FACULTY OF LAW

CENTRE FOR CONTINUING EDUCATION PROGRAMMES

DIPLOMA IN LAW: PARALEGAL STUDIES
STUDY GUIDE COMPILED BY DR W N NEL

CRIMINAL LAW, LAW OF CRIMINAL

PROCEDURE AND LAW OF EVIDENCE 1
(CPE00A1)
2023

Copyright © University of Johannesburg, South Africa

Printed and published by the University of Johannesburg

© All rights reserved. Apart from any fair dealing for the purpose of research, criticism or review as permitted under the Copyright Act 98 of 1978, no part of this material
may be reproduced, stored in a retrieval system, transmitted, or used in any form or be published, redistributed, or screened by any means electronic, photocopying,
recording or otherwise without the prior written permission of the University of Johannesburg.
Table of Contents

Section A: Administrative details...................................................................................... 3

Section B: Assessment guidelines ..................................................................................... 9

Section C: Academic programme quality ................................................................... 12

Section D: Facilitation of learning .................................................................................. 14

LEARNING UNIT 1: INTRODUCTION TO CRIMINAL JUSTICE ......................................... 14

LEARNING UNIT 2: INTRODUCTION & GENERAL PRINCIPLES OF CRIMINAL LAW ...... 33

LEARNING UNIT 3: INTRODUCTION TO CRIMINAL LIABILITY AND THE LEGALITY

PRINCIPLE ...................................................................................................................... 51

LEARNING UNIT 4: DEFENCES ....................................................................................... 68

LEARNING UNIT 5: CRIMINAL LAW - SPECIFIC CRIMES............................................... 92

Bibliography ................................................................................................................... 122

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 Section A: Administrative details
Welcome

We welcome you to Criminal Law, the Law of Criminal Procedure and Evidence 1! The subject
content, generally referred to as criminal justice, is spread over two modules. In the first-year
module (CPE00A1) we will consider the substantive criminal law aspects. In the second-year module
(Module 6), we will consider the procedural aspects of criminal justice, including law of criminal
procedure and law of evidence.

We trust that you will find the course content interesting and that it will equip you with basic
knowledge to deal with potential legal issues that may crop up in your career. Whilst it is impossible
to cover the entire field of criminal law in one year, such areas that will be dealt with will focus on
providing you with a theoretical and, insofar possible, a practical, explanation and understanding
thereof.

The syllabus for this subject has been designed according to the needs of the South African criminal
justice system. This Study Guide has been developed as a user manual and provides the relevant
theoretical content of the subject.

Your lecturer wishes you loads of success during your studies. Study rigorously, consistently and
ethically, and take responsibility for your future and your choices.

NOTICE TO ALL STUDENTS

Leave the excuses at the door.
If you didn’t prepare for class, just admit it.
If you don’t understand the work, ask for help.
If you didn’t study for the test, accept the grade, and resolve to do better and study harder (with my
help if necessary) next time.
If you refuse to follow my rules, accept the consequences.
This is not a democracy, this is an opportunity, your opportunity. So, use it wisely and make good
choices for your future. Take responsibility for your studies and your future career.
This is MY career and MY passion; and I’m here to:
TO TEACH YOU
TO INSPIRE YOU
TO HELP YOU DEVELOP
I’ll do my part. The rest is up to you.

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Details of your Lecturer

Lecturer: Dr WN Nel
Email: [email protected]
Office: A-Ring 709 (Auckland Park Kingsway Campus)
Contact: 011 559 2121

Faculty office: A-Ring 614, APK

Faculty administrator:
Email:
Contact: (011) 559 2758 or 3754

Teaching and learning:

In line with the strategic objective of teaching excellence, our task at the University of Johannesburg
(“UJ”) is to ensure that you have a vibrant intellectual experience on UJ’s wonderful campuses.

The modality of teaching and learning for this subject will primarily be face-to-face classes,
the central and obligatory feature of most undergraduate programmes in South Africa. In
addition, UJ’s web-based virtual learning environment and learning management system,
“Blackboard” is of utmost importance. Together, on-campus, in-person teaching, and
Blackboard support resources, serve as complementary teaching tools for this subject.

Workshops:

At present, there are two compulsory workshops planned, which you must attend. It is in your best
interest to attend both workshops, as various examples and material which are not included in this
Study Guide, will be discussed. Please note that no workshops will be repeated in-person or online,
and no additional notes will be made available to you. Assignments and Examinations will also be
discussed during workshops. Any announcements made in class will be deemed to have come to the
attention of all learners. If necessity dictates that this teaching and learning plan must be revised,
students will be informed via Blackboard.

There are not enough lecturing contact sessions to discuss all the course work. It is expected of
you to master the prescribed material independently. This means that you will be expected to
work through the relevant material before the lecture. Your lecturer will merely facilitate this
learning process by making available supportive resources on Blackboard. It is not your lecturers'
responsibility to summarise the material for you, nor is it his responsibility to prepare notes for you.
Take responsibility for your studies.

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Web learning environment: Blackboard

You must activate your course in the student website to access the Blackboard course. Please refer
to the logon procedure in the uLink brochure, or contact the CAT helpdesk, email [email protected] or
call +27(0)11 559 3580. Your lecturer cannot assist you with Blackboard queries or problems.

NB (nota bene – very important) – BLACKBOARD is an essential teaching and learning tool to
enable student success, an absolute necessity in submitting assignments, and the primary portal
of communication between you and your lecturer.

Announcements, notes, and other information is continually placed on Blackboard at the discretion of
your lecturer. Such important information includes, but not limited to, workshop details, study
notes, information regarding assessments, prescribed and or recommended sources, as well as
prescribed changes to the subject matter of the module. Assignments will be completed and
submitted on Blackboard itself. In this regard, a step-by-step guide will be made available on
Blackboard.

It is your sole responsibility to make sure that you are up to date with all information that
has been posted on Blackboard.

Please note that if necessity dictates that the abovementioned teaching and learning plan be
revised, students will be informed as soon as possible via Blackboard. It is therefore important
that you check Blackboard regularly for course related information.

Consultation with lecturer:

Considering that most students do not visit the UJ APK campus regularly, consultation with the
lecturer will take place via email correspondence and after workshops. Alternatively, you can make
an appointment to see your lecturer in person on campus.

When sending an email to your lecturer, always state your student number, surname, and
first name, as well as the subject name or course code in full. Remember, the way you
treat and engage with others, determines how they will react to you. Be respectful and
courteous.

Please ensure that you have read all relevant material before contacting the lecturer. You must
have the relevant study guide or work at hand if you have a question regarding same.

General Introduction to the subject matter

“[A]n effective criminal justice system is… vital to our democracy” – DA v President of the RSA
2013 (1) SA 248 (CC).

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Retired Justice of the Constitutional Court of South Africa, Edwin Cameron, refers to “the crisis of
criminal justice in South Africa” and opines that “[t]he major response to the crime wave in our
country should be to recognise that the sole inhibiting institutional response to criminal conduct is
the certainty of detection, the certainty of follow up, the certainty of arraignment, the certainty of
prosecution — and the certainty of punishment.” - 2020 SALJ 57. There are many inefficiencies and
deficiencies in our current criminal justice system's approaches to crime. Alarmingly, the number of
verdicts and the number of persons sentenced to prison show a general decline. In order not to be
blinded by the harsh realities and horrors of crime in South Africa, our criminal justice system
requires optimists - "[t]he people who are crazy enough to think they can change the world are the
ones who do." In his book, Long Walk to Freedom, Nelson Mandela wrote: “I am fundamentally an
optimist. Part of being optimistic is keeping one's head pointed toward the sun, one's feet moving
forward.” South Africa needs law students and future jurists with this optimistic mindset. It is often
these kinds of optimistic law students, who live with an inner sense of justice and truth, that make
for outstanding paralegals and criminal prosecutors, and end up making a significant positive impact
in the criminal justice system. This course will not only equip you with the necessary theoretical and
practical knowledge to be an effective legal professional, but will also encourage you to become an
influencer, the catalyst for change, which our criminal justice system so desperately needs.

Truth and justice can only be achieved in situations where respect for the rule of law and human
rights are maintained, which in turn, requires effective criminal prosecution mechanisms and
criminal law enforcement.

The effective and accurate use of legal jargon is essential to any career in the legal field. ‘Legal
jargon’ refers to words and expressions that are used in a special or technical fashion within the legal
environment. Study the appropriate legal jargon for all your law courses carefully and use it
correctly.

“Words are the essential tools of the law. In the study of law, language has great importance;
cases turn on the meaning that judges ascribe to words, and lawyers must use the right words
to effectuate the wishes of their clients.”

Legal language plays a major role for communication and practicing law in South Africa, and
globally. Therefore, the most important skill a legal scholar must develop is their proper use of
legal jargon, whether in reading, writing, or orally. If you are struggling to cope with studying in
English, please consult your lecturer, there are various ways in which we can assist you to improve
your language skills.

READ, READ, READ!!! Read the announcements and information that we send you, whether via
email or on Blackboard. This is our primary communication channel with you, but if you fail to read
these snippets of information, you will miss out on valuable or essential information. Our time
together during workshops are very limited and is therefore spent on academic content.

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 Support services and study resources

To ensure that you have all the support you need to successfully complete this course, the resources
listed below needs to be consulted. We are confident that, if you follow our suggestions for studying
this course and use all these resources to their full potential, you will do very well.

i. Prescribed study material / electronic study guide / recommended sources

This study guide is compulsory study material. Please familiarize yourself with the content of
the study guide. This Study Guide has been developed to provide you with the required learning
material and outline various administrative aspects. This Study Guide has been developed as a
user manual and provides the relevant theoretical content of the subject.

There is no prescribed textbook for this subject. There are a few recommended textbooks that
you can consult for this subject. These are available from the UJ Law Library for this subject,
which includes: Kemp (ed), Criminal Law in South Africa (2018) 3rd Edition, Oxford University
Press Southern Africa; Kleyn et al, Beginner’s Guide for Law Students (2018) Juta; and Snyman,
Criminal Law (2014) LexisNexis, Durban.

ii. PowerPoint lecture slides

Together with the study guide, the PowerPoint lecture slides is compulsory study material,
which can be downloaded from Blackboard.

iii. Blackboard
It is your sole responsibility to make sure that you are competent to use Blackboard. As
mentioned, Blackboard is an essential teaching and learning tool to enable student success, an
absolute necessity in submitting assignments, and the primary portal of communication
between you and your lecturer.

Your lecturer cannot assist you with Blackboard queries or problems. Please refer to the
uLink brochure, or contact the CAT helpdesk, email [email protected] or call +27(0)11 559 3580.

iv. UJ Law Library (Auckland Park Kingsway Campus Library, 6th floor)
Please contact the law librarian for information on different resources available, using the
library link on the UJ website or library live on Blackboard. You are reminded that a copy of the
recommended textbook for this module will be kept on reserve for your reference. Useful link:
https://uj.ac.za.libguides.com/?group_id=12171.

Policies and procedures regarding plagiarism

The University of Johannesburg’s (“UJ”) educational policy, General Regulation and Faculty

7
Regulations, is applicable and is available for scrutiny at the faculty office.

Dishonesty and plagiarism are not tolerated and will be punished. Plagiarism is the verbatim
(word-for-word) use of another’s work and presenting it as if it were one’s own.
• It is important to acknowledge any thoughts, ideas and information which are not your own. It
is also important to use a standard form of referencing to provide all relevant information that
will help any person who may be interested to read further about the information. As a result,
you need to keep an accurate record of collecting your data.
• You will be required to cite your source(s), especially when referring to an item within your
text. You are also required to indicate the reference where the citation can be found at the
end of your work.
• The different Faculties and/or departments within the University may require you to use a
particular (or different) citation method. It is therefore important for you to enquire and
adhere to the requirements set by the Faculty of Law.
• The proper procedures are laid down by the University and the Faculty is responsible for
strategies that address means of preventing, monitoring, and handling acts of plagiarism.

Copyright issues are handled in accordance with DALRO principles and procedures. For more
information, see UJ Law Library link regarding Plagiarism and Copyright:
https://uj.ac.za.libguides.com/c.php?g=616010&p=8102756.

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 Section B: Assessment guidelines
Assessment opportunities and mark calculation

Assessments are conducted in accordance with the latest assessment policy of the Faculty of Law.
The assessment for this subject is based on two (2) formal assignments per module, that you
must complete and submit on Blackboard. The assignments are intended to determine the extent
and depth of your knowledge of a specific module and to improve specific skills like logical thinking.
You must obtain at least an average mark of 40% to qualify to sit for the examination in that
particular module.

Important aspects relating to year marks, examination marks and final marks:

First assignment: 25%

Second assignment: +25%
Final examination: +50%
_______________________________
Final mark total: =100%

NB: Students must obtain a subminimum of 40% in the examination and a

final mark of 50% to pass a module.

How to approach the assignments

 Do NOT ‘Google’ the assignment questions! You may very well end up referring to foreign law
that is incorrect.
 Make use of your prescribed material to answer the questions – study guide and lecture
slides. All the information you require are in these sources. Before you start with a question,
analyse the topic covered in the question. Know exactly on which area of the law the assignment
focuses. You will only know this if you have worked progressively through the study material.
 Follow the instructions in the questions. Different instructions mean different things, refer to
the Information Guide for more clarity in this regard.
 Assignments may NOT be e-mailed or posted. Email submissions will only be accepted under
exceptional circumstances, which circumstances must be clearly explained and substantiated.
 As mentioned, assignments must be completed and submitted on Blackboard. A separate
document detailing the relevant steps will be posted on Blackboard.

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 No assignment will be marked if not submitted in the correct format on Blackboard by the
indicated submission date.
 Follow the assignments guidelines set out in the Information Guide.
 Take note of the policy on plagiarism above. Plagiarism may result in disciplinary action –
including suspension from the University.
 Assignments must be completed individually. No group assignments are allowed.

Guideline for answering longer-type questions in the assignments or exam

 As mentioned above, the effective and accurate use of legal jargon is essential to any verbal,
written or oral communication in the legal field. This applies similarly to your formal
assignments and exams. While using the prescribed material to answer your question, remain
mindful of using the correct legal jargon, but do not merely copy the text from the study
material.

 Problem-type questions:
o This type of question comprises of a set of facts (a story).
o You have to read it, analyse it and then answer the questions relating to these facts.
o You will encounter these types of questions quite frequently as it teaches you how to
apply the law to your clients’ problems.
o Before answering the question, read the set of facts thoroughly and identify the relevant
legal aspects or issues in dispute.
o You will obviously only be able to answer this type of question if you know and
understand the relevant underlying legal principles.

 In relation to longer-type (essay-type and problem-type) questions, you are required to present
your answers (whether for exams or written assignments) in a clear, systematic, and logical
manner, making use of the following important structural and stylistic guidelines:
o Plan your answer and decide on the content that you are going to include before you
write it down so that it is methodical, rational, relevant, concise, and complete.
o The use of correct legal language and terminology is essential.
o Consider the mark allocation for each question to determine the detail required.
o Pay special attention to a meaningful introduction and conclusion.
o Divide sections of your answer into different paragraphs and use bullet points, section
headings, and (digital) highlights, where appropriate.
o Use full sentences.
o Do not include irrelevant information in your answer, as this detracts from the overall
impression of your answer.

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 o Do not explain the legal principles by merely using examples. Only give examples when
you are asked to do so. You have to explain or discuss the relevant legal principles first
and then apply it to the facts in the question.
o Always refer to relevant case law and/or legislation.

 Editing and proofreading are essential parts of the writing process. Do not submit an answer
without editing and proofreading your submission. Editing and proofreading means examining your
(yet to be finally printed) text carefully to find and correct spelling, grammatical, and
typographical (where appropriate) errors. The main purpose of editing and proofreading is to
improve the quality of your submission by removing mistakes and correcting generalized discourse
errors or writing inconsistencies. Essentially, you want to make sure that the content is properly
conveyed, as this will improve the overall impression of your submission and will improve your
marks (as well as the effectivity and persuasion of your arguments as a future prosecutor / lawyer
/ advocate).

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

Section C: Academic programme quality

Duration of module

One year: February to November 2023.

Composition of module

Learning unit 1: Introduction to Criminal Justice

Learning unit 2: Introduction and General Principles of Criminal Law

Learning unit 3: Criminal liability and the Legality Principle

Learning unit 4: Acknowledged Criminal Defences

Learning unit 5: Definitional Elements of Specific Crimes

Purpose of the module

A student who has successfully completed this module will be acquainted with the general
principles and procedures involved and employed in our criminal justice system. Moreover,
he/she will have acquired sufficient understanding to be able to demonstrate knowledge and
understanding of the function of criminal law, law of criminal procedure, and law of evidence in
the criminal justice process; what constitutes a crime and criminal liability; the defences
available to exclude or mitigate criminal responsibility; and specific crimes proscribed in South
Africa.

Action words that you may be exposed to in this study guide

Apply Put to practical use or make use of a relevant equation or law.

Group concepts or subjects together based on certain characteristics or
Classify
commonalities.
Point out the similarities and differences between objects or points of view. The
Compare
word contrast can also be used.
Define Give a short and clear description of a term or concept.
Demonstrate Show clearly/prove/make clear by reasoning or evidence/illustrate and explain,
especially with many examples.
Derive Deduce or infer something from the given information.

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 Tell in detail how a process works or how a subject appears. You need not
Describe
comment on the process or the subject or give your own point of view.
Differentiate Find differences between objects or statements.
Explain terms or concepts in your own words. Give comments or give your own
Discuss
point of view.
Distinguish Write down the differences between subjects or concepts.
Write about the subject in your own words. Clarify or give reasons – it may be
Explain useful to use examples or illustrations. You must prove that you understand the
content.
Formulate Express in a concise, systematic way.
Identify Establish the identity or recognise a process.
Illustrate Explain by means of detailed descriptions and drawings.
Interpret Explain or clarify the meaning of a concept/value.
List/Name Briefly write down the facts or main points.
Motivate Give reason(s) for your answer.
Name Nominate or specify a site or process.
Organise Arrange data according to certain criteria.
Relate Show the relation/connection of entities, how the concepts can be linked.
Solve Find an answer by using critical thinking and/or calculations.
Summarise Briefly state/list/write down only the most important detail/facts.
Show insight into or know the meaning/nature of a concept or term; to
Understand
comprehend.

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 Section D: Facilitation of learning

LEARNING UNIT 1: INTRODUCTION TO CRIMINAL JUSTICE

1.1. INTRODUCTION TO CRIMINAL JUSTICE

“Criminal justice is the system of practices and institutions of governments directed at upholding
social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal
penalties and rehabilitation efforts.”

The criminal justice system is regulated by the three branches of authority in South Africa:
1) Legislative authority (criminalizes certain conduct);
2) Judicial authority (adjudication by criminal courts); and
3) Executive authority (SAPS, prosecution by the NPA and correctional services, such as jails,
prisons, probation, and parole).

“In the criminal justice system, these distinct agencies operate together both under the rule of law
and as the principal means of maintaining the rule of law within society.”

“Society needs a reliable and fair system in which the guilty are separated from the innocent” and
in this way, criminal justice helps to protect the constitutional rights of all persons. In short, “…an
effective criminal justice system is… vital to our democracy” – DA v President of the Republic of
South Africa and Other 2013 (1) SA 248 (CC).

In a certain sense, “justice” is a matter of perspective. Criminal justice implies justice for victims of
crime (and society in general) through fair and proper punishment of criminal offenders, but also a
just procedural mechanism through which the guilt of the perpetrator is reasonably and objectively
considered. In other words, there is a constant interplay and balance of conflicting rights and
competing interests in “justice”. As a result, criminal justice must strike a dynamic and reasonable
balance between the broader interests of society and the interests of the individual perpetrator
(suspect/arrested/accused/detained/convicted/prisoner). This balancing of interests in criminal
justice must weigh up the individual perpetrator’s due process or procedural fairness in the
administration of justice against society’s interest in seeing that the injustice done by the
perpetrator be rectified through proper punishment (retribution theory).

• Crime is harmful not only to some individual(s) (victim/s) but also to a community, society, or
the state ("a public wrong") – i.e., crime influences everyone (directly or indirectly). For
example, theft of electrical cables may cause blackouts, or shoplifting results in price-hikes. In
this sense, we say that crime is against the public interest or against the broader interests of
society. In a democratic State, the interests of society are protected through the functioning of
state power. Therefore, it is generally accepted that the state has a duty to, inter alia, protect
society against criminal activity, the maintain of law and order, effective crime prevention and
enforcement, and provide a just and fair truth-seeking process, adjudication and sentencing of
a person who is clearly guilty.

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 Consequently, the State (South African Government) bears the primary constitutional duty to
proscribe criminal conduct and provide a procedurally fair mechanism for the enforcement
and punishment of such conduct. The State, acting with State authority, must investigate,
prosecute, adjudicate, and, where appropriate, punish the offender in the interest of the whole
of society in order to maintain the rule of law, uphold social control, and ensure stability and
peace in society.

• Criminal justice does not simply imply punishing the perpetrator, it requires a reasonable, fair,
and just process in dealing with criminal matters and arriving at a reasoned outcome. As a
result, an arrested/accused/detained persons are entitled to (1) a comprehensive list of
substantive fundamental human rights (e.g., dignity, freedom, equality, etc.), and (2) specific
procedural rights aimed at promoting due process / procedural fairness in the administration of
justice. The interests of the affected individual, therefore, includes, inter alia, protection against
the overzealous exercise of state power and wrongful detention / prosecution / conviction /
punishment, and the reasonable limitation or infringement of certain rights and freedoms of
individuals suspected of, arrested for, charged with, convicted of, and sentenced for, criminal
behaviour. The due process interests of the individual are further discussed in learning unit 2.

1.2. THE DIFFERENCES BETWEEN CRIMINAL LAW, LAW OF CRIMINAL

PROCEDURE AND LAW OF EVIDENCE

Successfully implementing a criminal justice system requires a fundamental interdependency

between substantive criminal law and adjective criminal law (law of criminal procedure and
evidence) as it pertains to the criminal justice system. Importantly, the principles applicable to the
criminal justice system do not, may not, and cannot operate in isolation from the Constitution of the
Republic of South Africa, 1996 (hereafter “Constitution”). The Constitution is the supreme law of our
country and the principles of criminal procedure (whether found in legislation, common law, and
case law), are directly subordinate to its provisions.

1.2.1. Criminal law

Criminal Law (substantive criminal law) provides for the content and meaning of criminal justice. It is
primarily concerned with the definitions and particular requirements for specific ‘crimes’, regulating
the principles relevant to determining criminal liability (guilt or innocence), and it also tells us which
punishment could be a suitable punishment in respect of a convicted accused.

“Criminal law is concerned with actions which are dangerous or harmful to society as a
whole, in which prosecution is pursued not by an individual but rather by the state. This is
because criminal law is a subdivision of public law, whereby the state acts with state
authority in the interest of society in general. The purpose of criminal law is to provide the
specific definition of what constitutes a crime and to prescribe punishments for committing
such a crime. No criminal law can be valid unless it includes both of these factors. The
subject of criminal justice is, of course, primarily concerned with the enforcement of criminal
law.”

As a body of substantive law/material law, the rules or principles of criminal law is found in common
law and statutory rules. Criminal law is a subdivision of substantive (content and meaning) public
law, whereby the State acts with State authority to prescribe what behaviour is considered criminal
(illegal) in the interest of justice and on behalf of society in general.
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Once it has been established that a crime (which corresponds with the prescribed definitional
elements) has been committed, the adjective element (law of criminal procedure and law of
evidence) of criminal justice takes over. The State’s institutional components of criminal justice act
in the interests of justice to enforce the norms of criminal law reliably and fairly in a manner that is
consistent with the Constitution, legislation, common law, moral, ethical, and social values of
society.

Together, the Law of Criminal Procedure and the Law of Evidence deals with the “process in the
court and how to prove what is necessary to prove the commission of the crime”. The Law of
Criminal Procedure and Evidence is the formal procedure that must be followed in order to apply
the Criminal Law in an orderly, fair and just way.

1.2.2. Law of criminal procedure

Criminal procedure is part of the adjective/formal (procedural) element of criminal justice. It forms
part of public law and focuses on the fair and proper procedures used to decide criminal liability
and puts substantive criminal law into action. It is, therefore, an integral component of the criminal
justice system and structurally based on the principle of access to justice – sec 34 of the
Constitution.

The law enforcement agencies of the State (police service and the prosecuting authority) must
exercise their investigatory and prosecutorial functions within the procedural framework
established by the Constitution, the law of criminal procedure, and the law of evidence. Most
importantly, the Criminal Procedure Act, Act 51 of 1977 (hereinafter referred to as the “CPA”) sets
out the rules on the formal procedure or machinery which brings criminal law into operation.

Law of criminal procedure provides the rules and mechanisms to ensure that the perpetrator is
subject to criminal justice in its pre-trial investigation; trial prosecution, adjudication, and
sentencing; and post-trial procedural mechanisms. In short, criminal procedure consists of all the
procedures necessary to enforce the norms of substantive criminal law.

Criminal procedure regulates, inter alia, the duties and powers of the police, especially in the
course of the investigation of a crime; the duties and powers of the prosecutorial authority; the
duties and powers of the criminal courts in the fair adjudication of criminal trials; and the role of
correctional services. Importantly, criminal procedure safeguards individual constitutional rights –
due process or procedural fairness – by imposing reasonable checks and balances on the
procedural powers of the police service and the prosecuting authority.

Criminal procedure plots the general course of criminal trials, including: pre-trial procedural
matters; bail, charge sheets (lower courts) and indictments (superior courts); pleading and plea
agreements; the courts verdict and imposition of sentence; post-trial remedies (appeal and
review); and the executive’s prerogatives of mercy, immunity, or freed pardon. During this process,
the State acts with State authority in the interest of society in general and bears the onus (burden)
to prove the guilt of the accused beyond a reasonable doubt. The accused remains innocent until
proven guilty.

