Masiya v Director of Public Prosecutions (Pretoria) and Another

The applicant, Mr Fanuel Sitakeni Masiya, was charged with raping a nine-year-old girl. Evidence established that the complainant was anally penetrated. Under the existing common-law definition, rape was limited to non-consensual vaginal penetration of a woman by a man, rendering anal penetration a lesser offence of indecent assault. The Regional Court developed the common law to extend the definition of rape to include non-consensual anal penetration and convicted Mr Masiya of rape. The High Court confirmed the conviction and declared the common-law definition of rape and certain statutory provisions unconstitutional for being gender-specific, referring the matter to the Constitutional Court for confirmation. Mr Masiya sought leave to appeal.

The common-law definition of rape was developed prospectively to include non-consensual anal penetration of women. The development did not apply retrospectively to Mr Masiya. His conviction for rape was set aside and replaced with a conviction for indecent assault. The High Court’s declaration of invalidity and gender-neutral extension was not fully confirmed.

This case is a landmark in the constitutional development of South African criminal law. It confirmed that the common-law definition of rape was unconstitutional and required development to better protect women and children. At the same time, it affirmed the centrality of the principle of legality and fair trial rights by refusing retrospective application. The judgment delineated the respective roles of courts and Parliament in reforming sexual offences law.