Does the principle of legality require statutory crimes to have specific penalty clauses? A critical analysis of the decisions of the High Court and the Supreme Court of Appeal in DPP, Western Cape v Prins

Abstract

The principle of legality is often expressed in terms of the maxims nullum crimen sine lege (no crime without law) and nulla poena sine lege (no punishment without law). When the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 replaced most common-law sexual offences, it contained no penalty clauses for the new statutory offences. The question that arose in the state’s appeal in Director of Public Prosecutions, Western Cape v Prins 2012 (2) SACR 183 (SCA) was whether this situation offended the principle of legality. The Court found that it did not. First, there was no doubt that the new legislation created criminal offences. Secondly, provision for the sentencing of all criminal offences is made in s 276 of the Criminal Procedure Act 51 of 1977. This case discussion considers the reasoning of the court, compared with that of the court a quo.