1.2.3. Law of evidence

In the adjudication of disputes, courts and tribunals are required to consider all relevant facts in
order to arrive at the truth and decide on the appropriate outcome. In the process of litigation and
adjudication, the proving of facts is regulated by the law of evidence, which is a branch of
procedural law in general. In other words, the principles of law of evidence are generally
applicable to all formal disputes, civil or criminal. There are differences in the principles of evidence

16
between civil and criminal procedure, such as the relevant standards of proof and onus of proof;
some of the constitutional rights to a fair criminal trial, to which civil litigants are not entitled; and
the competence and compellability of witnesses.

As a branch of law, the law of evidence is categorised under the adjective law (formal /
procedural law). Procedural law gives practical meaning and effect to the rules of substantive law.
In other words, together with the law of procedure, the law of evidence makes it possible to
enforce one’s rights during a dispute. For example, the adjective law provides the practical
framework and guidelines through which I can claim damages from the wrongdoer following a car
accident.

In the criminal justice system, the Law of Evidence entails a body of legal rules, which regulate the
way that facts are proven in a court of law by way of admissible evidence in order to establish the
guilt or innocence of the accused. Law of Evidence determines which evidence may be adduced
before the court to prove a fact as well as how and by whom it may be done. It also deals with the
rules that permit the court to make factual findings without evidence being adduced. The scope of
the law of evidence is based on its specific functions, including:

• to determine what facts are legally admissible (permissible) in order to prove the facts in
dispute;
• to determine in what manner evidence should or may be adduced;
• what evidence may be lawfully withheld from the court of law;
• the rules to be taken into account when the court considers the weight or cogency of
evidence;
• the applicable standard of proof in a given situation on the party who bears the onus of
proof; and
• the rules that permit the court to make factual findings without evidence being adduced.

In short, we say that the law of Evidence determines what material may be presented as evidence,
by whom, in what manner and its probative value. Even more tersely, the Law of Evidence regulates
the proving of facts in a court of law by way of admissible evidence.

In summary, the interdependence of substantive (criminal law) and adjective law (law of criminal
procedure and evidence) as it pertains to the criminal justice system is essentially a matter of
legality and practical enforceability. The criminal justice system will lack legal certainty without
criminal law; and will be unable to hold perpetrators responsible without procedural enforcement
rules, i.e., the adjective element (law of criminal procedure and law of evidence) of criminal
justice. Therefore, there is an interdependency between defining the scope and content of criminal
behavior and procedurally enforcing criminal liability and punishment for such conduct.

1.3. THE DIFFERENCES BETWEEN NATIONAL CRIMINAL LAW, TRANSNATIONAL

CRIMINAL LAW AND INTERNATIONAL CRIMINAL LAW

1.3.1. Domestic crimes and national criminal law

As explained above, criminal law is a body of law that is concerned with conduct that constitutes a
crime and for which the responsible person may be held criminally accountable through
punishment. Most importantly, national criminal law (also called internal or domestic criminal law)
refers to the criminal norms and sanctions that is governed by the legal system of the country
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concerned and is only applicable within the border of that country. In other words, national
criminal law differs from one country to the next, and such rules are generally only applicable to
crimes committed within the national geographical boundaries of that country.

South African (national/domestic) criminal law are those principles that are only binding on
individuals and/or crimes committed within the national geographical boundaries of the Republic
of South Africa.

1.3.2. Transnational/transboundary crimes and transnational criminal law

Transnational or transboundary crimes are criminal behaviour that transcends international borders,
transgressing the laws of several states, or crimes that take place in one country and significantly
affecting another country. In other words, transnational or transboundary crimes have a
multinational character, but do not necessarily amount to crimes which violate or threaten
fundamental values or interests protected by international law, which is the case with international
crimes. For example, human and drug trafficking, terrorism, and piracy. In the South African
context, a good example of a transboundary crime would be rhino poaching occurring between
the borders of South Africa and Mozambique, or the theft of cattle in South Africa that are herded
across the border into Lesotho.

Considering that domestic courts may only exercise their jurisdiction within their defined national
territory, states have developed mechanisms to cooperate in transnational criminal matters. This is
referred to as transnational criminal law, with its primary function being the suppression and
criminalization of criminal activities that have actual or potential trans-boundary effects. This is
usually achieved through crime control treaties (international agreements) between states that
create an expectation of co-operation between governments in the event of transnational crimes
in order “to minimise or eliminate the potential havens from which certain crimes can be
committed and to which criminals can flee to escape prosecution and punishment.” The primary
mechanisms used in this regard are extradition. Extradition is the mechanism by which one
sovereign requests and obtains custody of a fugitive located within the jurisdiction and control of
another sovereign. For example, the formal request by the South African government to the
government of Malawi for the extradition of Shepherd Bushiri and his wife Mary. The couple fled
South Africa in November 2020 after they were granted bail facing charges of fraud and money-
laundering.

1.3.3. International crimes and international criminal law

As a branch of public international law, “international criminal law is a body of international rules
prescribing international crimes and regulating principles and procedures governing the
investigation, prosecution and punishment of these crimes.” It implies a universal (worldwide)
criminal justice system, which is closely related to the protection of international human rights
norms.

“International crimes” are crimes which violate or threaten fundamental values or interests
protected by international law (e.g., the protection of fundamental human rights) and are of
concern to the international community as a whole. A crime can obtain an international character
based on the extreme gravity and global effect of certain acts. Although national judiciaries have
the primary prosecutorial jurisdiction over international crimes and are often preferable,
international crimes often occur in settings where the de facto authority is complicit in such crimes,
or where national jurisdictional powers are unwilling or unable to undertake bona fide prosecutions.
Therefore, international criminal law implies a supranational or international control mechanism
aimed at the protection of human rights and the punishment for international crimes.
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General characteristics of international crimes:
► crimes which violate or threaten fundamental values or interests protected by international
law and which are of concern to the international community as a whole;
► criminal norms emanating from an international treaty (treaty crimes) or from customary
international law (customary international law crimes), without requiring intermediate
provision of domestic law;
► criminal norms which have direct binding force on individuals and therefore provide for
direct individual criminal responsibility;
► crimes which may be prosecuted before international or domestic criminal courts.
► The proscription of international crimes is aimed principally at the suppression of human
rights abuses and violations.

The most serious crimes that are of concern to the international community and threaten the
peace, security and well-being of the world, is known as the international core crimes. Article 5 of
the Rome Statute of the International Criminal Court limits the jurisdiction of the Court to the most
serious crimes of concern to the international community, which are identified as:
a) The crime of genocide (large-scale discriminate killing of an identifiable group, with the
specific intention to destroy that group, in part or in whole);

b) Crimes against humanity (inhumane acts, such as rape, torture or murder, that are purposely
committed against a civilian population, or an identifiable part thereof, on a massive scale,
or repeatedly over time);

c) War crimes (acts committed during war time, whether international or internal, and constitute
serious violations of the laws and customs of armed conflict, or international humanitarian
law, which in essence culminates the rules and principles that place restrictions on the use of
weapons and methods of warfare; protects people who are not, or are no longer,
participating in hostilities; and aims to protect human dignity and to limit suffering during times
of war); and

d) The crime of aggression (the use of armed force by a State against the sovereignty, territorial
integrity or political independence of another State through acts such as the bombardment,
invasion, attack or military occupation by the armed forces of a State on the territory of
another State). Similar to Russia’s military invasion of Ukraine in February 2022.

1.4. DIFFERENT ROLES OF THE PARALEGAL IN CRIMINAL MATTERS

• The paralegal will assist an accused as an observer, researcher, or assistant to the legal
representative of the accused.
• The paralegal can also fulfil the role of an advisor to a victim of crime, advising him or her on
constitutional rights and the processes that the state must follow.
• The paralegal can also monitor the whole process and facilitate an attorney’s intervention
when needed.
• The paralegal can also be a lay assessor in criminal proceedings in the lower courts.

1.4.1. Taking instructions

Preliminary consultation: During the first consultation the paralegal must first establish the reason
why he is being approached by the client. Persons may approach paralegals (or a legal
representative) for various reasons, ranging from merely seeking advice on whether certain

19
proposed conduct constitutes an offence or not, to requests for assistance in laying charges
against others. If an accused is put on trial, it must be remembered that a paralegal does not have
the right to appear in court and therefore these notes must be studied from the perspective
mentioned above.

Who approached you?

If you are approached by the very person who seeks the legal assistance, this part may be skipped.
However, if you are approached by a member of his family or by a friend, you first have to
determine why the prospective client did not approach you him-/herself. Is he perhaps in custody,
or is he hiding from the police?

If there are no obvious reasons why the client did not approach you, you should be extremely
careful in your handling of the request. Anything you say to the person that approaches you will
have to be conveyed to the prospective client. This is a highly unsatisfactory way of handling a
consultation and could lead to misunderstandings.

Since you have no control whatsoever over what the prospective client is told by the intermediary,
you may find that this may differ quite substantially from what you told the person that visited you.
Try and convince whoever it is that is visiting you of the necessity of you seeing the prospective
client as soon as possible so as to consult with him personally.

If the prospective client is in custody, your first duty will be to establish where he is being detained
and more or less on what charges. You will often find that the prospective client is held on different
charges than those which you are told of by his family or friends, and it might therefore be best to
have this information checked before you proceed too far with the consultation so that you know
exactly what you are up against. This will place you in a better position to give advice.

If the prospective client is hiding from the police, you must be extremely careful in what you tell the
person visiting you. In terms of our law, a person who assists someone in evading liability for an
offence, may qualify as an accessory after the fact and will therefore be guilty of an offence.

The professional privilege that exists between a client and his legal representative does not cover
discussions where the client requests advice on how to commit an offence. It would therefore
usually be in the best interests of yourself as well as of your client to convince him to give him-/her-
self up and to face the charges.

Try to arrange for a consultation with the prospective client as soon as possible and to try and
convince him of the sensibleness of this approach. If you succeed in convincing the client, this may
be used to the client's advantage during the trial and at the sentencing stage. Once a client has
agreed to hand him-/her-self over, you will accompany him to the police or inform the police that
they may question him in your presence and where this may be done.

1.4.2. The lay assessor in criminal proceedings in the lower courts

In the lower courts we get lay assessors. The assessor assists the magistrate in evaluating the facts
presented by either the State or the accused in a Magistrates’ court. Such an assessor is usually
referred to as a lay assessor since the appointment of assessors in the lower courts (as opposed to
the assessor in the High Court), is to a large extent aimed at promoting the idea of lay participation
in the adjudication of facts in criminal cases. An assessor in a lower court does not have to possess
any special knowledge or skills to be appointed, hence the commonly used term “lay” assessor. In
the High Court the criteria is different. A lay assessor is therefore a person who attends the whole
trial, sits next to the magistrate on the bench and assists the magistrate in adjudicating on the facts
and/or punishment in a criminal trial. Lay assessors are chosen from the community.

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The following criteria apply in the selection of lay assessors: the cultural and social environment
from which the accused originates; the educational background of the accused; the nature and
the seriousness of the offence; the extent or probable extent of the punishment to which the
accused is or will be exposed upon conviction, whichever the case may be; the views, if any, of
the accused person regarding summoning of assessors in respect of the proceedings concerned;
any particular interest which the community in general, or any specific community may have in the
adjudication of the matter concerned; or any other matter or circumstance which he or she may
deem to be indicative of the desirability of summoning an assessor or assessors.

Enquiries about becoming a lay assessor may be made at any local Magistrate’s Court. A judicial
officer of a regional court must be assisted by two assessors at the trial of an accused person in
respect of murder, irrespective whether there are other charges, unless the accused requests that
the trial proceeds without assessors. The judicial officer presiding at a trial has the discretion to
appoint assessors to assist him/her with the trial if he or she considers it expedient for the
administration of justice. The judicial officer also has the discretion to decide whether he is going to
appoint one or two assessors in respect of sentencing proceedings only.

Once the oath has been administered, the assessor will be a member of the court, subject to the
following:

► where the assessor is available at bail proceedings or the sentencing stage, he shall assist the
judicial officer in an advisory capacity only;
► any matter of law arising for decision at such trial and any question arising as to whether a
matter for decision is a matter of fact or a matter of law, shall be decided by the presiding
judicial officer and no assessor shall have a voice in any such decision;
► the presiding judicial officer may adjourn the argument upon any such matter or question as is
mentioned above and may sit alone for the hearing of such argument and the decision of
such matter or question;
► upon all matters of fact, the decision or finding of the majority of the members of the court
shall be the decision or finding of the court, except where only one assessor sits with the
presiding judicial officer, in which case the decision or finding of such judicial officer shall be
the decision or finding of the court if there is a difference of opinion.

The assessor may recuse him - or herself from the proceedings. Alternatively, a lay assessor may be
recused from the proceedings if the prosecutor or the accused brings such an application. Judicial
disqualification or recusal “refers to the act of abstaining from participation in an official action
such as a legal proceeding due to a conflict of interest of the presiding court official or
administrative officer”. The judicial officer has to be satisfied that:
► the assessor has a personal interest in the proceedings concerned;
► reasonable grounds exist for believing that there is likely to be a conflict of interest as a result of
the assessor’s participation in the proceedings concerned; or
► reasonable grounds exist for believing that there is a likelihood of bias on the part of the
assessor

If the assessor dies, becomes unable to act, is absent for any reason, or has been recused at any
stage before the completion of the proceedings the judicial officer may, in the interest of justice
and after due consideration of arguments by the prosecutor and the accused, direct that: (1) the
proceedings continue before the remaining members of the court; or (2) that the proceedings start
afresh, or (3) where the assessor is absent, to postpone the proceedings in order to obtain the
assessor’s presence.

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A lay assessor will be entitled to compensation for expenses incurred in connection with his or her
attendance (i.e., travelling expenses, etc.) and in respect of his or her services at the trial. The
Minister of Justice and Constitutional Development determines the amount in consultation with the
Minister of Finance. In the event of the lay assessor being an employee of any State Department,
he or she will not be entitled to any compensation.

1.5. ROLE-PLAYERS AND INSTITUTIONS IN THE CRIMINAL JUSTICE SYSTEM

A crime (offence) may consist of a person either performing a certain forbidden act or causing a
certain forbidden result. In other words, crime implies two counterparts, (1) a perpetrator
responsible for performing the criminal conduct, and (2) the infringement of the interests of justice
of society (“a public wrong” - which implies that it is harmful not only to some individual or
individual interest, but also to affected family members of a victim, a community, society, the
administration of justice, public welfare, or the state).
.

1.5.1. The person allegedly responsible for the criminal conduct

In most instances, perpetrators are natural persons, yet there is limited scope for holding juristic
persons criminally liable (corporate criminal liability). We will focus on criminal conduct by natural
persons.

The term “alleged offender” is a general term used to describe the alleged wrongdoer, whilst
neutral as to guilt or innocence. However, there are more suitable and legally technical correct
terms to refer to the alleged offender during criminal proceedings, which identifying term or
multiplicity of intersecting identifying terms is important for purposes of determining the due process
protections provided for in sec 35 of the Constitution.

SECTION 35 OF THE CONSTITUTION

Section 35 enshrines due process and guarantees certain fundamental criminal procedural rights of
arrested, detained and accused people, including: the right to silence, protection against self-
incrimination; the right to counsel and legal aid; the right to a fair trial; the presumption of
innocence; and the prohibition of double jeopardy and ex post facto crimes.

1. Everyone who is arrested for allegedly committing an offence has the right-
a. to remain silent;
b. to be informed promptly-
i. of the right to remain silent; and
ii. of the consequences of not remaining silent;
c. not to be compelled to make any confession or admission that could be used in
evidence against that person;
d. to be brought before a court as soon as reasonably possible, but not later than-
i. 48 hours after the arrest; or
ii. the end of the first court day after the expiry of the 48 hours, if the 48 hours expire
outside ordinary court hours or on a day which is not an ordinary court day;
e. at the first court appearance after being arrested, to be charged or to be informed of
the reason for the detention to continue, or to be released; and
f. to be released from detention if the interests of justice permit, subject to reasonable
conditions.

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2. Everyone who is detained, including every sentenced prisoner, has the right-
a. to be informed promptly of the reason for being detained;
b. to choose, and to consult with, a legal practitioner, and to be informed of this right
promptly;
c. to have a legal practitioner assigned to the detained person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly;
d. to challenge the lawfulness of the detention in person before a court and, if the
detention is unlawful, to be released;
e. to conditions of detention that are consistent with human dignity, including at least
exercise and the provision, at state expense, of adequate accommodation, nutrition,
reading material and medical treatment; and
f. to communicate with, and be visited by, that person's-
i. spouse or partner;
ii. next of kin;
iii. chosen religious counsellor; and
iv. chosen medical practitioner.

3. Every accused person has a right to a fair trial, which includes the right-
a. to be informed of the charge with sufficient detail to answer it;
b. to have adequate time and facilities to prepare a defence;
c. to a public trial before an ordinary court;
d. to have their trial begin and conclude without unreasonable delay;
e. to be present when being tried;
f. to choose, and be represented by, a legal practitioner, and to be informed of this right
promptly;
g. to have a legal practitioner assigned to the accused person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly;
h. to be presumed innocent, to remain silent, and not to testify during the proceedings;
i. to adduce and challenge evidence;
j. not to be compelled to give self-incriminating evidence;
k. to be tried in a language that the accused person understands or, if that is not
practicable, to have the proceedings interpreted in that language;
l. not to be convicted for an act or omission that was not an offence under either
national or international law at the time it was committed or omitted;
m. not to be tried for an offence in respect of an act or omission for which that person has
previously been either acquitted or convicted;
n. to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing; and
o. of appeal to, or review by, a higher court.

4. Whenever this section requires information to be given to a person, that information must be
given in a language that the person understands.

5. Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if
the admission of that evidence would render the trial unfair or otherwise be detrimental to
the administration of justice

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The legally correct terms to refer to the alleged offender during the criminal justice process include:

• Suspect – is a person of interest in relation to the commission of the offence. He/she is the
person(s) who is suspected by the police of having committed an offence. A suspect has not
been formally charged with the alleged offence and may or may not be in police custody
(detention) for purposes of questioning. Initially, there may be multiple suspects, which the
police will consider and systematically eliminate as applicable. It remains unclear at what
stage a suspect being questioned becomes entitled to the same warnings and protection as
an arrested or detained person. For example, if the police questions me in my house, rather
than in police custody at the police station, I may be in a very vulnerable position as I am not
being detained and seemingly not entitled to the Constitutional protections of section 35,
although I am still at risk of saying something incriminating.

• Arrested – an arrested person is someone who is taken into physical custody by the arrestor,
whether police official (s39-41 of the CPA) or private citizen (s42 of the CPA). An arrester person
has not been formally charged with the alleged offence but is in police custody (detention).
The purpose of arrest is to detain the person, whether in anticipation of trial or in consideration
of a formal charge (a person may only be detained for 48 hours without being charged). A
person who has been arrested is in detention from the moment of his/her arrest. An arrested
person will be entitled to the rights listed in sec 35(1) of the Constitution.

Per definition (s39 of the CPA), an arrested person is also a detained person, and will, therefore,
be entitled to the rights listed in sec 35(2) of the Constitution. Most notably, the police’s power
to detain a person lapses after 48 hours, after which only a court may order a further detention.
However, a detained person is not necessarily or only, an arrested person. An arrested person

• Detainee / detained person – the police may “detain” (keep in custody) a person by depriving
him/her of their freedom of movement and placing him/her under the effective control of a
State authority. Such persons are entitled to the rights listed in sec 35(2) of the Constitution. A
detained person is any person who is deprived of his or her liberty in the sense that he or she is
under the effective control of a State authority. A person may be detained for various reasons,
including: (1) a suspect or arrested person detained in police custody for purposes of
questioning (interrogation) without being charged; (2) an awaiting trial prisoner, i.e., an
accused kept in detention pending the completion of the trial; or (3) a sentenced prisoner
kept in detention.

• Accused – a suspect/arrested person that has been formally charged becomes known as an
accused person or the accused. This may happen by way of summons or written notice to
appear in court. Such accused persons are entitled to the rights listed in sec 35(3) of the
Constitution. In addition, those accused persons who have been arrested and kept in
detention in anticipation of trial, will also be entitled to the rights listed in sec 35(1) & (2) of the
Constitution.

• Convicted – if the accused is convicted (found guilty) of the offence by the court, he is known
as the “convict” and is usually sentenced. Such sentence may or may not include a form of
detention. Convicted prisoners / sentenced prisoners are entitled to at least the rights listed in
sec 35(2) and sec 35(n) & (o) of the Constitution.

• Acquitted – opposite of convicted. If the accused is found not guilty of the offence by the
court (i.e., acquitted), he is no longer an accused and may no longer be detained.

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 • Prisoner / inmate - If the convicted person is sentenced to be imprisoned (or otherwise
detained), he becomes known as the “sentenced prisoner”. However, an “inmate” or prisoner
may also include an awaiting trial prisoner, i.e., an accused kept in detention pending the
completion of the trial. Awaiting trial prisoners are usually kept separately from
sentenced/convicted prisoners. Awaiting trial prisoners are entitled to sections 35(1), (2) and (3)
of the Constitution.

Intersection of ‘identifiers’ above - clearly an alleged offender may be identified with one or
more of the descriptors above at a given time, depending on the circumstances. For example,
a person is usually an arrested and a detainee at the same time or a convict and detainee at
the same time. The entitlement to procedural rights in terms of sec 35(1) – (3) depends on the
status of the specific person. It therefore, necessary for you to be able to distinguish between
the different legal descriptions of an alleged offender and the due process rights that
accompany such a description.

• Defence council – private legal practitioners (attorneys and advocates) representing the
accused during criminal proceedings. Each accused is entitled to legal representation and the
right to be informed thereof promptly. The defence attorney or advocate’s duty is to represent
the accused during his trial and to present the accused’s case to the court. They are court
officials and should always respect the court. If the accused is found guilty, it is their duty to
argue facts in mitigation of sentence on his behalf. Such legal representative may include
practitioners from Legal Aid South Africa, which provide free legal assistance to impoverished
accused.

1.5.2. The person or interest affected

Crime may harm or aggrieve a person (e.g., assault harms a person physically) or a person’s
interests (e.g., theft harms a person’s economic interests in his/her property).

• The victim – person/s directly wronged or aggrieved by the criminal conduct. The position or
role of the victim (or relatives of the deceased) is in principle confined to that of an ordinary
witness. There is a viewpoint that the South African criminal justice system is offender-orientated
to the detriment of the rights and interests of victims and other witnesses.

• The complainant – someone who makes a report of criminal wrongdoing. A complainant can
be the victim or witness of an alleged crime, or the family member of a victim. In some types of
cases for instance tax evasion, the South African Revenue Services (SARS) will act as the
complainant. A criminal complaint may be reported to a police officer in the vicinity of the
criminal incident, or in person by a complainant to a police station. A complainant will make a
detailed statement to the police regarding the facts and circumstances of the complaint.

As mentioned, crime is harmful not only to an individual’s interests but also to the victim’s family and
dependants, the community, society, or the state ("a public wrong") – i.e., crime influences
everyone (directly or indirectly). In this sense, we say that crime is against the public interest or
against the broader interests of society. For this reason, it was already mentioned above that the
interests of society are reflected and enforced through the functioning of state powers, including
the maintenance of law and order, effective criminal law enforcement, the protective functions of
State organs against criminal activity, and a just and fair truth-seeking process, adjudication and
sentencing of a person who is clearly guilty.

25
Therefore, it is generally accepted that the state has a duty to protect citizens, and prevent and
combat crime, and will therefore prescribe which conduct constitutes a criminal offence through its
substantive criminal law and provide a procedural mechanism for the enforcement and
punishment of such conduct. In short, it is the primary constitutional duty of the State (South African
Government) to bear the responsibility for prosecuting crime.

Consequently, it is appropriate that the State, acting with State authority, investigate, prosecute,
and punish the offender in the interest of the whole of society in order to maintain the rule of law,
upholding social control, and ensure stability and peace in society. This will be done through the
law enforcement agencies of the State. Most importantly, the police services must exercise their
investigatory functions, the prosecuting authority must exercise their prosecutorial functions, and
the criminal courts must exercise their judicial function. There are, however, various other state
agencies or institutions and specific office bearers that play different roles in the criminal justice
process:

• The “State” – the “State’s” interests in criminal prosecutions is represented by the National
Prosecuting Authority (NPA) as the instigating party – dominus litis. I.e., State v Accused. The
State through the NPA, has the power to institute criminal prosecutions on behalf and in the
name of, the state and society as a whole. The NPA and its various office bearers will be
discussed in more detail later.

• The court – depending on the context, the term ‘court’ could refer to a specific court, or the
judgement of a specific court, or to the presiding officer in a matter.

• The judge or magistrate - The general distinction between a judge and a magistrate is that a
judge is the presiding officer during a trial held in the High Court and a magistrate in the lower
courts. Both the judge and magistrate during a criminal trial are the impartial and objective
arbitrators in the matter placed before them. It is their duty to listen to the evidence placed
before them and to come to a conclusion after adhering to and applying all relevant
substantive and procedural law in respect of the accused’s guilt or innocence and then to
sentence the accused accordingly. Apart from these duties, both have other administrative
duties to fulfill in the criminal justice process. The magistrates and additional magistrates have
duties such as the issuing of warrants of arrest and taking of confessions. Regional magistrates’
duties are similar but do not have the extensive scope of that of magistrates. Regional
magistrates, for instance, are excluded from taking confessions from an accused. Both judges
and magistrates may, in terms of Section 205 of the CPA, take evidence in respect of alleged
offences. The judges have the duty to issue certificates of review in terms of Section 304 of the
CPA. Additionally, they listen to appeals from the Magistrates’ Court and may set aside
convictions and interfere with sentences the magistrates and regional magistrates have ruled.

