter two. We hope it makes things clearer. Please go to your study guide and ask your lectures for more clarity as we only want to supplement your books, not replace them. I hope this was helpful. Please remember to like, share, and subscribe to Ella Law Tutorials.
Here to help you learn
Sign in to keep a private conversation with your course tutor.
Ask me anything about the material…
Sign in to chat