Browsing by Author "Phelps, K"

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    A dangerous precedent indeed - a response to CR Snyman's note on Masiya
    (Juta Law, 2008) Phelps, K
    Masiya v Director of Public Prosecutions 2007 (5) SA 30 (CC) (hereafter Masiya) is inherently controversial. The facts of the case, the unlawful anal penetration of a 9-year-old girl, strike at the heart of our social fabric. The legal issues at stake, such as the principle of legality, the separation of powers and the Constitution, strike at the heart of our legal order. It is thus unsurprising that the judgment in Masiya has elicited critical commentary. This is a direct response to one such comment, C R Snyman's recent note 'Extending the scope of rape - A dangerous precedent' (2007) 124 SALJ 677 (hereafter 'Snyman'). Snyman addresses the following four issues in his note as they pertain to the judgment in Masiya : the principle of legality; separation of powers; the constitutionality of the common-law definition of rape; and whether the court was unduly swayed by emotional considerations. This comment refutes his stance and the reasoning employed in relation to each of these issues.