• “Peace officer” – In this regard, various legislative definitions exist including section 1 of the
CPA, which must be read with s334 of the CPA. In broad terms, a peace officer includes, but is
not necessarily limited to, any magistrate, justice of the peace, police official, a traffic officer
and a traffic warden (s 1 of the National Road Traffic Act, 93 of 1996), any member of the
Department of Correctional Services, or anyone appointed a peace officer according to
section 334 of the CPA.

• The South African Police - Section 1 of the Police Act 7 of 1958 defines a member of the police
force as any commissioned officer, warrant officer, non-commissioned officer or constable
serving the South African Police and includes any member of the police reserve or reserve
police force, subject to directions of the minister. It is the function of the police service to
prevent, combat and investigate crime, to maintain good public order, to protect and secure
the inhabitants of the Republic and their property, and to uphold and enforce the law. These
purposes of the SAPS are indicative of the importance of the role they play in the criminal
26
 justice system. The prosecuting authority and the police force are dependent on each other to
place the available evidence before court. After a crime has been committed, the police will
normally receive a complaint from the complainant. They will take the necessary statement(s)
and submit it to the public prosecutor who, after having examined the police docket, gives
instructions to the police officer investigating the case (hereafter investigating officer). The
investigating officer will carry out the instructions by further investigating the crime and he or
she will thereafter submit the docket to the prosecutor with a report indicating whether the
instructions had been executed. After the prosecutor has perused all the statements and
evidentiary material and is satisfied that there is a prima facie case against an accused
person, he or she may decide to prosecute. After the accused person appears in court and
the matter is adjourned for the commencement of the trial, the prosecutor will submit the
docket to the investigating officer with instructions to subpoena the relevant state witnesses to
attend the hearing and to testify on behalf of the prosecution.

o Law enforcement officer - The South African Police Service Act, 68 of 1995 (SAPSA) defines a
member or law enforcement officer as:
 all persons who immediately before the commencement of the SAPSA were members
of the force and appointed under the Rationalisation Proclamation;
 members appointed in terms of section 28(2) of the SAPSA (appointed by the
commissioner); and
 persons who became members of the Reserve under section 48(2) of the SAPSA;
 members appointed to the Directorate for Priority Crime Investigation established by
section 17C of the SAPSA;
 any temporary member while employed in the Service;
 any person appointed in terms of any other law to serve in the Service and in respect
of whom the minister (for Safety and Security) has prescribed that he or she be
deemed to be a member of the Service for purposes of the SAPSA;
 any person designated under section 29 of the SAPSA as a member.
The phrase ‘any other law’ makes provision that legislation, other than the SAPSA, may
authorise the appointment of additional persons as members or law enforcement officers.
Consequently, properly appointed road traffic law enforcement officers are regarded as
members or law enforcement officers in terms of the Road Traffic Management Corporation
Act, 20 of 1999 (RTMCA).

o Road traffic law enforcement officer - Section 1 of the RTMCA defines a ‘road traffic law
enforcement officer’ as an: authorised officer appointed in terms of section 3A of the
National Road Traffic Act, 1996 (Act 93 of 1996), who meets the standards set in the national
road traffic law enforcement code referred to in section 32(1) of this Act, and includes a
member of a municipal police service which may be established in terms of section 64A of
the South African Police Service Act, 1995 (Act 68 of 1995). Section 1 of the National Road
Traffic Act, 93 of 1996 defines a ‘traffic officer’ in similar terms: ‘traffic officer’ means a traffic
officer appointed in terms of section 3A, and any member of the Service, and any member
of the municipal police service, both as defined in section 1 of the South African Police
Service Act, 68 of 1995, and for the purposes of Chapters V, IX and X and sections 74 and 78
of this Act, includes a peace officer. The Chief Executive Officer of the Road Traffic
Management Corporation (RTMC), provincial authority or a local authority may appoint
persons as traffic officers or as reserve traffic officers.

• The interpreter - An interpreter is allocated to each criminal court daily. This is to make
provision for the instances where evidence is given in any proceedings in any language with
which the court or a party or his representative is not sufficiently conversant. Such evidence
must be interpreted by a competent interpreter sworn to interpret faithfully and to the best of
27
 his ability in the language concerned. Before anybody is employed as an interpreter the court
may, if in its opinion it is expedient to do so, or if any party on reasonable grounds so desires,
satisfy itself as to the competence and integrity of such person. The duties of an interpreter in
the Magistrates’ Court also include that they must write the cases on the roll for the day into
the court book. If the services of an interpreter are needed for any language other than one of
the official languages of the Republic, a party normally would approach the Chief Interpreter
to assist in employing such an interpreter.

• The court orderly - As is the case with so many seemingly unimportant jobs, the orderly plays a
very important role. The court orderly is a member of the South African Police Services. An
orderly is allocated to each criminal court daily. The duties of the court orderly entail, inter alia:
to call and escort the presiding officer from his / her office to court and back; to call the court
room to order at the commencement and adjournment of the court; to maintain order, silence
and decorum inside and in the vicinity of the court; to call witnesses / accused to the stand /
dock; to escort accused / witnesses in custody to the court room from the cells; to safeguard
prisoners whilst the court is in session, during adjournments and during inspections in loco; to
escort sentenced accused to the Clerk of the Court for payments of fines or for the organizing
of deferred fines; to escort accused to the Clerk of the Court to pay bail determined by the
court; to hand court documents and exhibits to the magistrate / witnesses / accused / officers
of court; to receive exhibits from the Clerk of the Court for safekeeping whilst court is in session.
To return exhibits to the Clerk of the Court when court adjourns; to remove an accused from
the court room if the court so directs (s159 CPA); to arrest persons for Contempt of Court on
direction of the magistrate; to take fingerprints of accused after sentence for completion of
SAP 69 and to take SAP 69’s to Clerk of Court for completion; assist the prosecutor in any way
possible; and to execute any order of the magistrate in connection with the court
proceedings.

• The stenographer - A stenographer is responsible for the mechanical recordings made during
any court sessions. The stenographer has the duty to see that the recorder is in good working
order and that all trial proceedings are recorded.

• Correctional Supervision Officers - In terms of section 276(1)(h) and section 276(1)(i) of the CPA
the judge or magistrate may impose a sentence of correctional supervision. The legal
representative of the accused or the court will in appropriate instances before sentencing the
accused apply for a correctional supervision report from a Correctional Supervision Officer. The
Correctional Supervision Officer is employed by the Department of Correctional Supervision. His
duty is to compile a report in which he discusses the personal circumstances of the accused
and whether the accused is a suitable candidate for Correctional supervision.

• Correctional Services - Before trial and (possible) conviction the Correctional Services are from
time to time responsible for the detention of persons who have not yet been tried or convicted.
Such persons are known as "awaiting-trial" prisoners. Prisoners awaiting trial are detained
separately from convicted prisoners and are not supposed to encounter convicted prisoners.
They also enjoy certain privileges which convicted prisoners do not have. Their legal
representatives can visit them during reasonable hours and to consult with them in private.
They can retain their personal clothes and belongings that they will reasonably require. The
Department of Correctional Services is responsible to detain persons sentenced to
imprisonment. Once a person is sentenced to imprisonment, the court issues a warrant in which
the correctional services are ordered to take the person identified in the warrant into custody
and to detain him for the specified period.

• The assessors – Depending on the applicable court, assessors are sometimes appointed to
assist a magistrate or judge. In the lower courts we get lay assessors, which was discussed

28
 above. In total contrast to the lay assessors (who come from the general public), the assessors
in the High Court are experienced in the law and the administration of justice. They even have
the authority to override a judge’s decision on the facts, but not on a legal issue.

In the High Court a judge may ask for two assessors to sit with him in a criminal trail where the
legal and evidentiary issues are difficult, or where there are many counts to be adjudicated
upon. Section 145 of the CPA makes provision for a judge in the High Court to appoint one or
two assessors in a criminal trial. The assessor appointed in the High Court needs to be a person
who, in the opinion of the presiding judge, has experience in the administration of justice or
skill in any matter which may be considered at the trial.

They may therefore have experience either in the law, or any other matter that my form part of
the issues in the trial. These assessors are therefore not lay assessors. High Court judges would
for example often appoint legal academics from universities to act as assessors. Should a
matter be technical in nature, an engineer with qualifications and experience in that specific
field may be appointed as assessor in the High Court.

1.6. LEGAL ASSISTANCE TO THE ACCUSED

It is evident from the list of due process rights in section 35 of the Constitution, that the arrested /
detained / accused person is entitled to a host of important constitutional rights. Chapter 2 of the
Constitution, known as the “Bill of Rights”, enshrines the rights of all people in our country and affirms
the democratic values of human dignity, equality and freedom. This also applies to criminal aspects
of our law including the Criminal Procedure Act 51 of 1977.

1.6.1. The right to legal representation

The constitutionally entrenched right to legal representation may only be claimed by arrested,
detained or accused persons, who, after being promptly informed of the right, may choose their
own legal representative (detained person - sec 35(2)(b) and accused person – sec 35(3)(f)), or to
have a legal practitioner assigned to them at State expense but only where substantial injustice
would otherwise result (detained person - sec 35(2)(c) and accused person - sec 35(3)(g)). The
right is confirmed in section 73(1)–(2) of the CPA.

The detained/arrested/accused person has to be, or not be, legally represented by a competent
legal representative, provided such a waiver was voluntary and was based on an informed choice.
However, legal representation is an integral part of the accused’s right to a fair trial, and its
procedural purpose is to protect the accused's right to silence, the right against self-incrimination,
and the right to be presumed innocent until proven guilty.

Once a legal representative has been appointed or assigned, the representative must represent his
or her client to the best of his or her ability within the framework of the established duties of a legal
practitioner.

Without a legal practitioner, it would be very difficult for a layperson to properly conduct himself
during the different stages of the criminal justice process. Among other things, it may undermine his
ability to adduce and challenge evidence, to enforce his right to remain silent and privilege
against self-incrimination, and to properly prepare for trial if he remains in police custody. In short,
legal representation promotes the procedural fairness of the criminal justice processes. In other
words, if an accused is represented by a legal practitioner, the concept of a fair trial is promoted.
Although magistrates and judges have a duty to assist an undefended or unrepresented accused,

29
common sense dictates that the accused will benefit if he has a legal representative that is familiar
with the procedural aspects of the law as well as the substantive law.

The right to legal assistance and to be informed thereof must be explained to an accused or
detained person at every stage of criminal proceedings where the co-operation of the person is
required. During pre-trial to an arrested (detained) person by the police and during court
proceedings to an accused by the presiding officer.

An accused is from the time of his arrest entitled to have access to a legal representative. This right
exit whether he has been formally charged or not. It follows that this right can be exercised where
the person is detained by the police as a suspect.

It is also an accepted rule of practice that a suspect who participates in an identification parade
should be informed that his legal representative may be present at the parade.

An accused is not entitled to be legally represented at a photographic identification parade.

During a trial the right of an accused to legal representation becomes meaningless if an accused is
not given enough time to obtain and to consult with a legal representative.

1.6.2. Legal representation at State expense

As a result of socio-economic factors, as well as the after-effects of colonialization and Apartheid,
access the justice remains a rare commodity in South Africa. However, in the context of criminal
justice, an exclusionary approach of access to justice will undermine the Constitutional values
(dignity, freedom, and equality) of our democratic state, as well as the interests of justice.
Therefore, a very important right enshrined in sections 35(2)(c) and 35(3)(g), is the right of legal
representation, which ensures procedural equality for all, regardless of status.

The right of an arrested, accused or detained person to have a legal practitioner assigned by the
state and at state expense, if substantial injustice would otherwise result, and to be informed of this
right, means that someone charged in criminal proceedings who cannot afford legal
representation is entitled to legal representation at state expense.
There is a duty on judicial officers to inform unrepresented accused of their right to legal
representation. The courts have held the view that the presiding officer has a duty, before the start
of the trial, to determine whether the absence of legal representation will place an indigent
accused at such a disadvantage that the trial that will follow would be grossly unfair. In
determining this question, it is expected of the presiding officer to hold an enquiry during which the
following aspects are covered:
o inherent factual or legal simplicity or complexity of the case;
o personal resources of the accused (e.g., how mature, sophisticated, intelligent and articulate
he looks and sounds); and
o the gravity of the case and the possible consequences of a conviction.

To uphold an impoverished or indigent person’s procedural equality in criminal proceedings, Legal

Aid South Africa Act 39 of 2014 (LASA Act) makes provision for free legal aid to impoverished
persons by direction of the courts in criminal matters. Legal Aid South Africa has arrangements with
the Magistrates’ Courts to assist any indigent accused in obtaining the services of a legal
representative. The magistrates and regional magistrates will inform the accused of his or her right
to apply for free representation. At all Magistrates’ Courts a Legal Aid Officer will be available to
assist the accused with such an application.

It does not automatically follow that Legal Aid South Africa will assist the accused. Certain steps will
be taken by the Legal Aid Officer to determine whether the accused qualifies for legal aid. A

30
means test is applied and if it is found that the accused is poor enough to be assisted, legal
representation will be arranged. The test to be applied when determining if an accused is entitled
to legal representation at State expense as provided for in the Constitution is contained in section
22(1)(a) of the LASA Act, and essentially pertains to the following determination:

► Is the accused able to pay for his own legal representation?

► If the accused is unable to do so, the question then is whether substantial injustice would
otherwise result should legal representation not be afforded at State expense?

More information may be obtained at www.legal-aid.co.za.

The Constitutional Court noted that where a legal representative is appointed for an accused at
state expense in terms of section 35(3)(g) of the Constitution, the State is not compelled to appoint
a legal representative chosen by the accused.

1.6.3. Postponement to obtain legal representation

Where an accused applies for the matter to be postponed for the purposes of obtaining a legal
representative, the court has the discretion to grant or refuse such an application. Certain factors
have to be considered by the court before deciding. Some of the factors are as follows:
► The absence of any fault on the part of the accused.
► Liberty pending trial and the amount of time available to the accused to obtain legal
representation.
► The inconvenience to the State witnesses and the congested court rolls.
► Where the accused’s dissatisfaction is not trivial and unreasonable and he or she wishes to
obtain the services of another legal representative.
► In terms of s 35(2)(b) of the Constitution everyone who is detained, including every
sentenced prisoner, has the right to choose, and to consult with, a legal practitioner, and to
be informed of this right promptly. An accused person has the constitutional right to choose,
and be represented by, a legal practitioner, and to be informed of this right promptly (s
35(3)(f) of the Constitution).

Detained persons, accused and sentenced prisoners all have the right to have a legal practitioner
assigned to them by the State and at State expense, if substantial injustice would otherwise result,
and to be informed of this right promptly (s 35(2)(c) and 35(3)(g)).

*******

1.7. SELF-EVALUATION QUESTIONS

1. What are the differences between the criminal law, law of criminal procedure and law of
evidence?
2. Briefly differentiate between national, transnational and international criminal law.
3. List the general characteristics of international crimes.
4. Briefly explain the following terms: ‘international crimes’, ‘transnational crimes’, ‘international
core crimes’.
5. Briefly define the international core crimes.
6. Why is the first consultation important?

31
7. Is it possible for you to receive instructions from a family member on behalf of an accused?
8. What are the two types of assessors the law makes provision for during a criminal trial?
9. Discuss the position of the lay assessor with reference to:
a. The criteria for selection to be a lay assessor
b. When a magistrate is compelled to appoint a lay assessor
c. When a magistrate is not compelled to appoint a lay assessor
d. When may a lay assessor be recused
e. The role that a lay assessor plays
10. Mr. Y was appointed an assessor in a murder trial held at the Johannesburg Regional Court.
The state has led their first witness. The defense council has to start with cross examination. Mr. Y
has failed to attend court with no explanation. What may the Magistrate do?

1.8. ASSESSMENT CRITERIA

When you have worked though this unit and answered the self-evaluation questions, you should be
able to:

► Explain the difference between Criminal Law and Law of Criminal Procedure and Evidence;

► Explain the difference between national, transnational and international criminal law;

► Explain the difference between national, transnational and international crimes;

► Know what to ask during a consultation;

► Know what a lay assessor is and when a lay assessor is used;

► Know the different roles of a paralegal in the criminal justice system; and

► Apply the aspects of the right of an accused to legal representation.

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 LEARNING UNIT 2: INTRODUCTION AND GENERAL PRINCIPLES OF
CRIMINAL LAW
2.1. WHAT IS A CRIME?

Criminal law relates to criminal conduct. Therefore, before conceptualizing ‘criminal law’, we
should consider what ‘crime’ or ‘criminal behaviour’ constitutes.

A crime or offence (or criminal offence) is behavior, either by act or omission, defined by statutory
or common law as deserving of punishment because the conduct or its consequences are harmful
not only to some individual but also to a community, society, or the state ("a public wrong").

Based on this definition, the following characteristics are important to note:

1. A crime is foremost about the conduct of a person, whether act or omission, for which he/she is
to blame (responsible);

2. It is conduct that is against the law or illegal (unlawful), as prescribed by statutory or common
law, because either the act itself is forbidden or the act causes a certain forbidden result;

3. It is an infringement of the interests of justice in society (“a public wrong”), which implies that it is
harmful not only to some individual (or individual interest) but also to affected family members
of a victim, a community, society, the administration of justice, public welfare, or the state; and
as a result

4. It warrants “punishment”.

As mentioned, crime influences everyone (directly or indirectly), it is a public wrong. It is harmful not
only to the interests of the individual victim(s), but also society as a whole. For example, theft of
electrical cables may cause blackouts, or shoplifting results in price-hikes. In this sense, we say that
crime is against the public interest or against the broader interests of society.
In a democratic State, the interests of society are protected through the functioning of state power.
Therefore, it is generally accepted that the state has a duty to, inter alia, protect society against
criminal activity, maintain law and order, implement effective crime prevention and enforcement
mechanisms, and provide a just and fair truth-seeking process, adjudication and sentencing of a
person who is clearly guilty.
Consequently, the State (South African Government) bears the primary constitutional duty to
protect citizens, and prevent and combat crime, and will therefore proscribe which conduct
constitutes a criminal offence through its substantive criminal law and provide a fair procedural
mechanism for the enforcement, adjudication, and punishment of such conduct through adjective
criminal law (law of criminal procedure and evidence). The State, acting with State authority, must
investigate, prosecute, adjudicate, and, where appropriate, punish the offender in the interest of
justice and on behalf of the whole of society in order to maintain the rule of law, uphold social
control, and ensure stability and peace in society. For this reason, all charge sheets and criminal
cases are citied as S v Xola or State v Xola (surname of the accused).
In relation to crime and criminal justice, State authority will be exercised through various criminal
law enforcement agencies of the State. Most importantly, the police services (South African Police
Services “SAPS”) must exercise their crime prevention, combating and investigatory functions, the
prosecuting authority (National Prosecuting Authority – “NPA”) must exercise their prosecutorial
functions, and the criminal courts (judiciary) must exercise their judicial function in adjudicating
criminal trials. There are, however, various other state agencies or institutions and specific office

33
bearers that play different roles in the criminal justice process, such as correctional services officials,
road traffic officials, and office bearers of the courts.
While the relevant state agencies will effectively take control once a crime has been committed, it
should not be overlooked that crime is more than the breaking of the law or offending against the
state – it is an injury or wrong done to another person, in most instances it is an infringement of a
victim’s fundamental human rights.
Conversely, it should also be noted that a crime is more than an injury or wrong to another person.
If “crime” is defined in such a tersely manner, there would seem to be no distinction between
crimes a delict.

How is a crime distinguished from a delict?

Whilst there are many similarities between crimes and delicts, there are nevertheless also
fundamental differences between the two. Both crimes and delicts may be described as unlawful,
blameworthy acts or omissions. Broadly speaking, a delict is an an unlawful, blameworthy act that
results in damage to another and entitles the injured party to compensation from the wrongdoer.
Because a delict it is not classified as a crime either by the common law or legislation, the State will
not prosecute the wrongdoer. A delict is ordinarily injurious only to private or individual interests
and thus forms part of private law, particularly the subdivision of the law of obligations. If a person
claims damages on the ground of delict, the trial is governed by the rules of civil procedure.

A crime, on the other hand, is unlawful, blameworthy conduct punishable by the State. The
distinguishing features of a crime can be described as follows: it is conduct which is legally
forbidden, which may, in principle, be prosecuted only by the State, and which always results in the
imposition of punishment. A crime is almost invariably injurious to the public interest, by which is
meant, the interests of the State or the community. If a person is charged in a court with having
committed a crime, the trial is governed by the rules of criminal procedure.

Some delicts are also deemed to be crimes and in such cases the wrongdoer may be sued for
compensation in civil court by an injured person, and the State may also prosecute him for a crime
in criminal court. For example, if X assaults Y, Y can claim damages from X on the grounds of delict.
He can also lodge a complaint with the police against X on the grounds of assault, which may lead
to X’s conviction and punishment for the crime of assault. This, however, does not mean that all
delicts also constitute crimes.

The most important points of difference between a crime and a delict can be summarised as
follows:

Crimes Delicts
Infringes public interests (public wrong) Infringes only private interests
Form part of public law Form part of private law
State institutes prosecution Private party institutes action
Result in the imposition of punishment by the Result in the guilty party being ordered to pay
State damages to the injured party
Decision to prosecute or not, is made by the
Decision to institute a claim for damages or not
NPA (National Prosecuting Authority), regardless
is made by the injured party.
of the desires of the victim.
Trial governed by rules of criminal procedure Trial governed by rules of civil procedure

34
Standard of proof is heavier, viz. beyond a Standard of proof is lighter, viz. a balance of
reasonable doubt probabilities

2.2. CRIMINAL LAW – AN INTRODUCTION

Law is traditionally subdivided into two main categories, namely public law and private law. In
principle, public law deals with the relationship between the State as an authoritative power and
the subjects of the State. Private law, on the other hand, may be said to regulate relationships
between individuals as subjects of the legal order. The State as an authoritative power is always a
party in public law. Just as private law may be subdivided into, for example, the law of obligations,
the law of succession and the law of things, public law may be subdivided into, for example,
constitutional law, administrative law and criminal law.

As mentioned, a crime is an unlawful act punishable by a State or other authority through the rule of
law. This implies that laws are necessary to regulate what society considers to be criminal
behaviour. Criminal law fulfils this important function.

Criminal law is a subdivision of substantive law/material public law and is found in common law
and statutory rules. It is primarily concerned with the definitions and particular requirements for
specific ‘crimes’ (offences), regulating the principles relevant to determining criminal liability (guilt
or innocence), and prescribing punishment of such conduct.

Criminal law is concerned with actions which are dangerous or harmful to society as a whole, in
which prosecution is pursued not by an individual but rather by the State. Therefore, as part of
public law, criminal law regulates the vertical relationship between the State as an authoritative
power and the subjects of the State. This vertical relationship implies that:
 The State acts with state authority in the interest of the community, to prosecute the
accused in order to ensure stability and peace in society.
 The State/prosecution is the instigator (‘accuser’) and therefore bears the onus to prove its
allegation, namely the guilt of the accused.
 The accused remains innocent until proven guilty beyond a reasonable doubt – sec 35(1)(h)
of the Constitution – it is not for the alleged offender to prove his/her innocence.

Differences between criminal cases and civil cases

In the table below, we consider some of the most important differences between civil cases (i.e.
disputes between legal subjects in the context of private law) and criminal cases (i.e. disputes
between the State and a natural person/s):

Civil case Criminal case

Divorce or motor vehicle
Example of this type of case: Theft or rape
accident

Example of the name of the

Zwane v Potts State v Makwanyane
case/reference:

35
 Legal subject v Legal subject
• Plaintiff v Defendant (Action
proceedings) State v Accused/s
Parties involved? • Applicant v Respondent Note: the victim is not a party to
(Application proceedings) the case.
Legal subject = Natural & juristic
persons

Public - Regulated by public

Private - Regulated by private law because a crime threatens
law because it concerns the the interest of society. State
Interest being affected?
relationship between legal acts with state authority to
subjects. prosecute offender and protect
the community.

Vertical: State acts with state

Horizontal: Legal subjects on
Relationship between parties: authority to prosecute
equal footing
offenders, unequal relationship

Onus – on which party is the He who alleges must prove State - State initiates
burden of proof? Parties initiate proceedings proceedings

Lighter burden: On a balance Heavier burden: Beyond a

Standard of proof
of probabilities reasonable doubt

What happened to give rise to Damage incurred or rights

Unlawful conduct
the matter? infringed upon

Aim/purpose of this type of

Aim of the case is to get
case – why is the matter in Punish offender
clarification or a remedy.
court?

Outcome of case – what order Action or Application is allowed

Guilty or innocent
can the court make? or dismissed

Regulation of procedure Rules of civil procedure Rules of criminal procedure

2.3. THE SOURCES OF CRIMINAL LAW

The three main sources of our criminal law are legislation, common law, and case law. In addition,
the South African criminal justice system has been influenced by the English and German law, as
well as the Constitution of South Africa, 1996.

The Common Law

The primary source of criminal law is common law. Our criminal law is un-codified, which means
that no comprehensive code or list of crimes or punishment exists. Crimes such as murder, theft,
treason and incest are not defined in any statute or legislation but are part of the Roman-Dutch
legal tradition. The content of common law crimes and punishment is found in case law. The most
important rules and principles of common law have been adopted and expounded in our case
law.

Legislation

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Legislation is another source of the criminal law. Because times change and modern society, by
way of legislation, dictates which type of unacceptable conduct is regarded as a “new”
punishable offence. These types of crimes are also known as statutory crimes.
Examples of statutory crimes - While the common law is silent about the use of and dealing in drugs
and does not make it an offence, our modern society for example views dealing in drugs as
unacceptable. Legislation has therefore been promulgated to prohibit this type of conduct and
describe certain punishment. The statute dealing with this crime is called the Drugs and Drug
Trafficking Act 140 of 1992. Another example of a statutory offence is the reckless or negligent
driving of a motor vehicle, which is addressed in the National Road Traffic Act 93 of 1996.

