Anal penetration, whether the victim is male or female, must be regarded as a crime of rape and the offender has to be sentenced accordingly, the Pretoria High Court ruled on Tuesday.
Acting Judge Natvarial Ranchod declared the common law definition of rape as it presently stands to be unconstitutional and ordered it be extended to include acts of non-consensual sexual penetration of the male organ into the vagina or the anus of another person.
He also declared certain provisions of the Criminal Procedures Act and the Minimum Sentences Act, which are gender specific, to be unconstitutional. He said where these provisions refer to a gender, this must be replaced with the word "person".
Ranchod referred his judgment to the Constitutional Court for confirmation.
Deputy director of public prosecutions Retha Meintjes said the judgment was binding on the Transvaal Provincial Division, and also on all lower courts countrywide.
If the Constitutional Court confirmed the judgment, it would, however, bind all courts nationally.
Meintjes said the DPP's office was delighted with the judgment, as it would put accused who anally penetrated their victims on a par with those accused of rape.
Courts in the past had been far more lenient on those guilty of anal penetration than on those guilty of vaginal penetration, she said. The reason was that anal penetration amounted to a conviction of indecent assault, not rape, and was viewed by the courts in a less serious light with far lenient sentences.
Men who were anally penetrated could now find justice in that their perpetrators could face a charge in the High Court of rape with a possible life sentence.
The DPP's office is now planning on charging a paedophile who allegedly anally penetrated a number of boys with rape.
Ranchod's judgment was prompted by a nine-year-old girl who was anally penetrated in 2004 by a man she knew. A Lydenburg magistrate convicted Fanuel Masiya, 44, of rape. The magistrate at the time ordered that the common law definition of rape be extended to include non-consensual acts of sexual penetration in both the vagina and the anus, regardless of whether the victim was male or female.
The archaic common law definition of rape discriminated against males and females and this discrimination was illogical, he said.
The lower court could encroach on the terrain of parliament as lawmaker because of parliament's unreasonable delay in promulgating adequate laws, he said.
Progress on the Sexual Offences Bill of 2003, which will extend the current definition of rape, has been slow and Meintjes said it was likely that the Constitutional Court would consider Ranchod's judgment before the new Bill came into effect.
Because Masiya could face a life sentence, the magistrate referred the matter to the High Court for sentencing. Ranchod had to confirm the magistrate's conviction of rape.
He said the lower court had the right to inquire into the validity of the common law and the High Court had the power to develop the common law to bring it into line with the Constitution.
Judge Eben Jordaan earlier raised the three-year sentence of a man who anally penetrated a boy to 15 years.
The man was convicted of indecent assault, but Jordaan held that rape was in fact committed.
"The harm done, whether to male or female, does not differ, neither the blameworthiness," he said.
The judge added that had it been vaginal rape, a possible life sentence would have been considered.
He said it was high time the legislature took steps in this regard.
Ranchod on Tuesday said the High Courts already regarded anal penetration as just as serious as rape and were of the view that a distinction was not warranted.
He said until the Sexual Offences Bill was passed by parliament, his judgment would be of relevance to victims of non-consensual anal penetration.
Meanwhile, Masiya's sentencing was postponed until the Constitutional Court had ruled on the issue.