The following background information and case summary has been supplied by the Legal Resources Centre.

Facts/Background
The accused (Masiya) was initially charged with the rape of a 9 year old girl child. The evidence presented by the State in the Sabie Magistrate’s Court established that the complainant’s hymen was not intact and that the perineum and anus were normal. On 11 July 2005 the accused was convicted of rape. In arriving at his decision on conviction, the magistrate found inter alia that the common law definition of rape was archaic and discriminatory against all males who were penetrated anally without consent. The discrimination was illogical, unjust and irrational and negated the constitutional values of dignity, equality and freedom. Further held that where necessary the magistrate’s court is mandated to develop the common law under section 39(2) of the Constitution and that the common law definition of rape ought to be developed in order to be brought in line with the Constitution. In terms of section 52(1) of the Criminal Law Amendment Act 105 of 1997 the proceedings were stopped and the accused was committed to the High Court for the purpose of sentence. The first issue facing the High Court was whether, in terms of section 52(3) of the Criminal Law Amendment Act, the conviction was in order. Secondly, if found to be correct, what the appropriate sentence would be having regard to the statutory provisions on minimum sentencing. The Judge found that the magistrate was correct in his assessment of the current common law definition of rape and its shortcomings. He declared that the common law ought to be developed so that the definition of rape included anal penile penetration. He found that the accused was guilty of rape.

The accused approached the constitutional court for leave to appeal against the whole of the judgment and order handed down by the Pretoria High Court. The Constitutional Litigation Unit (CLU) of the Legal Resources Centre (Johannesburg) acted on behalf of the Centre for Applied Legal Studies(“CALS”) and Tshwaranang Legal Advocacy Centre who sought to intervene as amicus curiae in the matter pending before the Constitutional Court.

The Amici made the following submissions:

a. Describing the gendered nature of the common law definition of rape prior to it having been developed by Ranchod AJ.

b. That the historical definition of rape is inconsistent with the Constitution.

c. That the common law definition of rape ought to be developed to be brought in line with the spirit, purport and objects of the Bill of Rights in terms of section 39(2).

d. That development of the definition is appropriate despite impeding law reform in the form of the Sexual Offences Bill. In this regard our clients seek to put evidence before the Court on the progression, to date, of that law reform process.

The matter was heard by the Constitutional Court on 9 November 2006 and judgment handed down on 10 May 2007. The court took into account submissions made on behalf of the amici and ordered amongst other things the following:

1. That the common law definition of rape ought to be developed to include acts of non-consensual anal penetration, however the definition would not be retrospectively applied.