Case Law
The courts play a pivotal role in describing, interpreting, and developing criminal law in South
Africa. It should be remembered that the principle of stare decisis (judicial precedents) apply to the
criminal courts in South Africa. Accordingly, lower courts are bound by the decision of higher
courts. The content of common law crimes and punishment is found in case law. Every day the
courts apply, interpret, and give content to common law.

The Constitution
Importantly, the principles applicable to the criminal justice system, including criminal law, do not,
may not, and cannot operate in isolation from the Constitution. The Constitution is the supreme law
of our country and the principles of criminal law (whether found in legislation, common law, or case
law), are directly subordinate to its provisions. In other words, the most authoritative (but not the
primary) source of criminal law is the Constitution.

The Constitution provides for foundational norms and minimum safeguards, which are applicable to
criminal justice. There are several Constitutional provisions that are either directly or indirectly
applicable in criminal matters.

Chapter 2 of the Constitution contains a Bill of Rights, which affords individuals certain fundamental
human rights, and limits the exercise of state powers from infringing such fundamental rights.

Below is a list of the most important constitutional provisions that may directly or indirectly impact
on the law of criminal justice:

S7 – democratic values of dignity, freedom and equality, and state is primary addressee of rights enforcement

S8 – Application of rights - Bill of Rights applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state. It binds a natural or a juristic person (to the extent applicable).

S9 – Equality - No one is above the law and law enforcement agencies cannot act against some persons and
arbitrarily ignore others simply because they occupy an important social, business or government position.

S10 – inherent dignity and the right to have their dignity respected and protected (especially relevant to
treatment and punishment, but also dignity of victim)

S11 – right to life (relates to instances where police official may use deadly force to apprehend a suspect, also
the death penalty is unconstitutional)

S12(1) – freedom and security of person – incl. right not be detained without trial, free from violence and cruel,
inhumane, and degrading treatment or punishment (e.g., during arrest, interrogation, or in detention).
S 12(1)(c) – victims have a right to be free from all forms of violence from either public or private sources.
S12(2) - the right to bodily and psychological integrity of the person – relevant to detained persons as well as
the ascertainment of bodily features as evidence.

37
S14 – Privacy – often infringed/limited during investigation process (must be reasonable and justifiable)

S21 – freedom of movement - may be justifiably limited during arrest and detention if in the interests of justice

S28 – child’s (below 18-years) best interests are of paramount importance in every matter concerning the
child, which includes criminal matters related to child perpetrators.

S32 – Access to information – accused has the right of access to info in police docket, etc.

S34 - principle of access to justice - criminal matters must be resolved by the application of law in a fair public
hearing, before an independent and impartial court or tribunal.

S35 – criminal procedural rights of arrested, detained and accused person. Includes pre-trial constitutional
rights available to an arrested or detained suspect during the pre-trial stage (especially relevant during the
investigation phase); and fair trial constitutional rights available to arrested, detained, or accused persons in
relation to pre-trial, trial, and after-trial court processes.
Rights listed in section 35 will be collectively referred to as due process or procedural fairness rights.

S36 – limitation of rights - the constitutional rights (including procedural rights in sec 35) of arrested, detained
and accused persons are not unrestricted or absolute, and may be reasonably and justifiably limited in the
interests of justice. This often occurs during the investigation stage, detention, and sentencing.
S37 – derogation of rights during a state of emergency. Some of the sec 35 rights are non-derogable rights:
- The right to silence and privilege against self-incrimination;
- The right to challenge the lawfulness of detention;
- All of the fair trial rights of the accused (sec 35(3)(a)-(o), except for the right to expeditious
proceedings);
- Proceedings in a language that the person understands (sec 35(4));
- 35(5) exclusion of evidence if the admission of that evidence would render the trial unfair.
The extent of derogation of the other rights in s35, is specifically qualified in sec 37(6)-(8).

S38 – enforcement of rights and remedies – affected persons have the right to approach a competent court,
alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate
relief. This is relevant to both victims, and also the perpetrator insofar as it relates to unreasonable exercise of
state power, such as wrongful arrest / prosecution.

S39 - interpretation of Bill of Rights - when interpreting any legislation, and when developing the common law
or customary law in relation to substantive or procedural criminal law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights.

Chapter 3 – co-operative government and intergovernmental relations

Chapter 4 – legislative authority (also relating to legislation in re substantive and procedural criminal law)

Chapter 5 – executive authority (also relates to law enforcement agencies)

S84 – Presidential powers - responsible to pardon or reprieve offenders

Chapter 8 – judicial authority – administration of justice by court (this includes criminal courts)
S165. (1) The judicial authority of the Republic is vested in the courts. (2) The courts are independent and
subject only to the Constitution and the law, which they must apply impartially and without fear, favour, or
prejudice.
S166 – Hierarchy of courts (relevant to stare decisis in criminal matters)
S171 – rules and procedures of court regulated by national legislation
S172 – powers of courts in constitutional matters
S173 – inherent powers of superior courts
S179 – National Prosecuting authority - NPA has the power to institute criminal proceedings on behalf of the
state, and to carry out any necessary functions incidental to instituting criminal proceedings.

38
 Chapter 9 - State institutions supporting constitutional democracy (of relevance to criminal justice and related
constitutional matters includes: the Public Protector, and The South African Human Rights Commission). These
institutions are independent, and subject only to the Constitution and the law, and they must be impartial and
must exercise their powers and perform their functions without fear, favour or prejudice

S205 – Police services - National legislation must establish the powers and functions of the police service. The
objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect
and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

The most important effects that the Constitution has on criminal procedure may be summarised as
follows:

 A criminal justice system that is based on dignity, freedom and equality before the law.

 Establishment and role of State authority (through cooperative intergovernmental law

enforcement agencies) in the proscription, combating, prevention, investigation, prosecution
of, and punishment for, criminal conduct. Most notably, such agencies include the investigative
powers of the police services, the prosecutorial authority of the NPA, the adjudication and
sentencing authority of criminal courts, and the enforcement of punishment authority of
correctional services.

 Balance between the individual perpetrator’s interest in due process and society’s interest in
effective crime enforcement through the exercise of State power. The supremacy of the
Constitution (sec 2) read in conjunction with sec 172, provides for the testing right of superior
courts. This implies that any substantive or procedural criminal law or any conduct by law
enforcement agencies in relation to a criminal justice process, must adhere to the
Constitutional values and rule of law; law or conduct inconsistent with it is unconstitutional. It
therefore limits the exercise of state powers.

 The Bill of Rights enshrines certain basic or fundamental human rights to which everyone is
entitled. Crime may impact on various of the human rights to which victims are entitled, such as
right to property infringed by theft, right to bodily integrity infringed by assault or rape, right to
life infringed by murder, right to privacy infringed by home invasions, etc. The perpetrator will
also be entitled to these same rights, which may be limited during the course of criminal
processes.

 The Bill of Rights specifically guarantees certain criminal procedural rights available only to
arrested, detained and accused persons. This includes pre-trial constitutional rights during the
pre-trial stage (especially relevant during the investigation phase); and fair trial constitutional
rights in relation to pre-trial, trial, and after-trial court processes. These rights listed in section 35
will be collectively referred to as due process or procedural fairness rights. It safeguards
procedurally fair mechanisms for the enforcement and punishment of criminal conduct, and a
reasonable balance between crime of control interests and due process interests.

 In the event of a person being accused of a crime, the person remains innocent until proven
guilty, which means that the accuser (State) must prove the person’s guilt and must do so
before a fair, open and impartial court – access to justice principle.
 The enforcement of human rights and due process rights, as well as the availability of remedies,
for unlawful governmental (or non-governmental) interference or infringement of such rights
during criminal justice processes.
 The Constitution provides for the limitation of all constitutional rights (including the human rights
and due process rights of arrested, detained and accused persons). During criminal law
enforcement, these rights may be reasonably and justifiably limited in the interests of justice, in

39
 line with the Constitutional values. This often occurs during the investigation stage, detention,
and sentencing.

2.4. ROOT CAUSES OF CRIME IN SOUTH AFRICA

In February 2007, the Centre for the Study of Violence and Reconciliation was contracted by the
South African government to carry out a study on the nature of crime in South Africa. The findings
of the study pointed out different factors which contributed to high levels of violence. Violent and
non-violent crimes in South Africa have been ascribed to:
 The normalisation of violence. Violence is seen by many as a necessary and justified way of
resolving conflict, and some men believe that coercive sexual behaviour towards women is
legitimate.
 A subculture of violence and criminality, ranging from individual criminals who rape or rob, to
informal groups or more formalised gangs. Those involved in the subculture are engaged in
criminal careers and commonly use firearms, with the exception of Cape Town; where knife
violence is more prevalent. Credibility within this subculture is related to the readiness to resort
to extreme violence.
 The vulnerability of young people due to inadequate child-rearing, followed by poor
guardianship and youth socialisation. Due to poverty and deprivation, unstable living
arrangements and inconsistent parenting, some South African children are exposed to risk
factors which increase their chances of becoming involved in criminality and violence.
 The high levels of inequality, poverty, unemployment, social exclusion and marginalisation.
 Traditional African culture where cattle theft from rival tribes had an important social and
cultural function within chiefdoms; also seen as a rite of passage for young warriors.
 The consumption and abuse of alcohol is seen as a direct cause or contributing factor in
many murder, attempted murder, assault, gender-based assault and rape cases. Many of
these violent crimes in fact occur in or directly outside bars, taverns, shebeens or nightclubs.
In addition many South Africans, including on-duty policemen, are arrested for drinking and
driving, a crime which is linked to 27% of fatal road accidents.

2.5. LAW ENFORCEMENT ISSUES

South Africa country relies on a criminal justice system that is mired in many issues, including
inefficiency, poor training, politicisation, and internal polarisation. Arguably the biggest problem in
our criminal justice system, is corruption within all agencies of the state. Alarmingly, the number of
verdicts and the number of persons sentenced to prison show a general decline. Some of the other
law enforcement issues include, inter alia:

• Some police stations are distant from the communities they serve, while others become
overburdened in precincts that experience rapid urbanization. SAPS officers are often
deployed in life-threatening situations without proper equipment or training. In many instances
police officers work long hours out of under-resourced stations which may lack basic office
equipment, while the only landline telephone may be busy, or electricity may be cut for non-
payment. At times, police vehicles awaiting repairs at selected police stations account for
almost 27% of the fleet while awaiting repairs, which negatively affects reaction times and

40
 visible policing. Three to four detectives rely on a single vehicle, meaning that detectives must
share with a colleague to visit a crime scene.

• Bribery and corruption are rampant in the SAPS. Many SAPS officers accept bribes from the
criminal underworld, especially when their superiors and seniors are visibly on the take. Officers
of various ranks have been implicated in forms of corruption which involves
fraud, blackmail, assisting the escape of prisoners, or the irregular awarding of contracts. As of
2020, 286 corruption cases involving 564 police officers were pending. Contraventions of the
Disaster Management Act, and over R1 billion of allegedly irregular transfers of COVID-19 relief
funds have been tied to SAPS officials, while others were dismissed (but not convicted) for
alleged corrupt branding and outsourcing practices involving the police vehicle fleet.

• What is seen as a culture of non-liability, has led to very few police personnel being expelled
from the service, however. Instead, disciplinary hearings have declined greatly in frequency,
mass recruitment of poorly skilled applicants occurs, skilled recruits are not sensibly deployed,
and from 2018 to 2019, 22% of officers received promotions without regard to their
performance.

• The Criminal Justice Budget was subject to plunder by corrupt police officials at least during
the period from 1997 to 2017. The massive inside job involved over 20 persons in the SAPS's top
brass, and probes into these activities necessitated the discontinuation of some essential
policing services. Irregular police expenditure amounted to R33 million in 2017/18, a massive
R996 million in 2018/19 and R452 million in 2019/20, excluding fruitless and wasteful
expenditure and expenses incurred due to civil actions against it, which in 2019/20 amounted
to R522 million.

• A 2019 survey by Global Corruption Barometer Africa suggested that the SAPS is seen as the
most corrupt institution in the country. In 2020, the SAPS was described as "rotten to the core".
The Institute for Security Studies, pointed out that the SAPS moves from crisis to crisis, had by
2020 not implemented the proposals for effective policing outlined in the National
Development Plan of 2012, and had inept and poorly skilled personnel in top posts. The SAPS
announced a streamlining of its organizational and top structure in 2020, following major
restructuring in 2016.

• Weapons and weaponry are regularly stolen from the security forces or security firms, and it is
feared that these may be used in other crimes. The July 2019 UNODC report highlighted a surge
in the availability of illegal firearms, including hundreds which are diverted from SAPS custody
by corrupt officials, particularly to gangs. The same is true of the South African National
Defence Force. As of 2021 the firearms register is dysfunctional, and the SAPS does not know to
which officers arms were issued

• In terms of the SAPS's capacity, it lacks proper intelligence gathering and poor internal, inter-
departmental collaboration, which hampers their execution of operations.

• Budget cuts in training for detectives and prosecutors fundamentally constrain law
enforcement agencies’ operating ability.

• When suspects are apprehended, the police lack experience to prepare a thorough prima
facie case, leaving the National Prosecuting Authority (NPA) powerless to institute legal
proceedings. This results in very low conviction rates of serious crimes. Only 2% of vehicle
hijackings, 2% of robberies of either residential or commercial premises, 9% of sexual offences
(5% of adult rape and 9% of child rape cases) result in convictions. As of 2020 less than 20% of
murder investigations would result in a trial date being set, down from 31% in
2010/11. Cooperation between the SAPS and private prosecution initiatives have been
effective in stalled cases.

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 • Some economic crimes go undetected, while the imposed penalties amount to little
deterrence.

• Toxicological reports of the SAPS are lagging by as much as a decade, while the number of
unprocessed DNA samples at the National Forensic Science Laboratories (NFSL) reached a
backlog of 117,000 in 2020 due to mismanagement of the supply chain process.

Clearly, there are many inefficiencies and deficiencies in our current criminal justice system's
approaches to crime. Retired Justice of the Constitutional Court of South Africa, Edwin Cameron,
refers to “the crisis of criminal justice in South Africa” and opines that “[t]he major response to the
crime wave in our country should be to recognise that the sole inhibiting institutional response to
criminal conduct is the certainty of detection, the certainty of follow up, the certainty of
arraignment, the certainty of prosecution — and the certainty of punishment.” - 2020 SALJ 57.

What is the effect of crime on South Africans, what has been the effect of crime in South Africa on
you? We live in gates communities or burglar-proof dwellings, we rarely visit public parks, we avoid
walking alone, especially at night. Those that can afford it, pay for security upgrades at their homes
and contract private security contractors. Many emigrants from South Africa state that crime was a
big factor in their decision to leave. We have become prisoners to crime in our own country.

2.6. PERSONS INVOLVED IN A CRIME

Consider the following facts: V, W, X and Y agree to rob a bank together. During the robbery each
member of the group has a different role. V finds the money, W holds up the cashiers and security
guard with a gun, X places the money in a bag, and Y keeps guard outside in the ‘get-away
vehicle’. Apart from these persons involved during the robbery itself, another person, T, assisted the
group by obtaining security plans of the building and the gun. During the robbery, W shoots and kills
the security guard. U, W’s girlfriend, only hears about the robbery and murder afterwards. She
decides to help her boyfriend by disposing of the security guard’s body. In this section we briefly
consider the different roles that each of the ‘persons involved a crime’ may have.

The term ‘‘persons involved in a crime’’ is not a legal term, it is a convenient phrase that may be
used to refer to all the persons, or groups of persons, involved in the commission of the crime
(whether they furthered the commission of the crime or not) and who, consequently, can be
charged in connection with the commission of the crime. ‘Persons involved in a crime’ may be
subdivided into various categories based on the nature of their involvement with, or implication in,
the commission of a crime. The different types of actors who may be involved in committing a
crime:

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 PERSONS INVOLVED
IN A CRIME

PARTICIPANTS NON-PARTICIPANTS

PERPETRATORS ACCOMPLICES ACCESSORIES

AFTER THE
FACT

DIRECT
PERPETRATOR

CO-
PERPETRATOR

VICARIOUS OR
INDIRECT
PERPETRATOR

CONCURRENT
PERPETRATOR

2.6.1. Distinguishing Participants and Non-participants

A ‘participant’ can be described as “anyone who does something, in whatever manner, whereby
he furthers the commission of the crime”. Participant, including perpetrators and accomplices, both
participate in the commission of the crime because they either commit it themselves or promote its
commission. In the scenario above, T, V, W, X and Y would be considered participants.

A ‘non-participant’ refers to persons acting as accessories after the fact. This is “someone who,
although he can be described as being involved in the crime, does not further the commission of
the crime at all. In the example above, U was not a participant in the robbery or murder as she did
not promote the commission thereof, however she will be considered an accessory after the fact.

2.6.2. Categories of participants

Perpetrators
Definition of a perpetrator: “A person is a perpetrator if:
(1) his conduct, the circumstances in which it takes place (including, where relevant, a
particular description with which he as a person must, according to the definition of the offence,
comply), and the culpability with which it is carried out are such that he satisfies all the
requirements for liability contained in the definition of the offence
OR
(2) if, although his own conduct does not comply with that required in the definition of the crime,
he acted together with one or more persons and the conduct required for a conviction is
imputed to him by virtue of the principles relating to the doctrine of common purpose”

Categories of perpetrators:

43
► Direct perpetrator: This is the person who commits the crime himself in a direct manner. For
example, A shoots B with a revolver.
► Co-perpetrator: A co-perpetrator is a person who consciously co-operates with another person
to commit a crime, for example where X and Z both set A’s car on fire, whilst he is sitting in the
car, as they want to kill him.
► Vicarious or indirect perpetrator: A vicarious perpetrator is a person who acts through another
person by using the latter as an instrument to commit a crime, for example, by paying him for
killing his worst enemy.
► Concurrent perpetrator: This is a person who unconsciously works with another in the commission
of a crime. An example will be where X and Y both hate Z and wish to murder him and then,
independently and ignorantly, put poison in Z’s drink, which causes him to die.

The doctrine of common purpose

The doctrine of “Common Purpose” provides that “if two or more people, having a common
purpose to commit a crime, act together in order to achieve that purpose, the acts of each of them
in the execution of such a purpose are imputed to the others.”

When a number of persons participate in the commission of a crime, it is often impossible for a
court to determine the exact part each has played. Where X, Y and Z decide to kill A and assault
him with their “knopkieries”, fracturing his skull and thus causing his death, it may be difficult or even
impossible to determine who of X, Y or Z inflicted the fatal blow that caused A’s death. In instances
such as these, our courts apply the doctrine of “common purpose” to determine the criminal
liability of each offender.

“The doctrine of common purpose serves vital purposes in our criminal justice system. The principal
object of the doctrine is to criminalise collective criminal conduct and thus to satisfy the need to
control crime committed in the course of joint enterprises. In consequence crimes such as murder it
is often difficult to prove that the act of each person, or of a particular person in the group,
contributed causally to the criminal result. Insisting on a causal relationship would make prosecution
of collective criminal enterprises ineffectual.” - Thebus 2003 (2) SACR 319 (CC)

According to this doctrine, a person may be guilty of an offence as a perpetrator even though he
did not commit the offence himself. If he and one or more others agreed to commit the offence
and each of them performed an act with the object of completing the offence, even if such
person did not complete it himself, he is guilty as if he committed the act himself.

Proof of existence of common purpose: The existence of a common purpose between two or more
participants is proved in the following ways:

i. On the basis of an express or implied prior agreement to commit an offence. Since people
mostly conspire in secret, it is very difficult for the state to prove a common purpose based on
a prior agreement.
ii. Where no prior agreement can be proved, the liability arises from an active association and
participation in a common criminal design. Factors that may provide evidence of common
purpose in such instances includes the person’s awareness and presence at the scene of the
crime, the commission of an associative act, and his intention to further or promote the
commission of the crime.

The State must prove that every perpetrator had the intention to commit the act. If this is proved,
the conduct of the one perpetrator, for example the act of killing someone which caused the
victim’s death, is imputed to the other persons involved in the performance of the act, and if all the
other requirements for murder is met, all could be found guilty of murder.
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An example of “common purpose”: The leading case on the doctrine of common purpose is
Safatsa 1988 (1) SA 868 (A). In this case, the facts were the following: A crowd of about 100 people
attacked Y, who was in his house, by pelting the house with stones, hurling petrol bombs through
the windows, catching him as he was fleeing from his burning house, stoning him, pouring petrol
over him and setting him alight. The six appellants formed part of the crowd. The Court found that
their conduct consisted, inter alia, of grabbing hold of Y, wrestling with him, throwing stones at him,
exhorting the crowd to kill him, forming part of the crowd which attacked him, making petrol
bombs, disarming him and setting his house alight. In a unanimous judgment delivered by Botha JA,
the Appellate Division confirmed the six appellants’ convictions of murder by applying the doctrine
of common purpose, since it was clear that they all had the common purpose to kill Y. It was
argued on behalf of the accused that they could be convicted of murder only if a causal
connection had been proved between each individual accused’s conduct and Y’s death, but the
Court held that where, as in this case, a common purpose to kill had been proved, each accused
could be convicted of murder without proof of a causal connection between each one’s
individual conduct and Y’s death.

Just as association with the common purpose leads to liability, dissociation or withdrawal from the
common purpose may, in certain circumstances, lead to negative liability. Where it is clear that a
person dissociates himself from the crime before it is committed, he cannot be found guilty as a
participant to the crime. This is called the defence of “voluntary withdrawal”.

Activity - In the scenario below:

► identify which type of perpetrator each person involved in the crime is;
► explain if there is common purpose between the perpetrators.

A, B, C and D are members of a drug dealing syndicate. They are angry with X because he
is also a drug dealer and is taking away some of their clients. They decide to go and
intimidate him with the purpose to try and scare him. A, B, C and D go to the home of X.
They find him in the lounge. There are some shouting and A instructs B to go and stand
watch at the front door. C and D shoot at X at the same time and he dies. X has five bullet
wounds in his body. The police later establish that E was also on the scene and also shot at
X. E says he shot at X because X owed him money and would not pay.

The accomplice
Definition: It is not only where a person complies with the requirements for liability as a perpetrator
that he is punishable. A person is also punishable even when these requirements are not met, if he
unlawfully and intentionally furthers / promotes a crime committed by somebody else by for
example, giving the latter advice or assisting him. He is then an accomplice. In other words, an
accomplice’s actions do not comply with the definition of the particular crime and, considering his
conduct, state of mind and characteristics, he does not comply in all respects with the definition.

Some crimes can only be committed by people complying with a certain description. For example,
high treason can only be committed by a person owing allegiance to the Republic of South Africa.
If X commits an act whereby he furthers the commission of a high treason, but does not owe an
allegiance to South Africa, he is an accomplice. Because X does not comply with the particular
description, he cannot be brought within the definition of the crime, but he nevertheless
committed an act whereby he furthers the commission of the crime by somebody else.

The liability of an accomplice:

45
 A person would be deemed to be an accomplice if he unlawfully and intentionally engages in
conduct and this conduct furthers the commission of an offence. The offence is committed by
somebody else. A person would be deemed an accomplice even if he does not satisfy all the
requirements for liability contained in the definition for the offence.
 The word “accomplice” furthers / promotes or include any conduct whereby a person
facilitates, assists or encourages the commission of an offence.

2.6.3. Non-participants - Accessory after the fact

An accessory after the fact is someone who unlawfully, intentionally and with the aim of defeating
or obstructing the course of justice, helps another who has already committed a crime. The
accessory after the fact is upon conviction liable to the same punishment as that to which the
perpetrator of the crime would be liable.

For example: A murders B and runs to C to inform him of the incident. C assists A by taking the body
of B to an open field far away from the place where the incident happened. A and C swear not to
let the police know about the incident.

Activity - In the scenario below:

► identify the accessory after the fact;
► identify the accomplice.

A, B, C and D are members of a drug dealing syndicate. They are angry with X because
he is also a drug dealer and is taking away some of their clients. They decide to go and
intimidate him with the purpose to try and scare him. B and D have their own agenda
and plan to kill X. A, B, C and D go to the home of X. They find him in the lounge. There
are some shouting and A instructs B to go and stand watch at the front door. B and D
shoot at X at the same time and he dies. B instructs A to come and collect the bullet shells
and destroy them which A does. C starts wiping the crime scene to ensure that there is no
traces of their visit.

2.7. THE INCOMPLETE CRIME

Normally the law requires the commission of an unlawful act or omission before it is said that a
person has committed a crime. However, in this section of the work we look at circumstances in
terms of which a person may be found guilty of an offence despite the fact that, that person had
never completed the intended crime. The following incomplete crimes are referred to as
“anticipatory crimes” (anticipatory in the sense that the conduct was expected, but the crime was
not completed):

• D attempts (tries) to commit murder, but fails to kill the victim;

• G influences H in such a way that H is incited (instigated) to commit a crime;

• C conspires (mutually agrees) with E & F to commit a crime together.

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2.7.1. Attempt
If the evidence in criminal proceedings does not prove the commission of the offence charged but
proves an attempt to commit that offence or an attempt to commit any other offence of which an
accused may be convicted on the offence the accused were charged with, the accused may be
found guilty of an attempt to commit that offence or, as the case may be, such other offence.

Definition:
i. “A person is guilty of attempting to commit a crime if, intending to commit that crime, he
unlawfully engages in conduct that is not merely preparatory but has reached at least the
commencement of the execution of the intended crime.
ii. A person is guilty of attempting to commit a crime, even though:
a. the commission of the crime is impossible, if it would have been possible in the factual
circumstances which he believes exist or will exist at the relevant time;
b. she voluntarily withdraws from its commission after her conduct has reached the
commencement of the intended crime.”

A person may be guilty of attempting to commit a common law or statutory crime. The Riotous
Assembly’s Act 17 of 1956 expressly declares punishable attempts to commit statutory crimes, as
crimes. The following requirements must be met before a punishable attempt to commit a crime,
can be proved:
► the accused must have had the intention to commit a crime
► the accused must have committed an act to implement his intention
► the crime must not have been completed.

A thought about a crime is not the same as intent in the legal sense. Nobody may be punished for
thoughts alone. A mere intention to commit a crime is not punishable. It is only once a person’s
resolve to commit a crime has manifested itself in some outward conduct that his or her conduct
may be punishable. An accused may only be found guilty of attempt to commit a crime if it has
been proved that he or she had the intent to commit that particular crime. Not every outward
conduct qualifies as a punishable attempt. A man nursing the intention to commit arson will
certainly not be guilty of that crime the moment he buys a box of matches. In a legal context,
then, it is more appropriate to speak of a punishable attempt.

The following are forms of punishable attempt:

 Completed attempt: A person does everything he or she can to complete the crime but fails in
doing so. X wants to kill Y and shoots at him but misses.

 Interrupted attempt: Whilst performing an action directed at the completion of the offence, a
person is interrupted by some external factor. Generally, our courts approach these cases by
asking themselves whether, practically speaking, it may in all fairness be said that had the
interruption not occurred, the offence would have been completed. If so, the act is regarded
as an act of consummation; if not, it is an act of preparation.

o Example of an act of preparation: (for the purposes of interrupted attempt): X wants to

poison Y with a poisonous concoction consisting of substances B, C and D. He is caught the
moment that he mixes B and C but has not yet added D.

47
 o Example of an act of consummation: (for the purposes of interrupted attempt): Prisoner X
wants to escape. Having broken through one bar of the door to his cell, he is caught while
pushing the upper part of his body through the gap.

 Voluntary withdrawal: A person performs an act with the object of committing an offence, but
reconsiders the matter before the completion of the crime and decides not to proceed.
Whether such a person will be held responsible will once again depend on whether he or she
proceeds with the conduct beyond a mere act of preparation. H, for instance, puts poison in
Y’s food, but notices that the poison discolours the food. Consequently, she throws the food
away. H is, nevertheless, convicted of attempt on account of her conduct amounting to an act
of consumation.

 Attempt to commit the impossible: The perpetrator performs an act with the object of
committing a crime under circumstances rendering it impossible to complete the crime, either
because the objective is impossible to attain or because the means employed are ineffective.

The following distinction is made in our law:

► Instances such as where a person thinks that what he intends doing will amount to a crime,
but it eventually appears to be no crime at all. In such an instance the person has made a
mistake of law and is not guilty of any crime.
► Instances such as where a person’s conduct would in fact amount to a crime, but
circumstances make it impossible to commit the crime in question. In such an instance, the
person has made a mistake of fact and may be guilty of a crime provided that he or she
performs an act of consummation and not merely an act of preparation.

2.7.2. Incitement
Incitement is defined as follows: Section 18(2)(b) of the Riotous Assemblies Act 17 of 1956
determines that any person who incites, instigates, orders or acquires another person to commit a
common law or statutory crime, will be guilty of a crime and be punishable with the same
punishment as the person who was found guilty of the crime.

Requirements for the existence of incitement as an incomplete crime:

 The accused must have communicated with another person in order to persuade the latter
to commit a crime. Where the communication did not reach the other person or where the
other person did not understand the communication, the enticer will only be guilty of
attempting incitement.

 It is not necessary for the other person to commit the crime.

 The incitement need not be successful.

 There has to be a measure of persuasion - the enticee must not have planned to commit a
crime.

 The enticer must consciously entice the other person.

2.7.3. Conspiracy
Section 18 (2) (a) of the Riotous Assemblies Act 17 of 1956 determines:

“Any person who conspires with any other person to aid or procure the commission of or to commit
any offence, whether at common law or against a statute or statutory regulation, shall be guilty of
48
an offence and liable on conviction to the punishment to which a person convicted of actually
committing that offence would be liable.”

Requirements for conspiracy:

 The conspirators must reach an agreement to conspire, and their intentions must be
communicated to one another. They must have the intention to conspire and the intention
to commit a crime together.

 The conspirators need not be in direct communication with one another.

 The conspirators must consciously agree to commit a crime.

2.7.4. Punishment for attempt, incitement, and conspiracy

In terms of the provisions of the Riotous Assemblies Act 17 of 1956, a person found guilty of any of
the inchoate crimes (attempt, incitement or conspiracy) is liable to the punishment to which a
person convicted of actually committing that offence would be liable.

For example, X, meaning to commit arson, pours petrol over the furniture in Y’s house, but is
apprehended by police officials before striking the match. In this scenario, X can be punished to
the same extent a court would usually punish a person that succeeded in committing arson.

However, Snyman argues that the Act above should be understood as providing for the maximum
sentence possible for such crimes and that lesser punishment (than what is provided from in terms
of the Act) is usually imposed than for a completed crime. The rationale is that such inchoate
crimes does not usually result in the same harmful consequences as the commission of the main or
completed crime would.

*******

2.8. SELF-EVALUATION QUESTIONS

 Define a crime.
 Discuss the different categories of perpetrators.
 Explain the doctrine of “Common Purpose”.
 Define what an accomplice is.
 What is the liability of the accomplice?
 What are the requirements to be an accomplice?
 Explain what an accessory after the fact is.
 Name the requirements to be an accessory after the fact.
 What is “attempt”?
 Name and discuss the different kinds of attempt.
 Advise a member of the community, or whilst assessing a matter, about instances in which guilt
is not a requirement for the crime to be committed.

2.9. ASSESSMENT CRITERIA

When you have worked through this unit and answered the self-evaluation questions, you should
be able to you:

1. list the differences between a crime and a delict;

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2. know the different types of perpetrators;
3. know what the doctrine of “Common Purpose” is;
4. know what an accomplice is;
5. know what an accessory after the fact is;
6. know what attempt is.
7. What are the requirements for the existence of incitement as an incomplete crime?
8. Define conspiracy.

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LEARNING UNIT 3: CRIMINAL LIABILITY AND THE LEGALITY PRINCIPLE
3.1. INTRODUCTION TO CRIMINAL LIABILITY

“Criminal liability” implies that when a perpetrator commits conduct which has been criminalised
by criminal law, such persons must be held individually criminally responsible (accountable) for
such prohibited acts. I.e., being held legally accountable for criminal behaviour.

It is, therefore, concerned with the responsibility of the alleged perpetrator, which requires that the
alleged perpetrator, by his conduct and subjective attributes, must comply with the requirement for
criminal liability. It should be noted that, at this point, because we have not discussed any of the
specific crimes and their definition, “criminal liability” refers to those principles generally applicable
to all crimes, irrespective of the definition of each.

Below, we will discuss the principles relevant to determining the circumstances under which a
perpetrator will be held accountability for his criminal conduct. Such a structure of the rules of
criminal liability is not an exact science, like mathematics, but is intended to help the person
encountering criminal law for the first time. There are other ways to approach the question of
criminal liability and structure the requirements for criminal liability.

In broad terms, we can say that criminal liability requires three broad considerations: (1) the
physical actions (or omissions) of the person, (2) those actions constitute a prohibited action or the
causing of a prohibited result, and (3) such actions by the person must have been done with a
certain blameworthy state of mind. This understanding implies that criminal law does not prohibit
general criminal conduct, a person must be charged for committing a specific acknowledged
crime. Therefore, conduct of a person by itself is not criminal unless such conduct complies with the
elements of a specific acknowledged crime. In addition thereto, the person must have had, at the
time of commission of the offence, certain mental attributes that are considered blameworthy.

In this course, we will divide the requirements for criminal liability into the five parts, which will be
separately discussed in more detail below. In terms of this division, a person commits a crime if:

1. He/she engages in conduct

2. which complies with the definitional elements of a crime,

3. criminalized by law (legality principle),

4. and which conduct is unlawful and

5. culpable – criminal capacity + fault (intention or negligence).

Stated differently, in order to be hold a specific perpetrator accountable for a specific crime,
he/she must be considered personally culpable (legally to blame) for the commission of conduct
which complies with the definitional elements of the specific crime in question under circumstances
considered as unlawful.

Requirements for criminal liability:

For purposes of this course, the requirements for criminal liability will be systematically analyzed
and discussed under the following headings:
I. Legality
II. Act or conduct
III. Compliance with the definitional elements (Causality – materially defined crimes)

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 IV. Unlawfulness (also referred to as wrongfulness)
V. Culpability (individual criminal responsibility)
a. Criminal Capacity; and
b. Fault (intention or negligence)
The prosecution must prove the simultaneous existence of all the elements at the time the
offence was committed, in order for an accused to be convicted by a court of law.

3.2. LEGALITY PRINCIPLE

The principle of legality requires that the type of conduct forming the basis of the charge
must have been recognised as a crime by the relevant legal order at the time of its
commission, in order to hold a person criminally liable.

A conviction is an objective and impartial official pronouncement that a person has been proved
legally guilty by the State (prosecution) in a properly conducted trial, in accordance with the
principle of legality, which requires compliance with the rules of criminal law, criminal procedure,
evidence, and the Constitution.
Legal guilt (guilt in the eyes of the law) refers to a situation where the accused is found
guilty based on the application of the relevant legal principles to the proven facts.
On the other hand, factual guilt exists where the accused may in fact have committed the
crime, but he/she may not be found guilty because it has not been possible to prove the
facts in court beyond a reasonable doubt.
In contrast, a pronouncement of moral guilt: (1) occurs when a prejudicial and subjective
public opinion is formed against the accused that he/she is guilty of a crime before the trial
has run its course, or (2) triggered by 'self-conscious' emotion as a result of the violation of
one's own personal moral standards and internalized (social) norms.

The rationale or basis of the principle of legality is the policy consideration of legal certainty, which
implies that the rules of the criminal law ought to be as clear and precise as possible so that people
may find out, with reasonable ease and in advance, how to behave in order to avoid committing
crimes.

Therefore, the very first question to be asked in determining a person’s criminal liability is whether
the type of conduct forming the basis of the charge is recognised in our law as a crime. Strictly
speaking, legality is not a requirement for criminal liability, because this is not a requirement that
the wrongdoer must satisfy. Rather, the law must have by this time criminalized the type of conduct
committed by the wrongdoer. It is only necessary for the accused’s actions to comply with the
other requirements above. This consideration is underlined by the fact that in more than ninety-nine
percent of criminal cases X is charged with a crime that is so well known (e.g. assault, theft,
culpable homicide) that the court will not waste its time investigating whether in our law there is
such a crime as the one with which X is being charged. Thus, in most cases the court / prosecution
/ defence will not even consider the requirement of legality.

The principle of legality is entrenched in s35(3)(l) & (o) of the Constitution. In this regard, every
accused person has a right not to be prosecuted for an act or omission that was not an offence
under either national or international law at the time it was committed or omitted - s35(3)(l) of the

52
Constitution. In addition, every accused person has a right to the benefit of the least severe of the
prescribed punishments if the prescribed punishment for the offence has been changed between
the time that the offence was committed and the time of sentencing - s35(3)(n).
The common-law understanding of the principle of legality is known by the Latin maxim “nullum
crimen, nulla poena sine lege” (‘no crime, no penalty without law’). In terms of the principle of
legality, an accused may not be found guilty of a crime and sentenced unless the type of conduct
with which he is charged: has been recognised by the law as a crime; in clear terms; before the
conduct took place; without the court having to stretch the meaning of the words and concepts in
the definition to bring the particular conduct of the accused within the compass of the definition,
and after conviction the imposition of punishment also complies with the four principles set out
immediately above.
In this regard, it may be said that the principle of legality imposes the following strict requirements:
• the nullum crimen principle (individuals may only be held criminally responsible according
to law);
• the nulla poena principle (punishment should be carried out in accordance with the law
and must be proportional to the crime for which the perpetrator has been convicted);
• Lex praevia or the principle of non-retroactivity (Court may only find accused guilty of a
crime if the act was recognised as a crime at the time of commission);
• Lex certa or the principle of specificity (the law must be certain and not vague);
• Lex stricta which bans analogy (the law must be interpreted strictly without the court having
to stretch the meaning of the words and concepts in the definition), together with favor rei
principle (interpretation in favour of the person being investigated, accused, prosecuted or
convicted); and
• Lex scripta (the law must have existed in written form).

3.3. CONDUCT (ACT OR OMISSION)

Conduct refers to a voluntary human act (positive action) or omission (failure to act
when there is a legal duty to do something).

Conduct is the basic element in the construction of a system of criminal liability, without relevant
conduct, (i.e., conduct as described in the definitional elements of the crime) there can be no
crime. All the other elements or requirements for liability are consequent attributes or qualifications
of the conduct. In order to be hold an alleged perpetrator accountable for a specific crime,
he/she must be considered responsible for the commission of relevant conduct. At the outset, three
important aspects/subsects of conduct should be noted:

1. “Conduct” refers to those of humans only.

2. Conduct can lead to liability only if it was committed voluntarily, i.e., X is capable of
subjecting her bodily movements to her will or intellect.
3. Conduct can consist of either an active positive act (commission - doing something) or a
neglect to act positively (omission - failure to act when there is a legal duty to do
something).

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3.3.1. Requirement of human conduct
The conduct must constitute a human act or omission. Animals do not have criminal liability.
However, a human being can be punished if she commits a crime through the instrumentality of an
animal, i.e., uses an animal to commit a crime. For example, if X incites his dog to bite Y.

3.3.2. Requirement of voluntariness

Only ‘voluntary’ conduct is punishable. Voluntary conduct implies that X must be capable of
subjecting his bodily movements to his will or intellect. In other words, X must be able to make a
rational decision about conduct and execute it, whether that is to act in a certain way, refraining
from acting in a certain way, or acting to prevent the prohibited act or result.

Voluntariness of the conduct should not be confused with the intention (will-direction) to commit
the conduct. Even an unintentional act may amount to “conduct” for purposes of criminal law, for
example instances of negligence.

Defences related to the requirement of voluntariness

If the person’s conduct cannot be controlled by the will of the person, it is involuntary. There are
some factors which may exclude the voluntariness of a person’s actions, such as: (1) Absolute
force, which excludes X‟s ability to subject his bodily movements to his will or intellect; (2) Natural
forces, and (3) Automatism – mechanical behaviour of an automaton.

3.3.3. Requirement of an ‘act’ or ‘omission’

 Mere thoughts or even decisions are not punishable. Thoughts that have not yet been
transformed into an act or conduct, is not punishable. Criminal liability requires that X (the
alleged perpetrator) must have at least started to convert such thoughts or decision into some
form of conduct, which goes beyond the mere idea or a decision to do something.
 Technically, the term “act” does not include an “omission”, in fact, an “act” (to do something)
is the opposite of “omission” (not to do something). The term “conduct” should be construed in
such a way as to include both the act and omission in the same concept for purposes of
criminal law.
 “Conduct” means “the type of act described in the definitional elements” of a particular crime,
which forms part of the requirement compliance with the definitional elements of the particular
crime. Clearly, “conduct” is central in both these requirements.
 Conduct does not necessarily imply a muscular contraction or bodily movement in all
circumstances. This is because criminal law not only punish positive acts for which a bodily
movement is required, but also omissions, in which case the person is held accountable for his
or her failure to perform some form of bodily movement. Another important point in this regard
is that the X may be held responsible for a crime committed through the bodily movement of
another person (or instrument, including an animal). In such cases, no bodily movement of X is
directly related to performing the prohibited act. For example, X hires a contract killer, Z, to kill
her husband (Y). Z’s bodily movement is directly related to Y’s death. Nevertheless, X’s bodily is
not directly related to Y’s death, but X must clearly be held responsible.

 As already alluded to, conduct can either be an active positive act (doing something /
commissio) or passive failure to act, and the last-mentioned neglect to act positively is also
referred to as an omission.

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3.3.4. Omission
An “omission” (failure to act) is punishable only if there is a legal duty upon somebody to perform a
certain type of active conduct. In other words, the legal convictions of the community require X to
act positively (“Do that!”) (Minister van Polisie v Ewels).

An omission only amounts to criminal conduct if there was a positive legal duty to act positively
and the accused failed to act accordingly. Thus, omissions provide for imperative norms that
command persons to engage in certain active conduct; they therefore prohibit persons from
omitting to act positively.

In S v Fernandez 1966 2 SA 259 (A), the accused kept a baboon and failed to repair its cage
properly, with the result that the animal escaped and bit a child, who later died. The accused
was convicted of culpable homicide for his negligence in failing his duty to contain the
dangerous animal.

Specific instances of such legal duties may be found in:

• Statute - e.g. failure to complete an annual income-tax form;

• Common law – e.g. failure to report an instance of treason to the police;
• Agreement - e.g. Russel-case;
• Responsibility for control of dangerous or potentially dangerous object – e.g. failure to
control or contain a dangerous animal – e.g. Fernandez-case;
• Protective relationship – e.g. a parent or guardian towards a child;
• Previous positive act – e.g. person started a fire in the veldt, he/she has a duty to
extinguish the fire afterwards;
• Official capacity – e.g. police officials; or
• Order of court – omits to appear in court or pay maintenance claim.

In S v Russel 1967 (3) SA 739 (N) the accused was convicted of culpable homicide on the
grounds of his omission to convey an important message which would have prevented the
death of a co-worker. Russel was assisted by “M to load pipes from a lorry onto a railway truck
with the aid of a crane affixed to the rear of the lorry. Above the crane was a highly charged
electric wire used for driving the electric locomotives. A shunter had warned Russel that he
would start operations at 14:00, that the electrical current in the wires would then be switched
on and that Russel and M would have to cease their loading at that point, since it would be too
dangerous then for them to proceed with their work. Russel had answered ‘very well’ but failed
to convey this vital information to M. the result was that when the current was switched on, M
and his assistants continued the loading operations. The top of the crane touched the wires, with
the result that the deceased, who was assisting M with his work, was electrocuted, and died.”
The court found that Russel had a legal duty to perform a positive act, i.e., to convey the
message, and in failing to do so had caused the death of another through an omission.

Defence related to omissions – defence of “impossibility”

Omissions, like acts, must be committed voluntarily. Therefore, criminal liability requires that even
though X was capable of subjecting his bodily movements to his will or intellect, he failed to act
positively (in circumstances that required a positive legal duty to act). Therefore, an omission is
only punishable if it is possible for X to perform the positive act (required by the legal duty), and he
fails to act under such circumstances. After all, the law cannot expect somebody to do the
impossible (lex non cogit ad impossibilia).

55
“Impossibility” is therefore, a defence against a charge that a person failed to perform a positive
act. For example, it is impossible for X to file his annual tax returns if he has been in a medical
comma for the last three years. The defence of impossibility will be discussed in more detail in
learning unit 4.

3.4. CONDUCT WHICH COMPLIES WITH DEFINITIONAL ELEMENTS

The wrongdoer’s conduct must comply with definitional elements relating to a specific
acknowledged crime.

“Definitional elements” refers to the concise description of the requirements set by law
and the circumstances in which it must take place.

The type of act must be the one described in the definitional elements. Criminal law does not
prohibit a mere act. X must be charge him with a ‘specific’ criminal offence, such as murder or
rape, and his actions must accord with the definitional elements of the crime charged.
Consequently, criminal liability requires that the wrongdoer’s conduct must comply with the
definitional elements of the specific crime. Stated differently, a person commits a crime if he
engages in conduct which accords to the definitional elements of the crime in question. If the act
does not comply with the definitional elements of the specific crime, it will exclude the requirement
of conduct, in that compliance with the definitional elements is a prerequisite for holding a person
criminally liable for that specific crime.

What does the definitional elements of a crime mean? The definitional elements contain not merely
a description of the type of conduct proscribed (e.g. “injure” or “sexual intercourse”) but may also
contain a description of the way in which the act must be performed (e.g. “violently” or “without
consent”), the person performing the act (e.g. “a licence holder”),the person or object in respect of
which the act must be performed (e.g. “a minor”), the place where the act must take place (e.g.
“on a public road”), a particular time during which the act must take place, and so forth.

3.4.1. Arrangement of crimes according to their definitional elements

Crimes may be divided into different groups or categories according to their definitional elements.

First, one may differentiate between crimes which impair legally protected interests (e.g., malicious
injury to property, assault and murder) and crimes which merely endanger such interests (e.g.,
negligent driving, unlawful possession of a firearm, unlawful dealing in, or possession of, drugs and
high treason).

Secondly, one may differentiate between crimes committed by means of a single act (e.g., assault
and fraud) and crimes committed by means of more than one act (e.g., robbery, which requires
both violence and an appropriation of property).

Thirdly, it is possible to differentiate between crimes requiring a single intent (such as murder, rape
and assault) and crimes requiring a double intent (such as abduction, where, in addition to
intending to remove the minor, X must also intend to marry or have sexual intercourse with him or
her; corruption; housebreaking with intent to commit a crime; and assault with intent to do grievous
bodily harm).

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Fourthly, one may differentiate between crimes which can be committed only by means of one’s
own body (sometimes referred to as “autographic crimes”) (such as the old common-law crimes of
rape and incest) and crimes which can also be committed through the instrumentality of another
(such as murder or assault).

Fifthly, one may differentiate between crimes in respect of which a certain act or omission is
proscribed, irrespective of its result (formally defined crimes) and crimes in respect of which any
conduct that causes a certain result is proscribed (materially defined crimes, also called result
crimes). In terms of result crimes, the conduct is not prohibited or inherently criminal; the actual
result which was brought about by such conduct is prohibited. Therefore, as a sub-requirement of
the requirement of compliance with the definitional elements, causality is part of the definitional
elements of materially defined crimes.

Formally defined crimes – ‘conduct crimes’ Materially defined crimes – ‘result crimes’

• The type of act or conduct is directly • The consequences / condition / result is

prohibited. prohibited, not a specific act.
• Consequences of conduct is irrelevant, • A causal link must therefore have existed
therefore causal link is not required. between the act and the eventual prohibited
consequence.
• E.g., possession of drugs, driving a motor car
negligently • E.g., murder or arson.

3.4.2. Causation / causality

As mentioned, the sub-requirement of causation is only relevant as part of the definitional elements
of materially defined crimes (result crimes). An additional requirement has to be complied with in
order to establish liability for the commission of materially defined crime: it must be proved that the
accused’s action caused the eventual prohibited consequence.

Causation refers to the causal link (nexus) between the accused’s conduct and the
prohibited situation. In other words, the causation requirement is only relevant to
materially defined crimes (‘result crimes’).

Thus, the causation requirement forms part of the definitional elements of ‘result crimes’ (materially
defined crimes). If the type of crime in question requires a causal link, this requirement must be
satisfied to prove criminal liability. A causal link must therefore have existed between the act and
the eventual prohibited consequence.

The causal link is a specification of the circumstances in which the act is punishable. The causation
requirement is an indication of how one crime may differ from another: whereas all crimes require
an act, not all require causation. Whether there was an act is one enquiry; whether the act caused
a certain situation (result) is an entirely different one.

S v Daniels 1983 3 SA 275 (A): to determine whether certain conduct has caused a certain
prohibited condition, two requirements must be met:

1. Factual causation is used to determine whether the conduct was a factual cause of the
condition (i.e., whether there was a factual causation). The conditio sine qua non theory (“but

57
 for”) will be applied to determine factual causation. Conditio sine qua non refers to an act or
conduct without which the prohibited situation would not have materialised. Conduct is a
conditio sine qua non for a situation if the conduct cannot be ‘thought away’ without the
situation disappearing at the same time. However, there can be more than one cause or
contributory cause.

2. Legal Causation is subsequently used to determine whether the conduct was also the legal
cause of the condition (i.e., whether there was legal causation). Legal cause is a question of
legal attribution (legal blame). In this regard, the court in S v Mokgethi 1990 1 SA 32 (A) found
that a flexible criterion for legal causation is preferred. Thus, the overriding consideration in the
determination of legal causation is that the court should be guided by policy considerations,
i.e., the demands of what is reasonable, fair, and just. Criminal liability should be limited to such
consequences that are sufficiently close or directly linked to the wrongful act.

In the case of S v Mokgethi, the accused shot the deceased during a bank robbery. The deceased
had medical attention but died of septicemia six (6) months later after ignoring medical advice. It
was clear that the accused’s action directly resulted in the deceased’s gunshot wound and was
thus a factual cause of the deceased’s death. However, based on policy considerations, the court
found that it would not be reasonable, fair, and justice, to consider the accused’s actions as the
legal cause of the deceased’s death. As a result of the deceased’s own negligence, the
accused’s actions were too remote from causing the result for murder. The accused was found
guilty of attempted murder.

To illustrate the two-pronged test for causality above, let’s use the following example: X & Y are
walking to school together. Y pushes X, whereafter X pushes Y back and Y stumbles into the street in
front of a car. The car swerves to miss Y and instead hits a lamp post. The lamp post falls over into
Z’s yard and traps Z in the garage where he is working on his bicycle. Z breaks the garage window
to get out and cuts his hand on the glass. Z needs stitches and has to go to hospital. While Z is at
hospital receiving medical attention a patient from the mental ward attacks him. Z tries to escape
from the mental patient and bumps into T. T (who is on crutches) loses his balance and knocks over
a pot plant which lands on V’s foot, causing a fracture.

1. In applying the factual causation test (the conditio sine qua non theory / “but for” test), it is
clear that there is a factual link between X’s conduct and V’s fractured foot.

2. Subsequently, we must also now apply the consideration of legal causation. Based on
policy considerations on reasonableness, fairness, and justice, X’s conduct is not sufficiently
close or directly linked to the outcome, viz. V’s fractured foot.

Summary of rules for determining causation

The most important rules pertaining to causation presently applied in our law may be summarised
as follows:
1) In order to find that X’s act had caused a certain condition (such as Y’s death), X’s act must
first be a factual cause and secondly a legal cause of Y’s death.

2) In order to determine whether X’s act is a factual cause of Y’s death, the conditio sine qua
non formula is applied: X’s act is a factual cause of the death if X’s act cannot be thought
away without Y’s death disappearing at the same time.

3) Many factors or events may qualify as factual causes of a prohibited condition. In order to
eliminate factual causes which are irrelevant, the criterion of legal causation is applied.

4) X’s act is the legal cause of Y’s death if a court is of the opinion that policy considerations

58
 require that X’s act be regarded as the cause of Y’s death. By “policy considerations” is
meant considerations which ensure that it is reasonable, fair, and just to regard X’s act as
the cause of Y’s death.

In Learning Unit 5, we will discuss the specific / unique elements for various crimes. For example, the
unique feature about the crime of murder is that it relates to conduct that (1) caused (causation
requirement) the (2) death of someone else. In other words, compliance with the definitional
elements of murder, for example, will require that the alleged perpetrator’s conduct caused the
death of the victim. Upon the completion of your studies, you must be able to identify the unique
definitional elements of the crimes relevant to this subject and combine such an understanding
with the requirements for criminal liability.

In the discussion above it was indicated that “conduct” must be “the type of act described in the
definitional elements” of a particular crime in order to hold a specific perpetrator accountable for
a specific crime. In other words, the perpetrator must be considered legally to blame for the
commission of conduct which complies with the definitional elements of the specific crime in
question under circumstances considered unlawful. From this perspective it is clear that conduct
serves a dual purpose in relation to criminal liability:

When considered as an essential part of the compliance with the definitional elements, “conduct”
of the accused must satisfy the following requirements:
 Perpetrator’ must have committed an act or neglected to act positively despite a legal duty;
 It must have been human conduct;
 The conduct must have been voluntary (X is capable of subjecting her bodily movements to
her will or intellect); and
 The conduct must have complied with the definitional elements of a specific acknowledged
crime.

3.5. UNLAWFULNESS / WRONGFULNESS

Conduct is unlawful if it is ‘unjustified’ or ‘without justification’ under the circumstances in

the eyes of the boni mores (good morals) or legal convictions of society – i.e.,
‘unjustifiable criminal conduct’.

“Unlawful” (“wrongfulness”) means, of course, “contrary to law”, but by “law” in this context is
meant not merely the rule contained in the definitional elements of the crime, but the totality of the
rules of law, and this includes rules which in certain circumstances allow a person to commit an act
which is contrary to the “letter” of a legal prohibition or norm. Therefore, unlawfulness consists in
“conduct which is contrary to the community’s perception of justice or with the legal convictions of
society”. In other words, “unlawfulness” is therefore, the absence of justification for the conduct
complying with the definitional elements.

For purposes of criminal liability, the conduct must have been committed in an unjustified manner.
The law tolerates conduct (i.e., regards it as lawful) if the particular conduct protects a value or
interest which in the eyes of the law is more important than the value or interest which the conduct
infringes. Therefore, prima facie unlawful conduct may, under certain circumstances, be legally
excusable or justifiable and will consequently exclude criminal liability.
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Wrongfulness will be determined after the fact, taking into consideration all the relevant
circumstances (objective test):

i. Does the conduct comply with the definitional elements of the crime? If yes, then conduct is
prima facie unlawful.

ii. Was the conduct justified or was it committed in a legally reprehensible or unreasonable
manner i.e., conflicts with the boni mores (good morals) or legal convictions of society? If
yes, conduct is conclusively unlawful.

Consider the following example: X, while driving his motor car, exceeds the speed limit. This act
complies with the definition of the proscription of the offence “to drive a motor car on a public
road at a speed in excess of (say) 120 kilometers per hour”. X’s actions are, therefore, a prima facie
criminal offence. If, however, X is speeding to the hospital because his child has stopped breathing,
the law will tolerate such speeding because it is legally justifiable under the circumstances to try to
save the child’s life. The conduct is still complies with the requirements of a criminal offence, but is
not punishable because his conduct will not be unlawful.

The wrongfulness of an act is always determined with reference to its consequence. If a seemingly
wrongful act does not cause a prohibited result, there is no crime, unless the act itself is criminalized
(formally defined crimes). An act and its consequences may be separated by time and space. The
act is only wrongful once the harmful consequences ensue. For example, X cannot be found guilty
of murder for having shot, but not killing Y, depending on the circumstances, a charge of
attempted murder may be applicable.

Defences related to unlawfulness (“grounds of justification”)

In practice there are a number of well-known situations where the law tolerates an act which
infringes the “letter” of the law as set out in the definitional elements. These situations are known as
grounds of justification. Well-known grounds of justification which will be discussed in Learning Unit 4,
are private defence (which includes self-defence), necessity, consent, unauthorised agency
(negotiorum gestio), obedience to superior orders, and official capacity. Grounds of justification
may be raised as defence against criminal liability - see ‘Defences’ in unit 4.

The concept of “wrongdoing” implies that there must be (1) conduct on the part of X,
which (2) accords with the definitional elements of the crime charged, and (3) that was
committed by X in circumstances for which there is no legal justification (unlawfulness).
Clearly, all three requirements of criminal liability referred to above, relates directly with the
conduct itself. On some occasions, our court have referred to this tripartite as “actus reus”.
“Actus reus” generally denotes the external or physical situation forbidden by law, i.e., the
external elements that relates to the commission of a specific criminal conduct (including
voluntary acts or omissions) or the causation of a prohibited result, including the unique
definitional components of the particular crime, and a lack of grounds of justification
(unlawfulness). The expression “actus reus” means the same as “wrongdoing” or “unrecht”
in German, “onreg” in Afrikaans.

Thus, “wrongdoing” (“unlawful act” or actus reus) summarises all the physical requirements
for liability with the exception of culpability, which in turn relates to the perpetrator’s
mindset rather than his actions.

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3.6. CULPABILITY

Culpability relates to the alleged perpetrator’s culpable (blameworthy) frame of mind at

the time of commission of the unlawful conduct, either in the form of intention or
negligence, and whilst possessing the necessary criminal capacity.

Even if the conduct corresponds not only to the definitional elements but is also unlawful, it still does
not necessarily mean that X is criminally liable. There is still one last important requirement which
must also be complied with, namely that X’s conduct must have been culpable. This element is
sometimes described by the Latin expression mens rea (“a guilty mind”). Whereas the requirements
related to the offender’s conduct denotes the “external” (actus reus) requirements of the offence,
mens rea denotes the “subjective” (“internal” or “mental”) components relating to the specific
perpetrator’s “state of mind”. In other words, mens rea denotes the subjective requirements for
liability for the crime in question, i.e., the perpetrator’s culpable frame of mind at the time of
commission of the offence. “Culpability” is derived from the Latin word culpa, which means
“blame” (“blameworthiness”).

The culpability requirement means that there must be grounds upon which X may, in the eyes of the
law, personally be blamed for his unlawful conduct. Here the focus shifts from the act to the actor,
that is, X himself, his personal abilities, knowledge, or lack thereof. The culpability requirement
comprises two “forms of culpability”, viz. intention and negligence. It also includes a further
indispensable component, viz. criminal capacity. Below, we will first discuss the component of
criminal capacity and thereafter, the forms of culpability.

3.6.1. Criminal Capacity

Criminal capacity is not a separate, independent requirement, but forms part of the requirement of
culpability; without a perpetrator who has criminal capacity no court can come to the conclusion
that such a perpetrator is to be blamed for what he did. Therefore, before the issue of the
requirement of guilt may be raised, the court should establish that the accused, which has
performed the unlawful act, was indeed criminally liable. If the court finds that the accused lacks
criminal capacity, it is impossible to blame him for the state of mind in which he had performed the
act. Then the question about his fault is not even considered and he will not be found guilty of that
crime.

Criminal capacity means that, at the time of the commission of the offence, the alleged
perpetrator must have the capacity or ability to distinguish between right and wrong, and
to act accordingly.

Practically, it means inter alia that the perpetrator must be neither a child (below a certain age) nor
suffering from a mental illness (insanity) when he commits the crime.

The test for criminal capacity

Section 78(1) of the CPA has been interpreted as establishing the “test” for criminal capacity. It
provides that:

“A person who commits an act or makes an omission which constitutes an offence and who at the
time of such commission or omission suffers from a mental illness or intellectual disability which
makes him or her incapable—
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 (a) of appreciating the wrongfulness of his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or her act or
omission,
shall not be criminally responsible for such act or omission.”

o The two listed factors, (1) the appreciation of wrongfulness, and (2) the ability to act
accordingly, entail two psychological factors.

a. The ability to appreciate wrongfulness relates to a cognitive function of insight, i.e., the
ability to differentiate;

b. The ability to act in accordance with such an appreciation relates to a conative function
of self-control, i.e., the power of resistance.

o If the perpetrator lacks either the appreciation of wrongfulness or the ability to act accordingly,
he lacks criminal capacity and by extension culpability, and cannot be held criminally liable
for unlawful conduct in which he engaged while lacking one of these abilities.

o “Mental illness or intellectual disability” - A person is endowed with capacity if he has the
mental and intellectual abilities required by law to be held responsible and liable for his
unlawful conduct. Generally speaking, it stands to reason that people, such as the mentally ill
(the “insane”) and very young children, cannot be held criminally liable for their conduct, since
they lack the mental and/or intellectual abilities which normal adult people have.

o The absence of capacity should be distinguished from involuntary behaviour. Voluntariness

relates to the power or ability of a person to subject his bodily movement to his will or intellect –
to control his physical movements by will. Even very young children or mentally ill persons can
control their physical movements, in most instances. Absence of criminal capacity relates to the
lack of mental power of insight and self-control.

o The absence of capacity should be distinguished from the forms of culpability (intention or
negligence. The former (criminal capacity) relates to the absence of the cognitive function of
insight (i.e., to distinguish between right and wrong), whereas the latter (forms of culpability)
relates to the person’s actual knowledge that what he is doing is wrong.

Defences related to criminal capacity

Various factors are recognised in our criminal law, which make particular persons criminally
irresponsible. For our purposes, the most important defences related to criminal capacity is mental
illness and youthfulness. Both these defences will be discussed in more detail in learning unit 4.

Mental illness or mental defect

In South Africa, successfully raising a defence of criminal incapacity is not nearly as easy as it
sometimes appears to be on television or in the movies.

The first reason for such a submission is because of the judicial presumption of criminal capacity in
section 78(1A) of the CPA. The section provides a judicial presumption that every person is mentally
competent and thus criminally responsible, until the contrary is proved on a balance of
probabilities – sec 78(1A). In order to shift the presumption of mental competence, the burden of
proof is on the party who raises the issue – section 78(1B). Thus, in raising the defence of criminal
incapacity, as a result of mental illness or mental defect, the burden to prove incapacity rests with
the defence.

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The second reason is that the defence of mental illness is limited to situations where the person
suffered from a pathological disturbance of his mental faculties. “Pathological” means “emanating
from a disease”. However, the terms mental illness or mental defect do not relate to only certain
known forms of mental abnormality, to the exclusion of others. Such a mental state will fall under
the exclusive knowledge of the alleged offender (and his mental healthcare practitioner) and
therefore, the burden of prove in regard to mental illness is appropriately shifted onto the defence
(sec 78(1B)).

Youthfulness
The youthful age of particular persons make them criminally irresponsible. The age of a young
person or child may have an influence on criminal responsibility. A “child” for purposes of criminal
law is defined as someone under the age of eighteen. Criminal incapacity due to youthful age
may be raised as a defence against criminal liability.

In short, section 7 of the Child Justice Act 75 of 2008 provides for three age-groups with diverging
effects on the presumption of criminal capacity:

A. Children under the age of 10 years are irrebuttably presumed to lack criminal capacity and
cannot be arrested by a police official or prosecuted.

B. Children between 10 years and 14 years are presumed to lack criminal capacity, but the
presumption may be rebutted by the State, i.e., a rebuttable presumption of criminal
incapacity.

C. Older children who have completed their fourteenth year of life but is not yet eighteen years
of age, are, like adults, presumed to have criminal capacity but the presumption may be
rebutted.

3.6.2. Forms of culpability (fault) - intention and negligence

To be held criminally liable it is required that the person must have committed the act with intention
or negligently. Fault refers to the blameworthy mindset of the doer at the time of the commission of
the conduct. The question of fault only becomes relevant once the wrongfulness of conduct and
criminal capacity has been established. Two main forms of fault (culpability) will be discussed
below, viz.:
1. Intent (dolus) - positive character, i.e. X willed or knew or foresaw something.
2. Negligence (culpa) - negative character - X did not will or know or foresee something,
although according to legal standards he should have known or foreseen it

Intention

Intention means to know and to will (desire) an unlawful act or a result.

This form of fault may be defined as ‘the blameworthy state of mind’ of a criminally responsible
person that performs an unlawful act with the will to perform such act or cause such consequence
while knowing that this conduct is unlawful. Intention is therefore, to know (knowledge of
unlawfulness) and to will (desire) an unlawful act or a result.

The test for intention is subjective, i.e., did X foresee the result as fact? More specifically, a person
acts intentionally:
 While directing his will,
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  In the knowledge of the circumstances that falls within the definition of a crime, and
 Knowledge of the unlawfulness thereof.

Two elements of intention

Intention, in whatever form, consists of two elements, namely volitional (will) and cognitive
(awareness) elements respectively, both being necessary components of culpability.

The cognitive (awareness) element relates to the perpetrator’s intellectual element of

awareness/knowledge. It consists in X’s knowledge of the act, of the circumstances mentioned
in the definitional elements and of the unlawfulness.

The conative (volitional) element relates to the perpetrator’s desire or will. It consists in
directing the will towards a certain act or result: X decides to accomplish in practice what he
has previously pictured to himself in his imagination only. This decision to act transforms what
was until then only “day-dreaming”, “wishing” or “hoping” into intention.

Intention in the technical sense of the term can therefore be defined as the will to commit the act
or cause the result set out in the definitional elements of the crime, in the knowledge of the
circumstances rendering such act or result unlawful. Defined even more tersely, one can say that
intention is to know and to will an unlawful act or a result.

Forms of intent
In a crime requiring intention, it is possible for the prosecution to prove the perpetrator’s state of
mind as typifying diverging gradations or degrees of intent. Each gradation implies a more
significant degree of the volitional or voluntative component of intent, i.e., a greater degree of the
element of desire or will. In addition to the recognised gradations of intent, both primary legal
traditions acknowledge the need to prove a specific purpose or intent in relation to certain classes
of crimes; generally referred to as special or specific intent (dolus specialis or ulterior intent).

Various forms of intent have been identified in our criminal law accommodating the will to act in
different situations:

i. Direct (also known as “actual”) intention (dolus directus): The will to act consists of a direct
aim to perform the act or cause the consequence. For example, X wants to kill Y. He knows
that Y will die if he shoots him in the head. Thus, he goes to Y and willingly shoots him, which
causes the death of Y. X also knows that this is unlawful.

ii. Indirect intention (dolus indirectus): In this instance the act performed, or consequence
caused by the act is not the direct aim. However, the person doing it knows that if he or she
should perform the act, the unlawful act or consequence would certainly or inevitably set in.
A rents a house from B. A is sitting in a room with closed windows cleaning his firearm. A sees
his neighbour’s cat sitting on the neighbour’s wall. This cat is a terrible nuisance for it digs up
A’s plants and is very noisy at night. He decides to shoot the cat and takes aim. A however
knows that in order to kill the cat, the bullet must inevitably travel through the glass pane of
the window, thereby shattering the glass. He pulls the trigger, the glass shatters as the bullet
travels through it and the bullet strikes the cat killing it (which was the main object of the
exercise).

iii. Constructive (also known as “eventual”) intention (dolus eventualis): In this instance the
person does not wish to cause the unlawful consequence and the consequence is not
inevitable either. The person only foresees that his or her conduct may possibly have an
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 unlawful consequence and accepts the possibility and reconciles him or herself with it. The
person has a ‘don’t care’ attitude about the unlawful consequence setting in or not. For
example, X wants to cause the death of Y. He takes his gun and goes to the park where Y is.
At the park he sees that there are many other people in close proximity of Y and realises that
there is a possibility that he may hit one of them instead of Y. He, nevertheless, reconciles
himself with this possibility and goes ahead and fires the gun at Y. He kills a person behind Y.

Defences related to intention

The perpetrator must “know or foresee that the type of conduct in which he is engaging is
criminally punishable, that it takes place in circumstances in which it fulfills the definitional elements
of the crime concerned, and that it is unlawful (ie, unjustifiable). If he does not know or foresee it,
his ignorance or mistake excludes intention.” In other words, if the doer makes an error regarding
the wrongfulness of his conduct, he does not act with intent. Error may be raised as a defence
against criminal liability, which may exclude intent. This will be discussed in more detail in Learning
Unit 4.

Negligence
In the case of intention, the person will be blamed because it is possible to actually foresee the
unlawful act or consequence. In the case of negligence the person will be blamed because he or
she acted contrary to the norm of the ‘reasonable person’. (This test is similar to the test for
negligence in the law of delict).

The person is blamed for an attitude of carelessness or thoughtlessness by giving insufficient

attention or thought to his conduct. What is required of law is to conduct your actions with a
degree of care and thought.

Negligence means the person’s blameworthiness is based on an attitude of carelessness

or thoughtlessness that deviated from that of the ‘reasonable person’.

Test for negligence

The objective standard or reasonable person test is used to test the conduct of the accused with
that expected by society. The question asked is whether a ‘reasonable person’ would have
foreseen the forbidden consequence and could reasonably have taken steps to avoid it. If the
answer is ‘yes’ the accused was negligent.

Reasonable person test rests on two pillars:

 Reasonable foreseeability: A wrongdoer is only negligent with reference to a specific

consequence if that consequence was reasonably foreseeable.

 Reasonable preventability: The reasonable person would have taken steps to guard or
prevent against the reasonable foreseeable consequences.

Therefore, a “person’s conduct is negligent if:

i. The reasonable person in the same circumstances would have foreseen the possibility that:
the particular circumstance might exist; or that his conduct might bring about the particular
result;

ii. The reasonable person would have taken steps to guard against such a possibility; and
65
 iii. The conduct of the person whose negligence has to be determined differed from the
conduct expected of the reasonable person.”

Consider the following example: X is a driver of a bus. He takes a corner in a road far too fast, which
results in a collision. One of the passengers in the bus dies as a result of the injuries sustained in the
collision. X is charged with culpable homicide as the State alleges that he negligently caused the
death of the passenger.

The blameworthy mindset of the two forms of culpability (fault) can be summarised as:
(1) intention implies that the perpetrator acted with awareness and a will (desire) to
commit the act of cause the prohibited result,

(2) negligence implies that the perpetrator should have foreseen the forbidden
consequences and should have taken reasonably preventative steps to avoid it.

3.7. SEQUENCE OF REQUIREMENTS FOR CRIMINAL LIABILITY

The prosecution must prove the simultaneous existence of all the applicable requirements for
criminal liability at the time the offence was committed, in order for an accused to be convicted
by a court of law. Generally, but not without exception, the determination of criminal liability will
follow the following order:
• Was there a voluntary act or omission?
• Does the conduct comply with the definitional elements of the crime charged (including
causality, if applicable)?
• Was the conduct unlawful?
• Was X’s personally culpable – criminal capacity and at fault?

The sequence above may be illustrated as follows:

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 *******
3.8. SELF-EVALUATION QUESTIONS

 List and define the requirements for criminal liability.

 What is the difference between culpability and criminal capacity?
 Provide a complete summary of the role of conduct in the determination of criminal liability.
 Differentiate between actus reus and mens rea.
 Identify the mental attributes required of an alleged perpetrator at the time of commission of
the criminal conduct.

3.9. ASSESSMENT CRITERIA

When you have worked through this unit and answered the self-evaluation questions, you should
be able to you:

1. identify the different requirements for criminal liability;

2. know what the elements of a crime are;
3. understand the general sequence for determining criminal liability.

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LEARNING UNIT 4: ACKNOWLEDGED DEFENCES AGAINST CRIMINAL
LIABILITY
4.1. INTRODUCTION

Defences: The goal with raising a defence is to eliminate the criminal responsibility of the alleged
perpetrator. In other words, these are conditions / circumstances that tend to negate or eliminate
one or more of the elements of a crime or a prerequisite for criminal liability. Therefore, an
available and applicable defence(s) is usually a condition or circumstance, raised by the defence
counsel (accused), in order to argue that the alleged perpetrator should not be held criminally
responsible (to blame) for the offence charged.

No close list of conceivable defences exists, however there are some acknowledged and well-
known defences in criminal law.

There are a number of common defences to a criminal charge, which do not relate the exclusion
of a requirement for criminal liability per se:

1. Every crime has a different definition of the proscription. Thus, a defence can be raised
upon the absence of a particular in the definition of the proscription of the particular crime
charged, for example, “entering” in housebreaking or “property” in theft.

2. Accused can dispute that the type of conduct with which he is charged has been
recognised by the law as a crime, in clear terms, before the conduct took place. The so-
called common law maxim “nullum crimen, nulla poena sine lege” (‘no crime, no penalty
without law’) - the principle of legality – entrenched in s35(3)(l)&(o) of the Constitution. See
discussion above regarding legality.

3. One can raise defences of a procedural nature or defences related to the law of evidence.
Sec 35(5) of the Constitution – known as the exclusionary rule - states that evidence
obtained during the criminal investigation process in a manner that violates any right in the
Bill of Rights must be excluded if [and only if] the admission of that evidence would render
the trial unfair, or otherwise, be detrimental to the administration of justice. Thus, if the
admissibility of evidence is successfully challenged, it may not be adduced in court and the
State (prosecution) may fall short of proving the legal guilt of the person beyond a
reasonable doubt.

4. The general defence called ‘alibi’. ‘To have an alibi’, means that the accused was
somewhere else and not on the scene of the crime when the crime was committed. Such a
defence will usually be raised during the criminal investigation phase and is not generally
raised by the time the accused is on trial.

5. That someone else committed the crime.

The following discussion does not contain a complete list of every conceivable defence which an
accused can raise when charged with a crime. The only defences included in this course are those
based upon or related to the absence of a general prerequisite for liability in terms of the general
principles of criminal law – in other words defences that may exclude one or more of requirements
for criminal liability as discussed in unit 2. So-called defences may provide partial or complete
exclusion of criminal responsibility.

Categories of defences and their effect on the requirements for criminal liability
There is a relationship between a particular defence and the corresponding prerequisite for liability.
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 ***** In the discussion to follow, several important defences will be discussed. To facilitate a
structured discussion, defences are grouped or categorised together based on the effect such a
defence may have in excluding a specific requirement(s) for criminal liability, if raised successfully.
In other words, the purpose of the category headings is to point out the relationship between a
particular defence and the corresponding general prerequisite for liability. When studying this
portion of the work, you must be able to distinguish between the defence itself and the specific
requirement(s) for criminal liability it may exclude (evident from the heading). Stated differently,
the category headings (grouping) are not defences, they indicate the requirement for criminal
liability that will be excluded if a certain defence is raised successfully. *****

Acknowledged defences against

Categories (grouping) of defences
criminal liability

o Absolute force
1. Defences excluding conduct: o Automatism
o Impossibility

2. Defence that the conduct does not o Act does not comply with definitional
comply with the definitional elements elements or lacks proof of causation
and/or causation: o Novus actus interveniens

o Self-defence / private defence

o Necessity
o Consent to injury
3. Defences excluding unlawfulness:
o Presumed consent (negotiorum gestio)
o Obedience to superior orders
o Official capacity

o Youthfulness
4. Defences excluding criminal capacity:
o Mental illness

5. Defences excluding intention: o Error – factual and legal error

6. Defences excl. various possible elements or o Intoxication

multiple elements of criminal liability: o Provocation

The purpose of the table below is to point out the relationship between a particular defence and the
corresponding general prerequisite for liability.

Defence General prerequisite for liability Verdict if defence is

placed in issue successful
Nullum crimen, nulla Requirement of legality Not guilty
poena sine lege -
(principle of legality) –
this is not technically a
defence
Automatism due to involuntary Conduct Not guilty*
conduct not attributable to
mental illness

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 Impossibility Voluntary conduct in form of Not guilty
omission
Absolute force Requirement of voluntariness Not guilty

Act does not comply with Requirement that conduct Not guilty
definitional elements should comply with definitional
elements
Act not a sine qua non for result, Requirement of causation Not guilty (but possibly guilty of
or not an adequate cause of a less serious formally defined
resultant condition, or novus crime, such as assault)
actus interveniens
Grounds of justification: Unlawfulness Not guilty
• Self-defence / private
defence
• Consent to injury
• Negotiorum Gestio
• Obedience to superior orders
• Official capacity
Necessity Necessity may serve as either a Not guilty
ground excluding the
unlawfulness of the act or as
one excluding culpability
Youth Criminal capacity Not guilty
Mental abnormality, including Criminal capacity Not guilty, but X usually ordered
automatism due to mental to be detained in psychiatric
illness hospital or prison
Intoxication Conduct Not guilty* of crime charged,
but guilty of contravening s 1 of
Act 1 of 1988
Criminal capacity Not guilty* of crime charged,
but guilty of contravening s 1 of
Act 1 of 1988
Intent required for crime Not guilty, but usually guilty of
charged less serious crime which is a
competent verdict on main
charge
Provocation Intent required for crime Not guilty, but usually guilty of
charged less serious crime which is a
competent verdict on main
charge
If charged with crime Intention Not guilty (at least on main
requiring intent: result or charge – possibly guilty of less
circumstances not foreseen serious crime which is a
competent verdict on main
charge)

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 If charged with crime Intention Not guilty (at least on main
requiring intent: mistake, charge – possibly guilty of less
either of fact or of law serious crime)
If charged with crime Negligence Not guilty
requiring negligence:
conduct was reasonable, ie,
did not deviate from conduct
to be expected of reasonable
person in the circumstances;
OR unlawful result or
circumstances not
foreseeable

4.2. DEFENCES EXCLUDING CONDUCT (OR THE ACT)

Conduct refers to a will directed or will controlled voluntary human act (positive action)
or omission (failure to act when there is a legal duty to do something).

There is no single set of circumstances that will exclude a persons’ conduct (and therefore the
person’s liability). As discussed above, “conduct” includes several requirements. In relation to the
requirement of conduct, we will discuss three defences that may exclude the voluntary nature of
the conduct, viz. automatism and absolute force, and in relation to the voluntariness of omissions,
the defence of impossibility.

What must be determined is whether a person acted voluntarily. Conduct is voluntary if a person is
capable of subjecting his or her bodily movements to his or her intellect or will. Such a person must
therefore be able to take a decision (to act or not to act) and be able to control his or her conduct
accordingly.

The following are defences in which it can be said that a person did not act voluntarily:

4.2.1. Absolute Force

The voluntariness of an act is excluded, first, by absolute force (vis absoluta). A person cannot be
said to have acted if such a person was subjected to absolute force or “superior force”. In this form
of force a person’s ability to subject his or her bodily movements to her will or intellect is excluded.

The following is an example of absolute force: X is slicing an orange with her pocket-knife. Z, who is
much bigger and stronger than X, grabs X’s hand which holds the knife and presses it, with the
blade pointing downward, into Y’s chest. Y dies as a result of the knife-wound. X with her inferior
physique would have been unable to prevent the incident, even if she had tried. X performed no
act. It was Z who performed the act.

The force must be absolute. In other words, there is no possibility of choice. In a situation where
there is only relative force (vis compulsiva), X does have the ability of subjecting her bodily
movements to her will or intellect but is confronted with the prospect of suffering some harm or
wrong if she chooses not to commit it. In an emergency situation where there is relative force and X
must make the decision between causing harm to another or enduring harm herself, such a
situation will fall under the defence of necessity or private defence, where applicable. For
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example, Z orders X to shoot and kill Y, and threatens to kill X herself if she (X) refuses to comply with
the order. The circumstances are such that X cannot escape the predicament in which she finds
herself. If X then shoots Y, there is indeed an act, but X may escape liability on the ground that her
conduct is justified or excused by necessity. In this form of coercion X is influenced to act in a
certain manner, but it still remains possible for her to act in a manner in which she can avoid the
injurious conduct and therefore, such a situation does not amount to absolute force.

4.2.2. Automatism
There is no act where a person behaves in a mechanical fashion and therefore involuntarily. There
is not an exhaustive list of situations where a person acts ‘mechanically’, but some of the most
prominent examples of mechanical behaviour that is illustrated in case law, includes: reflex
movements such as heart palpitations or a sneezing fit, sleepwalking, muscular movements such as
an arm movement while a person is asleep or unconscious or having a nightmare, an epileptic fit,
and the so-called “black-out”. These are examples of situations which causes the person to act in a
mechanical fashion.

The question to be asked is whether it was voluntary, in other words, whether the person concerned
was capable of subjecting his bodily movements to the control of his/her will. These mechanical
movements will eliminate the element of an act if it was made involuntarily.

4.2.3. Impossibility
An omission means that there is a legal duty upon somebody to perform a certain type of positive
conduct. A person is therefore guilty by way of an omission if the person fails to perform the positive
conduct.

Omissions, like acts, must be committed voluntarily. Therefore, criminal liability requires that even
though X was capable of subjecting his bodily movements to his will or intellect, he failed to act
positively (in circumstances that required a positive legal duty to act). Therefore, an omission is
only punishable if it is possible for X to perform the positive act (required by the legal duty), and he
fails to act under such circumstances. After all, the law cannot expect somebody to do the
impossible (lex non cogit ad impossibilia).

“Impossibility” is therefore, a defence against a charge that a person failed to act positively in
instances where the law imposed a positive legal duty, and it was objectively and physically
impossible for X to comply with the relevant legal provision under the circumstances. Thus, with
impossibility, it is impossible to adhere to a statute that orders you to act in a certain way, whereas
with necessity, it is necessary to transgress a prohibition.

The requirements for the defence of impossibility are as follows:

1. The defence is available only if the legal provision which is infringed places a positive duty on X.
Put differently, the defence is applicable only if the prosecution alleges that X failed to do
something – in other words, if X is charged with an omission. By implication, an omission can only
exist if there was a legal duty to act positively, which the person failed to do.

2. It must be objectively and physically impossible for X to comply with the relevant legal
provision. It must be impossible for any person placed in X’s position to comply with the law. It
must also be absolutely (and not merely relatively) impossible to comply with the law. The mere
fact that compliance with the law is exceptionally inconvenient for X or requires a particular
effort on her part does not mean that it is impossible for her to comply with the law.

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3. There is authority for the proposition that X cannot rely on impossibility if she herself is
responsible for the circumstances in which she finds herself and which makes to positive act
impossible.

4.3. DEFENCE THAT THE CONDUCT DOES NOT COMPLY WITH THE DEFINITIONAL
ELEMENTS AND/OR CAUSATION

4.3.1. Act does not comply with definitional elements

The act or conduct of the person must comply with definitional elements relating to a
specific acknowledged crime.

At the time of commission, the act or conduct must comply with definitional elements of the
specific crime. A defence may be raised if:
o the accused’s conduct is not the type of conduct criminalized (defence excluding legality);
or
o the accused’s conduct was not committed in circumstances which are criminalized.

4.3.2. Conduct that must satisfy causation

Causation refers to the causal link (nexus) between the accused’s conduct and the
prohibited situation. In other words, the causation requirement is only relevant to
materially defined crimes (‘result crimes’).

If the type of crime in question requires a causal link, this requirement must be satisfied to prove
criminal liability. A causal link must therefore have existed between the act and the eventual
prohibited consequence.

Defence may be raised that:

• A causal link has not been proven, i.e., the act is not a sine qua non for the result, or not an
adequate cause of resultant condition; or

• That the causal link has been extinguished because of a novus actus interveniens.

Novus actus interveniens

A novus actus interveniens is a new independent intervening (intruding) cause, which, after the
wrongdoer’s conduct has been concluded, either caused or contributed to the consequence
concerned. A novus actus interveniens may be brought about by the conduct of the accused
himself, the conduct of a third party or natural factors.

A novus actus interveniens may break the causal link (i.e. serve as a defence) or reduce the extent
of criminal liability:
o If the intervening cause completely extinguishes the causal link, the accused is not liable
(i.e., the intervening cause is used as a defence which excludes the conduct of the
accused as the cause for the unlawful result);

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 o If the intervening cause influences the result to such an extent that the result should no
longer be imputed to the actor, his liability will be limited.

4.4. DEFENCES EXCLUDING UNLAWFULNESS (GROUNDS OF JUSTIFICATION)

Conduct is unlawful if it is ‘unjustified’ or ‘without justification’ under the circumstances in

the eyes of the boni mores (good morals) or legal convictions of society – i.e.,
‘unjustifiable criminal conduct’.

As mentioned above, “unlawfulness” implies the absence of justification for the conduct complying
with the definitional elements. Think about the term “justification” for a moment. Have you ever
said, “My actions were justified”, or “I can justify myself”? If so, what were the circumstances and
why did you use those specific words?

In practice there are a number of well-known situations where the law tolerates an act which
infringes the “letter” of the law as set out in the definitional elements. These situations are known as
grounds of justification. There exists no closed list of these grounds. However, well-known grounds of
justification, which will be discussed below, are private defence (which includes self-defence),
necessity, consent, unauthorised agency (negotiorum gestio), obedience to superior orders, and
official capacity.

Note that the above-mentioned grounds are not the only examples and as our law is dynamic,
new grounds may still be recognised by our courts. The above-mentioned grounds were chosen for
discussion, as they appear to be the most common “grounds of justification” applied by the courts
on a regular basis. We will only learn about self-defence and necessity in depth and you will have
to know what the definitions of the rest are, to enable you to identify these grounds, should you
come across them whilst having to advise a member of the community who approaches you for
assistance.

4.4.1. Private Defence (which includes self-defence)

A person acts in private defence, (which includes the concept of “self-defence”), if he defends
himself or somebody else against an unlawful human attack upon life, limb, property or dignity. His
act must be necessary to protect the threatened interest and must also not be more harmful than is
necessary to ward off the attack.

Note that the concept “self-defence” is not strictly confined to “self-defence” and is not totally
correct, as a person who acts in self-defence does not necessarily defend himself but may also
defend the interests of others. Therefore, the correct term is actually “Private defence” as it entails
also the interests of third parties.

The requirements for self-defence

By now you have noticed that in our Criminal Law most of the crimes and/or actions have to meet
certain requirements before they are acknowledged in our law. So too, if a person wants to
successfully rely on self-defence as a ground of justification - both the attack and the act of
defence have to comply with certain requirements. These requirements are as follows:

Requirements that have to be met for the attack:

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 The attack need not necessarily be in the form of a positive act.

 The attack must be unlawful. Thus, for example, if a police officer arrests a person who he
sees stealing a motor vehicle and locks him up in a holding cell, that person may not resist
the arrest. If the police officer, however, arrests an innocent bystander for this crime, his act is
unlawful and the innocent bystander is justified to defend himself.

 The attack must be directed against an interest, which is considered by law worthy of
protection. This means that a person may not only defend his life or limbs but may also
protect his integrity or other legal interests. Self-defence has therefore been recognised in the
following instances: attempt at sodomy, unlawful entry of a home and protection of
property.

 The attack must be imminent but not yet completed. This means that nobody may act in
self-defence in respect of deeds committed in the past or those in the future. If, however,
there is an imminent threatening attack, the person does not have to wait for the first blow
from his attacker, but he may attack in self-defence in order to ward off the threatening
attack. The court will, in such an instance, use an objective test to decide whether there was
a real threatening attack and that the person did not just think that the attack was going to
take place.

The requirements that have to be met for the act of defence:

 The act of defence must be directed against the attacker. If X and Z have a fight and Z
attacks X with a knife, X cannot retaliate by attacking H, who is nearby.

 The act of defence must be necessary to protect the threatened interest. Thus, if the
threatened interest may be sufficiently protected in another way, the least harmful way must
be used to protect it. Thus a person may only act in self-defence if the normal legal remedies
are not available to effectively protect his interests. For example, A is sitting in his lounge
watching television. He hears glass breaking and his wife is screaming that there is an
intruder climbing through the bedroom window with a firearm in his hands. He hears the
voice of an unknown person shouting at his wife that he is going to kill her. In this instance, A
has no other choice but to act upon the situation. The law will not expect of him to first run to
the phone and call for assistance from the police force, as it might be too late to do so. If A
has a firearm and shoots at the person in the bedroom, he would be acting lawfully.

 The act of defence may not be more harmful than is necessary to ward off the attack. This
means that the measures used as the act of defence must be proportionate to the danger.
This requirement is not that simple to comply with. Each case will speak for itself. Some
factors that should be considered by the courts are the relative strength of the parties, the
relationship between the parties, the gender of the parties, the age of the parties, the nature
of the threat, the value of the threatened interest, and the means at the disposal of the
parties. The courts hold the view that it cannot be expected from a person to gamble with his
life. Therefore, a person whose life is threatened and who is unable to ward off the attack in
any other way than by using a fire-arm may use it to kill his attacker. Note that a person who
acts in self-defence and exceeds the limits of self-defence becomes an attacker himself.

 The person who is being attacked must be aware of the fact that he is acting in self-defence.
Unconscious, coincidental or accidental self-defence does not exist. The reason being that
self-defence may not be abused. For example, A, who despises B and wants to create an
opportunity to harm him, provokes B until B loses his temper and assaults A. A then attacks B.
A will not be able to successfully use self-defence as a defence during his trial.

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 Ex parte die Minister van Justisie: in re S v Van Wyk 1967 1 SA 488 (A). Killing someone in
defence of property. “In this case X, a shopkeeper, whose shop had been broken into
repeatedly, took extensive precautionary measures to safeguard his store, without success.
At last, in desperation, he rigged up a shotgun in such a way that a person breaking in
would trigger it off if he entered by a certain window or went behind the counter to take
goods. One night an intruder broke in, set off the contrivance and received a fatal wound.
On a charge of murder X the shopkeeper invoked private defence and the court upheld
his defence. Some of the court’s most important findings were the following: Where both
X’s possessions and her life or limb are threatened by Y, Y may be killed, as where Y is a thief
whom X catches in her house during the night, and where it is clear that Y will offer
resistance rather than leave the house empty-handed (496E–H). However, one may also kill
a thief who is running away with stolen goods, provided this is the only way in which the
goods can be retained (496–498). The court disposed of the objection that there was a
disproportionality between life and property by pointing out that it is not always
practicable to weigh the nature of the interest threatened against the nature of the
interest which is actually impaired (496–497, 503–504). There must not be a less harmful
method available to X of retaining her property (497–498). Eg if she knows that she can
recover the goods at a later stage, she may not shoot (498A). In addition, she may shoot
only if she has first issued a warning (498B–C, 505A, 510C–D) where this is reasonably
practicable. The protected possessions must also not be of trifling value (498A, 503H). The
principles enunciated in Van Wyk were later applied in Mogohlwane 1982 2 SA 587 (T).”

“It is submitted that this judgment is compatible with the Bill of Rights in the Constitution and
therefore valid even today, provided, of course, that the other requirements for private
defence are also complied with, such as that the property must be of very great value to X
and that X must first have tried other, less harmful ways to ward off the attack, to no avail.”

4.4.2. Necessity
A person acts in necessity, and her act is therefore lawful, if she acts in protection of her or
somebody else’s life, bodily integrity, property or other legally recognised interest which is
endangered by a threat of harm that arise as a result of any emergency situation, which has
commenced or is imminent and which cannot be averted in another way but to infringe the rights
of another.

“In the case of necessity, a person infringes upon the rights of another under influence of
circumstances which are created by forces of nature or a third person” – S v Goliath 1972 (3) SA 1
(A).

In Bailey 1982 3 SA 772 (A) 796A, the appellate division held unambiguously that necessity can,
depending upon the circumstance, be either a ground of justification (i.e., a ground excluding
unlawfulness) or a ground excluding culpability.

A situation of necessity may arise through coercion or unavoidable evil:

1. Natural events or forces of nature (for example, two shipwrecked persons, X and Y, vie for
control of a timber beam which can support only one of them. In order to save his own life X
pushes Y away from the beam, so that Y drowns), or
2. Somebody else’s conduct (for example, Z orders X to kill Y and threatens to kill X if he fails to
obey the command; X, fearing for his life, kills Y, an innocent person.)
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The situation is differentiated in terms of the cause of the necessity as follows:

 A person is the attacker but the person being attacked directs his act of defence against the
interest of an innocent third party and not against the attacker. For example, A attacks B with
a “knopkierie” in the house of C. B sees no way clear to defend himself other than to run
away. The only way out of the house is through the front door, which is locked. B breaks
down the door and manages to run away. C, who is the innocent party, is prejudiced.
Another example would be if A demands from B that he kills C on his behalf. B does not want
to but is threatened by A that he will kill him if he does not kill C. B kills C out of fear. This is
clearly a case of coercion or compulsion.

 The emergency situation wherein a person is placed through the aid of non-human powers
and wherein the person being attacked directs himself against the interests of an innocent
third party in order to escape the emergency. For example, a fire breaks out in the block of
flats where C lives. The only way he can escape from the fire is by jumping out of the window.
However, D’s brand new vehicle is parked directly under this window. C, however, jumps out
of the window and damages the roof of the vehicle.

 The act of defence may also be directed against a legal rule in an emergency situation. For
example, D’s son is three years old and falls down the stairs in their flat. It is clear that he
injured himself badly. D takes the child to hospital in his own vehicle but rushes and in the
process exceeds the speed limit. He later on receives a fine through the post for exceeding
the speed limit. He may raise the defence of necessity.

The act in a situation of necessity can only be justified if it is the only way in which to be saved from
the danger. The result of the situation of necessity is not important but the act, which is directed to
escape from the emergency situation, is.

Necessity and self-defence are closely related.

• Both protect interests of value to the ‘perpetrator’ (defender / accused), e.g. his life, property or
body, against imminent danger.
• The act in a situation of necessity can only be justified if it is the only way in which to be saved
from the danger.
• The result of the situation of necessity is not important but the act, which is directed to escape
from the emergency situation, is.
• I.e., the difference lies in the nature of the reaction to the threatened interest. Necessity differs
from self-defence in as much as the person, who wants to escape from the emergency, directs
himself against the interests of another and not against the attacker. The same applies when a
person defends himself against an attack from an animal. The person acts in necessity
because an animal cannot act unlawfully.

Private defence Necessity

• Interest is always threatened by an unlawful • Threat can stem from any emergency
human attack. situation, as explained above.

• The act of defence is always directed at the • The person, who wants to escape from the
unlawful human attack in order to protect emergency, directs himself against the
the threatened interest. interests of another and not against the
attacker.
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8

The requirements for necessity as a ground of justification:

o A legal interest must be threatened or endangered.

o The danger must have begun or must be imminent, but it must not have terminated.

o The endangered person must be conscious of the fact that an emergency exists, and that
she is acting out of necessity.

o The defensive act must be necessary to avert the danger, there is no other option.

o The defensive act must be reasonable and must not be disproportionate to the interest that
is being protected.

In S v Goliath 1972 3 SA 1 (A). The appellate division held that necessity could be a
complete defence even in a situation in which X killed another. In this case X was ordered
by Z to hold Y tightly so that Z might stab and kill Y. X was unwilling throughout, but Z
threatened to kill him if he refused to help him. The court inferred from the circumstances
of the case that it was not possible for X to run away from Z – Z would then have stabbed
and killed him. The only way in which X could save his own life was by yielding to Z’s threat
and assisting him in the murder. In the court a quo X was acquitted on the ground of
compulsion, and on appeal by the state on a question of law reserved, the appellate
division held that compulsion could, depending upon the circumstances of a case,
constitute a complete defence to a charge of murder. It was added that a court should
not come to such a conclusion lightly, and that the facts would have to be closely
scrutinised and judged with the greatest caution.

One of the decisive considerations in the main judgment of the court was that one should
never demand of X more than is reasonable; that, considering everyone’s inclination to
self-preservation, an ordinary person regards her life as more important than that of
another; that only he or she “who is endowed with a quality of heroism” will purposely
sacrifice her life for another, and that to demand of X that she should sacrifice herself
therefore amounts to demanding more of her than is demanded of the average person.

4.4.3. Consent
Consent may, in certain cases, render otherwise unlawful conduct lawful. Consent by the person
who would otherwise be regarded as the victim of X’s conduct may, in certain cases, render X’s
otherwise unlawful conduct lawful. To generalise about consent as a ground of justification in
criminal law is possible only to a limited degree, since consent can operate as a ground of
justification in respect of certain crimes only, and then only under certain circumstances. If, in
crimes in which consent may exclude the unlawfulness of the act (such as theft), no consent has
been given, the conduct is unlawful. If X thinks that consent has been given, whereas in fact no
consent has been given, X may escape liability on the ground that she lacked culpability.

Where this defence is a possibility, it is important to note that we must distinguish between “consent
to injury” and “consent to risk of injury”. The best is to explain this by way of the following examples:

 Consent to injury are the instances where one, for example, gives consent to a doctor to
operate on one or gives a dentist consent to extract a tooth.

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  Consent to the risk of injury can be the instances where, for example, a sportsman
participates in an organised match or tournament such as rugby or boxing. The rugby player
consents to the risk of being tackled during the match and the boxer consents to the risk of
being hit. In both cases the opponents do not commit assault.

Whether consent was indeed given or not is a factual question that has to be answered with
reference to all the surrounding circumstances.

Requirements for successfully relying on consent as a defence

1. The crime and the type of act in question must be of such a nature that the law recognises
consent to the commission of such an act as a ground of justification. Such crimes would
include for example, rape, theft and assault. Euthanasia is currently still considered as a
crime of murder since a person ‘cannot’ consent to his/her own death.

2. The consent must be given voluntarily, without coercion. Mere submission is not consent. If a
woman decides that it is futile to resist the strong, armed attacker who is trying to rape her,
and simply acquiesces in what he does to her, her conduct cannot be construed as
consent to intercourse. In the instances where consent is revoked or withdrawn before the
act, consent to injury cannot be raised as a defence.

3. The person giving the consent must be mentally capable of giving consent. She must have
the mental capacity to know not only the nature of the act to which she consents, but also
to appreciate its consequences. For this reason if a woman is mentally ill, under a certain
age, drunk, asleep or unconscious, she cannot give valid consent to sexual penetration.

4. The consenting person must be aware of the true and material facts regarding the act to
which she consents. What the material facts are depends on the definitional elements of
the particular crime. In the case of rape the woman must be aware of the fact that it is
sexual penetration to which she is consenting.

5. The consent may be given either expressly or tacitly. It is customary to require the patient to
give written consent to some types of operation, but naturally the rugby player need not
before a game give each of his opponents express permission to tackle him. There is no
qualitative difference between express and tacit consent.

6. The consent must be given before the otherwise unlawful act is committed. Approval given
afterwards does not render the act lawful. Consent, once given, remains revocable,
provided the act has not yet been committed.

7. In principle consent must be given by the complainant herself, but in exceptional

circumstances someone else may give consent on her behalf, as where a parent consents
to an operation to be performed on her child.

4.4.4. Presumed Consent

Presumed consent is also referred to as “spontaneous agency”, “unauthorised administration” or
“negotiorum gestio”. It is the instance where a person protects the interest of another without the
consent of that person and in the process violates some other interest of the other person. In other
words, If X commits an act which infringes the interests of another (Y), and X’s act thereby accords
with the definitional elements of a crime, her conduct is justified if she acts in defence of, or in the
furthering of, Y’s interests, in circumstances in which Y’s consent to the act is not obtainable but

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there are, nevertheless, at the time of X’s conduct reasonable grounds for assuming that Y would
indeed have consented to X’s conduct had she been in a position to make a decision about it.

For example: X and Y are neighbours. Y is on holiday. Whilst he is on holiday, X sees that water is
running out of Y’s house. X does not have a key to Y’s house and breaks open the door to establish
where the water is coming from. He sees that a water pipe in the bathroom has burst and so he
turns off the water. X therefore prevents the water from damaging Y’s furniture but has damaged
the door to gain entry to the house.

Requirements for successfully relying on this ground of justification

The requirements for successfully relying on this ground of justification are the
following:
a. It must not be possible for X to obtain Y’s consent in advance. If it is possible, X must obtain
Y’s consent, in which case X may rely on consent as justification.
b. There must be reasonable grounds for assuming that, had Y been aware of the material
facts, she would not have objected to X’s conduct. The test to ascertain the existence of
reasonable grounds is objective.
c. The reasonable grounds for assuming that Y would not have objected to X’s conduct must
exist at the time that X performs her act.
d. At the time of performing her act X must know that there are reasonable grounds for
assuming that Y would not object to her (X’s) acts.
e. X must intend to protect or further Y’s interests.
f. X’s intrusion into Y’s interests must not go beyond conduct to which Y would presumably
have given consent.
g. It is not required that X’s act should indeed have succeeded in protecting or furthering Y’s
interests.

4.4.5. Obedience to Superior Orders

The question arising here is whether an otherwise unlawful act may be justified by the fact that the
person when committing the act was merely obeying the order of somebody else to whom she was
subordinate. This question arises mostly with reference to the conduct of subordinates in the
defence force and the police but is not limited to soldiers and policemen. It may also apply to, for
example, municipal police officers.

Note that there must be a legally acknowledged position of authority and that the subordinate is
obliged to obey lawful commands only. Therefore, a soldier, for example, cannot shoot at the
enemy just because he knows the person is the enemy. He must wait for lawful orders from his
officer to do so.

It is important to differentiate between lawful and unlawful orders. The circumstance of each case
will determine whether an order is lawful or unlawful.

• Lawful order: A subordinate is obliged to follow a manifestly lawful order. If an office bearer
commits an offence whilst following a lawful order, the act is justified, and he is not guilty of
the crime.

• Unlawful order: A subordinate may not follow a manifestly unlawful order. The person
committing an offence whilst following an unlawful order, acts outside the limits of authority

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 given to him/her and such a person is guilty of the offence. For example: an order to a
soldier standing guard to shoot anybody who sang out loud is manifestly unlawful.

Requirements for successfully relying on obedience to superior order

a. The order must emanate from a person lawfully placed in authority over X;
b. X must have been under a duty to obey the order;
c. The order must not be manifestly unlawful; and
d. Proportionality - X must have done no more harm that is necessary to carry out the order.

4.4.6. Official Capacity

An act which would otherwise be unlawful is justified if X is entitled to perform it by virtue of the
office she holds, provided it is performed in the execution of her duties. For this reason the clerk
whose duty it is to look after the exhibits in court cases is not guilty of the unlawful possession of
drugs which are exhibits in a court case; the official whose duty it is to confiscate liquor or a
dangerous weapon in terms of a court order does not commit malicious injury to property, and the
police official who searches an arrested or suspected criminal does not commit assault or crimen
iniuria.

This ground of justification is particularly important for persons who are authorised by statute to
perform specific acts because they hold a certain office, such as police officers, peace officers
and the Director of Public Prosecutions. Nobody except the official concerned may exercise the
authority.

An important example of an instance of official capacity serving as ground of justification is where

a police official assaults or even kills somebody in the course of arresting or attempting to arrest
such a person.

Another example, a police official may in terms of the CPA seize certain articles in possession of a
person if the police official is of the opinion that the articles are suspected to be intended to be
used, or are on reasonable grounds believed to be used in the commission of an offence. The
person from whom the articles are seized cannot claim back the article until the case has been
disposed of.

Note that for this to be a successful defence the authority has to be granted by statute and has to
be exercised reasonably and within limits.

4.5. DEFENCES EXCLUDING CRIMINAL CAPACITY

Criminal capacity means that, at the time of the commission of the offence, the alleged
perpetrator must have the capacity or ability to distinguish between right and wrong, and
to act accordingly.

Various factors are recognised in our criminal law, which make particular persons criminally
irresponsible. For our purposes, the most important defences related to criminal capacity is
youthfulness (a child below a certain age) and suffering from a mental illness (insanity) when the
crime was committed.

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4.5.1. Youthfulness
The youthful age of particular persons may make them criminally irresponsible. The age of a young
person or child may have an influence on criminal responsibility. A “child” for purposes of criminal
law is defined as someone under the age of eighteen. Criminal incapacity due to youthful age
may be raised as a defence against criminal liability.

In short, the Child Justice Amendment Act 28 of 2019, provides for three age-groups with diverging
effects on the presumption of criminal capacity and the procedures which must be followed in
respect to a child offender:

A. Children under the age of 12 years are irrebuttably presumed to lack criminal capacity and
cannot be arrested by a police official or prosecuted but must be referred to a probation
officer (social worker) for assessment and handed over to a parent, appropriate adult, or
guardian, or sent to a suitable youth care centre. The probation officer will assess the child
in terms of section 35 and formulate an appropriate plan for counselling, therapy or
rehabilitation in terms of section 9(3)(a), or where appropriate refer the child to a children’s
court.

B. Children aged 12 years or older but below 14 years are presumed to lack criminal capacity,
but the presumption may be rebutted by the State, i.e., a rebuttable presumption of criminal
incapacity. If this presumption can be rebutted, such child may incur criminal liability. To
rebut this presumption, the State must prove beyond reasonable doubt that the relevant
child had the capacity to appreciate the difference between right and wrong at the time of
the commission of an alleged offence and to act in accordance with that appreciation –
(section 11). The decision to prosecute such a child is dealt with in section 10 of the Act. In
deciding whether or not to prosecute a child who is 12 years or older but under the age of
14 years, a prosecutor must take the following into consideration: the educational level,
cognitive ability, domestic and environmental circumstances, age and maturity of the
child; the nature and seriousness of the alleged offence; the impact of the alleged offence
on any victim; the interests of the community; a probation officer’s assessment report; the
prospects of establishing criminal capacity.
A child over 12 years must be referred to a probation officer by a police official. The
probation officer prepares an assessment report and submits the report to a designated
prosecutor:
1. Where the child’s criminal capacity is unlikely to be proved beyond a reasonable
doubt in terms of section 11, the prosecutor must refer the child back to the
probation officer to be dealt with in terms of section 9(3)(a). Where no action is
contemplated the prosecution may withdraw the charge;
2. Where the child’s criminal capacity is likely to be proved beyond a reasonable
doubt, and/or where a more serious offence is involved the case should be referred
for investigation and a preliminary inquiry.

C. Older children who have completed their fourteenth year of life but is not yet eighteen years
of age, are, like adults, presumed to have criminal capacity but the presumption may be
rebutted. As in the case of adults, this presumption may be rebutted by the accused.

Because of their youthful age, children between 15 and 18 may, inter alia, lack life
experience, ability to make rational decisions, and the power to resist temptation. Therefore,
youthful age may give rise to diminished criminal responsibility. Due to this youthful age the
child may then be blamed less for his or her conduct and also be less heavily punished
(mitigation of punishment).

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 A child younger than 18 years may be considered for diversion at a preliminary inquiry. A
child who has not been diverted must be referred to a child justice court for plea and trial, or
referred to a children’s court unless the matter has been withdrawn. However, before the
conclusion of the case for the prosecution, a child justice court may consider diversion.

4.5.2. Mental illness or mental defect

“Mental illness is a disorder (or a disease) of the mind that is judged by experts to interfere
substantially with a person's ability to cope with the demands of life on a daily basis. It can
profoundly disrupt a person's thinking, feeling, moods and ability to relate to others. Mental illness is
manifested in behaviour that deviates notably from normal conduct. Mental illness in a legal
context is defined as a positive diagnosis of a mental health related illness in terms of accepted
diagnostic criteria made by a mental health practitioner authorised to make such diagnosis.”

Consequently, the defence of mental illness is limited to situations where the person suffered from a
pathological disturbance of his mental faculties. “Pathological” means “emanating from a
disease”. However, there is no exhaustive list of such pathological disturbances of mental faculties.
Therefore, the terms mental illness or mental defect do not relate to only certain known forms of
mental abnormality, to the exclusion of others.

Mental illness or intellectual disability may have two very important implications in the context of
criminal justice, which should, where applicable, be distinguished. An accused, by reason of
mental illness or intellectual disability, may (1) be incapable of understanding the criminal
proceedings so as to make a proper defence (s77)(this topic will be dealt with in the subsequent
module of criminal procedure), and (2) may or may not, also have lacked criminal responsibility at
the time of the commission or omission of the offence (s78). In either instance, court shall direct that
the matter be enquired into and be reported on in accordance with the provisions of section 79.
Below, we consider the defence of insanity in relation to the exclusion of criminal capacity as a
requirement for criminal liability.

The test to determine criminal capacity

If the accused suffered from mental illness or intellectual disability at the time of the commission or
omission of the offence, such incapacity can be raised as a defence against criminal liability and
may absolve the accused’s criminal responsibility.

If the defence of mental illness is raised, the test to determine X’s criminal responsibility set out in
section 78(1) of the Criminal Procedure Act must be applied. Section 78(1) reads as follows:
“A person who commits an act or makes an omission which constitutes an offence and who
at the time of such commission or omission suffers from a mental illness or intellectual
disability which makes him or her incapable–
(a) of appreciating the wrongfulness of his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or her act or
omission,
shall not be criminally responsible for such act.”

Such a mental illness or intellectual disability will generally fall under the exclusive knowledge of the
alleged offender (and his mental healthcare practitioner). It is, therefore, appropriate that the CPA
further provides for judicial presumption of sanity, which shifts the burden of proof.

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  Section 78(1A) of the CPA provides a judicial presumption that every person is mentally
competent and thus criminally responsible, until the contrary is proved on a balance of
probabilities.

 In order to shift the presumption of mental competence, the burden of proof is on the party
who raises the issue – section 78(1B). Thus, in raising the defence of criminal incapacity, as a
result of mental illness or mental defect, the burden to prove incapacity rests with the
defence.

In terms of s78(2) - If it is alleged or if it appears to the court at criminal proceedings that the
accused might, by reason of mental illness, not be criminally responsible for the offence charged,
the court must direct that the matter be enquired into and be reported on in accordance with the
provisions of s79.
Regarding the consequent verdict of the court, s78(6) provides that if the court finds that the
accused committed the act in question and that he or she at the time of such commission was by
reason of mental illness or intellectual disability not criminally responsible for such act, the court shall
find the accused not guilty and has a discretion to issue a number of possible directions, such as
that the accused be admitted to, detained in and treated in a psychiatric institutions.
However, if the court finds that the accused at the time of the commission of the act in question
was criminally responsible for the act but that his criminal capacity was diminished by reason of
mental illness or mental defect, the court may take the fact of such diminished responsibility into
account when sentencing the accused (mitigating factor) - s78(7).
When it appears to a court that due to a mental illness an accused person is incapable of
appreciating the wrongfulness of his or her actions (sec 78); then the court is obliged to refer that
person for observation. A panel of experts must be established to enquire and report on the mental
condition of that person (section 79).

Take note that an insane person may experience a so-called intervallum lucidum. This means that
an insane person may experience stages during which he is sane or mentally sound. Remember
that he will then not be able to make use of the defence of insanity and could be held criminally
liable if he complies with the other requirements for the crime.

4.6. DEFENCES EXCLUDING INTENTION

As mentioned, one can say that intention is to know and to will an unlawful act or a result. Intention
means that X must will (desire) the fulfilment (realisation) of the definitional elements, knowing that
his conduct is unlawful; or that he must foresee the possibility of his conduct fulfilling the definitional
elements and being unlawful but nevertheless proceed with it. He must therefore know or foresee
that the type of conduct in which he is engaging is criminally punishable, that it takes place in
circumstances in which it fulfills the definitional elements of the crime concerned, and that it is
unlawful (ie, unjustifiable). If he does not know or foresee it, his ignorance or mistake excludes
intention.

For purposes of intention, two sub-requirements have to be met, the cognitive (knowledge) and
the volitional (will). The cognitive element (ie, the knowledge which is required of X) can, for the
sake of convenience, be subdivided into two subsections, the first being knowledge of the
existence of the circumstances contained in the definitional elements of the crime, and the
second, knowledge of the unlawfulness of the act.

As a result, we have two types of error:

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  Factual error - these are the instances where a mistake or error is made about the facts as it
relates to either of the cognitive elements relating to knowledge. The mistake of knowledge
is of the facts, not of the law.

 Legal error (ignorance or mistake of law) - these are the instances where the knowledge of
unlawfulness is lacking because of a lack of awareness or knowledge that the type of
conduct constitutes a crime in terms of the law. In other words, the accused was mistaken
about the knowledge of law (the relevant legal provisions), not of facts.

It was also discussed that in a crime requiring intention, it is possible for the prosecution to prove the
perpetrator’s state of mind as typifying diverging gradations or degrees of intent. Each gradation
implies a more significant degree of the volitional component of intent, i.e., a greater degree of the
element of desire or will. However, even if a person did not act with the required degree of intent,
the person may still be blamed for an attitude of carelessness or thoughtlessness by giving
insufficient attention or thought to his conduct. This is referred to as negligence.

It is therefore, important to note that even if the defence that excludes intention is successful, the
alleged perpetrator may nevertheless be held responsible on the basis of negligence. The most
important defence that may exclude an accused’s intention, is the defence of error.

4.6.1. Factual Error

Factual error will only exclude intention if the error is honest and material.

For example, X hears a noise at his front door whilst he is at home. He has his firearm with him and
walks to the door and asks the person to identify himself. He receives no answer and again hears
the same noise, which sounds like somebody trying to forcefully open the door. He shoots in the
direction through the door. When he gets to the door and opens the door, he sees that he in fact
shot his dog that scratched at the door to be let in. He will not be able to be prosecuted for
murder, as one of the elements of murder is that a human being must be killed. The error is
concerned with an element of the crime and is therefore material. However, if we were to change
the set of facts in our example slightly, to the extent that X wants to murder his enemy Z and invites
Z to come and visit him because he plans to murder him during the visit. He hears a knock at the
door and, as he expects it to be Z, shoots through the door. When he reaches the door he sees that
in fact it was Y, his neighbour, who he had killed. This error is not material. X still caused the death of
a human being unlawfully and intentionally. Error, which is not material, has no effect on the
existence of intention and therefore he is still guilty of the murder.

Our criminal law distinguishes between the following factual errors:

 Error in persona - this would be an instance such as in our example above where X intends to
shoot Z, but shoots Y instead. Error regarding the person.

 Error regarding the object - this would be an instance where a person has the will to
knowingly commit an unlawful act with regard to a particular object and, after he has
committed the act, discovers that he committed the act with regard to another object.

 Error regarding the causal course of events - this would be an instance where a person wants
to bring about a specific consequence but the consequence sets in, in a different manner or
at a different time than he planned it would. Normally such an error is not material and, as
such, does not exclude intention.

 Error regarding the medium or the instrument - this is an instance where a person wants to
commit an act with a specific instrument or medium and it appears afterwards that he
committed the act with another instrument.

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4.6.2. Legal Error
This is an instance where a person who commits a crime or cause a consequence but does not
know that the act or consequence is unlawful. In this instance, the knowledge of unlawfulness is
absent. Thus “ignorance of the law” is an excuse!

You know that the test for intention is subjective and thus the error need not be objectively
reasonable. In practice the courts will not easily accept the absence of knowledge of unlawfulness
and will test whether the person’s belief is totally unreasonable. For example, Z is prosecuted for
possession of an unlicensed firearm. He is a security guard and received extensive training in the
use of firearms. If Z were to tell the court that he was not aware that one had to be in possession of
a license for a firearm, it would be reasonable of the court to reject this defence as one would
expect a trained security guard to know that it is illegal to be in possession of an unlicensed firearm.

The courts will believe a person more easily in respect of legal errors where a statutory crime is
involved than in the instances where common law crimes such as murder, theft or fraud are
involved. The courts, however, will expect persons who follow a certain profession to be informed of
legislation applicable to their profession. For example, it is expected from restaurant owners to be
informed of health legislation applicable to their business. A restaurant owner will not be able to
raise a defence that he does not know about the health regulations applicable to restaurants.

Snyman argues that:

• Legal error should operate as a defence which excludes intention only if the ignorance or
mistake is reasonable.
• If X could and should have known the law, he ought not to be allowed to succeed with a
plea of ignorance, for his ignorance would then be unreasonable.
• I.e. X’s ignorance should not stem from negligence to acquaint himself with the contents of
the law.

4.7. DEFENCES EXCLUDING VARIOUS POSSIBLE ELEMENTS OR MULTIPLE

ELEMENTS OF CRIMINAL LIABILITY

The following defences may exclude one or more requirement for criminal liability depending on
the circumstances of the case.

4.7.1. Intoxication (Drunkenness or drug-use)

It is well known that the consumption of alcohol may detrimentally affect a person’s capacity to
control his muscular movements, to appreciate the nature and consequences of his conduct, as
well as its wrongfulness, to conduct himself in accordance with his appreciation of the wrongfulness
of the conduct, or to resist the temptation to do wrong. It may induce conditions such as
impulsiveness, diminished self-criticism, over-estimation of one’s own abilities and underestimation
of dangers. It may also result in a person’s being unaware of circumstances or consequences of
which he would have been aware had he been sober. What is the effect, if any, of intoxication on
criminal liability?

Intoxication may play a role in various elements of a crime, namely the act, criminal capacity and
culpability – and, more particularly, intention.

What is said here about intoxication resulting from the consumption of alcohol or liquor applies
equally to intoxication resulting from the use of drugs.
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It is necessary first to distinguish between voluntary and involuntary intoxication as this has an
important impact on criminal liability:

Involuntary Intoxication
By “involuntary intoxication” is meant intoxication brought about without X’s conscious and free
intervention. For example, Y, who wants to play a trick on X, secretly puts a sedative into his coffee
or forces X to swallow liquor, as a result of which he becomes intoxicated.

Involuntary intoxication may also include the situation where Y forces X to swallow something
against his will, as a result of which X becomes intoxicated. Involuntary intoxication is a complete
defence on a charge of a crime committed during the intoxication. The reason for this is that X
could not have prevented it, and therefore cannot be blamed for it.

Voluntary Intoxication:
As far as voluntary intoxication is concerned, three different situations have to be clearly
distinguished, namely the actio libera in causa, intoxication resulting in mental illness, and the
remaining instances of voluntary intoxication.

i. Actio libera in causa relates to the partake of alcohol with the exclusive purpose of gaining
courage to commit a crime. This is the situation where X intends to commit a crime but does
not have the courage to do so and takes to drink in order to gain the necessary courage,
knowing that he will be able to perpetrate the crime once he is intoxicated. In this instance
intoxication is no defence whatsoever. It is not even a ground for mitigation of punishment; in
fact it would be a ground for imposing a heavier sentence than the normal. X forms the
intention to commit the crime when he is still sober, and he uses his inebriated body as an
instrument for the purpose of committing the crime. This factual situation, which is difficult to
prove, is known as actio libera in causa.

ii. Intoxication resulting in mental illness - continual or chronic consumption of alcohol may
result in a condition known as delirium tremens, which is acknowledged to be a form of
mental illness. Here the ordinary rules relating to mental illness as set out above applies. In
other words, X is found not guilty because of mental illness, but the court issues the order
which it must make if it had found that at the time of the act X suffered from a mental illness.
One of the possible orders which the court may make is that X be detained and treated in a
psychiatric hospital

The two cases of voluntary intoxication discussed above as well as the cases of involuntary
intoxication are seldom encountered in practice, and the rules applicable to them, as set out
above, are generally undisputed.

Practically all the cases in which intoxication comes into the picture in the daily practice of our
courts fall in the next category to be discussed, namely voluntary intoxication not giving rise to
mental illness and where X did not partake of alcohol with the exclusive purpose of gaining
courage to commit a crime. The controversy surrounding the role of intoxication in criminal law
relates primarily to these cases. It is these cases that come before our courts daily in such large
numbers.

For example, X has a couple of drinks at a social gathering and then behaves differently from the
way he would if he had not taken any liquor: he too readily takes exception to a remark made by Y
and then assaults him, or grabs a knife and stabs him, or damages property.

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Initially, in our common law, the rule was that voluntary intoxication could never be a defence to a
criminal charge, but, as a type of concession to human weakness, could at most amount to a
ground for the mitigation of punishment. However, with the appellate decision in 1981 in S v
Chretien the situation was changed.

S v Chretien 1981 1 SA 1097 (A)

X attended a party at which he consumed a large quantity of liquor. Late that night he
got into his motor car and drove off. Other people who had also attended the party were
standing in his way in the street. X drove in amongst them. One person was killed and five
injured. X was charged with murder in respect of the one who was killed and with
attempted murder in respect of the five injured persons. The court found that because of
his consumption of alcohol, X had expected that the people in the street would see his
motor car approaching and would move out of the way, and that therefore he had no
intention of driving into them. On the charge of murder, he was convicted of culpable
homicide. He could not be found guilty on any of the charges of attempted murder
because of the finding that he lacked the intention to kill. The question arose, however,
whether he should be found guilty of at least common assault on these five charges of
attempted murder. The appellate division held that, since in his drunken state he was
under the impression that the people in the street would move out of his way, he had not
had the intention to commit assault, and that he could therefore not be convicted of
assault.

The legal points decided by the appellate division can be summarised as follows:
 If a person is so drunk that his muscular movements are involuntary, there can be no
question of any act on his part, and although the condition in which he finds himself
can be attributed to intoxication, he cannot, on the strength of the muscular
movements, be found guilty of any crime.

 In exceptional cases a person may, because of the excessive consumption of

liquor, completely lack criminal capacity and as a result not be criminally liable at
all. This will be the case if he is so intoxicated that he is no longer aware that what
he is doing is wrong, or that his inhibitions have substantially disintegrated.

 Intoxication may exclude intent. It is precisely as a result hereof that X’s intoxication
in this case was held to be a complete defence even to common assault.

 A court should not lightly infer that because of intoxication X had acted involuntarily
or was not criminally responsible or that the required intention.

Therefore, immediately after the decision in Chretien, intoxication could have one of the
following four effects:
o In extreme cases it might result in X not performing an act in the legal sense of the
word (in other words a voluntary act). He is then not guilty of any crime.

o If, despite the intoxication, X could nevertheless perform a voluntary act, the
intoxication might result in X lacking criminal capacity. He is then similarly found not
guilty.

o If, despite the intoxication, X could nevertheless perform a voluntary act and also had
criminal capacity, the intoxication might result in his lacking the intention required for
the crime with which he is charged. In such a case he would not necessarily always
escape conviction: the evidence might reveal that he was negligent, in which case

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 he might be convicted of a less serious crime requiring culpability in the form of
negligence.

o If the intoxication did not have any of the above three effects, X must be convicted,
but the extent of his intoxication may serve as a ground for the mitigation of
punishment.

Response to Chretien – Statutory intoxication

The practical result of the judgment in Chretien, namely that intoxication could in certain
circumstances be a complete defence, has been criticised in various quarters, one of the
arguments being that society would never accept a situation where a sober person is punished for
criminal conduct, whereas the same conduct committed by a drunken person is pardoned merely
because he was drunk.

It would mean that drunken people are treated more leniently than sober people. It was argued
that the legislature ought to enact a provision to the effect that a person commits a crime if he
voluntarily becomes intoxicated and while intoxicated commits an act which would have been a
crime but for the rules relating to intoxication laid down in Chretien. In section 1 of the Criminal Law
Amendment Act 1 of 1988 the legislature created such a crime.

Section 1 of the Criminal Law Amendment Act 1 of 1988 reads as follows:

“1(1) Any person who consumes or uses any substance which impairs his or her faculties to appreciate
the wrongfulness of his or her acts or to act in accordance with that appreciation, while knowing that
such substance has that effect, and who while such faculties are thus impaired commits any act
prohibited by law under any penalty, but is not criminally liable because his or her faculties were
impaired as aforesaid, shall be guilty of an offence and shall be liable on conviction to the penalty which
may be imposed in respect of the commission of that act.

(2) If in any prosecution for any offence it is found that the accused is not criminally liable for the offence
charged on account of the fact that his faculties referred to in subsection (1) were impaired by the
consumption or use of any substance, such accused may be found guilty of a contravention of
subsection (1), if the evidence proves the commission of such contravention.”

Somebody who voluntarily starts to drink ought not to have a ground for complaining if in his
intoxicated state he commits a wrongful act for which the law calls him to account.

Sec 1 of the Criminal Law Amendment Act 1 of 1988 provides for a separate, substantive crime - If
the requirements of the section have been complied with, X is not convicted of the “main crime”
which his conduct would seem to indicate or point at (such as assault or injury to property); in fact,
if he has been charged with such a “main crime” he must be found not guilty of having committed
that crime - the crime which he has committed is not the assault or injury to property, but the crime
of “contravening section 1(1) of Act 1 of 1988”.

Summary of present law:

As far as the effect of voluntary intoxication on criminal liability is concerned, the legal position at
present may be summarized as follows:

FACTS LEGAL CONSEQUENCES

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(1) X intentionally drinks heavily in order to
give himself courage to commit his The intoxication offers X no defence.
intended crime.

(2) X becomes intoxicated involuntarily. The intoxication offers X a complete defence.

(3) X is so intoxicated that he is incapable

of committing a voluntary act – in In terms of Chretien, X is not guilty of the crime with
other words, his conduct takes place which he is charged. He must, however, be
while he is in a state of automatism convicted of contravening section 1 of Act 1 of 1988
resulting from intoxication

In terms of Chretien, X is not guilty of the crime with

(4) X is so intoxicated that he lacks
which he is charged. He must, however, be
criminal capacity
convicted of contravening section 1 of Act 1 of 1988

In terms of Chretien, X is not guilty of the crime with

which he is charged. Neither can he be convicted
(5) X is so intoxicated that, although he of contravening section 1 of Act 1 of 1988. However,
has criminal capacity, he lacks the if X is charged with murder, he may, on the ground
intention required for a conviction of negligence, be found guilty of culpable homicide
(which is always a tacit alternative charge to a
charge of murder)

(6) On a charge of committing a crime

requiring negligence (such as Intoxication does not exclude X’s negligence; on
culpable homicide) the evidence the contrary, it serves as a ground for a finding that
reveals that X was intoxicated while X was negligent
engaging in the conduct

X is guilty of the crime with which he is charged, but

the measure of intoxication may serve as a ground
(7) Despite his consumption of liquor, X
for the mitigation of punishment. In exceptional
complies with all the requirements for
cases the intoxication may, in terms of section 2 of
liability, including intention
Act 1 of 1988, serve as a ground for increasing the
punishment

4.7.2. Provocation
Provocation implies that the accused’s conduct was immediately preceded by insulting or
provocative behaviour on the part of the victim, which induced the accused’s consequent actions.
In other words, the words or deeds, or a combination of both, of the victim induced fury, jealousy,
hatred, anxiety in the accused, with the result that he did something that he should not have done
and under normal circumstances would not have done (i.e., committed a crime in the spur of the
moment).

For example, Y so grossly insults X that X, due to this provocation, loses his cool and slaps Y, which
constitutes the crime of assault. The question to be discussed here is whether and to what extent X
can rely on his anger as a defence on a charge of committing a crime while he was thus enraged.
The legal convictions of society do not recognise any right on X’s part to assault or kill Y merely
because Y had provoked him, and therefore provocation is no ground of justification excluding the
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unlawfulness of X’s retaliatory conduct. Provocation may, however, influence X’s subjective state of
mind and therefore X’s culpability.

In order to answer this question, one has to refer to the case of S v Eadie 2002 (3) SA 719 (SCA). This
was an instance of road rage where the accused beat to death the deceased with a hockey stick
in a road rage incident. The accused’s defence was that due to the extreme provocation and
extreme emotional stress he was subjected to, he lacked criminal responsibility. The court rejected
his defence of lack of criminal responsibility, and to understand this, is quite difficult.

To put it in the simplest of terms: For anyone to be held criminally liable, one must act. There must
therefore be criminally relevant conduct. Conduct (or the act) is only criminally relevant to lead to
criminal liability if it is a voluntary and will controlled human act or conduct. So, if one says (your
defence is) that your act was not a voluntary and will controlled human act or conduct, you do not
act for purposes of criminal liability, and therefore you are not criminally liable. This defence is
called automatism. So, in the light of the Eadie-judgement, provocation and extreme emotional
stress does not exclude criminal capacity as a defence, but it could be a defence excluding
criminal conduct, for the moment you say “I lost my self-control”, you are saying “my conduct was
not voluntary or will controlled”. You therefore did not act in the criminally relevant sense and can
therefore not be held criminally liable.

According to Snyman, the effect of provocation in our law can be summarized as follows:

o “It may operate as a ground for the mitigation of punishment

o It may reduce murder to culpable homicide (i.e. influence culpability)

o It may reduce qualified assault to ordinary assault

o Where the provocation is extreme, it may result in X acting involuntarily, leading to a complete
acquittal. Where the provocation is very strong, there is at least a theoretical possibility that the
court may find that X lacked the ability to subject his bodily movements to his will or intellect
and that he, therefore, acted involuntarily, that is, in a mechanical fashion, when he launched
his attack upon Y. Since no person can be convicted for acts which he committed
involuntarily, X would have to be found not guilty of any crime. This possibility was expressly
mentioned in Eadie. (i.e. excluding voluntary nature of conduct)

o It may serve to confirm the existence of intention”

There is therefore a close relationship between provocation and automatism. Provocation can
exclude culpability or the voluntary nature of the act. However, lack of criminal responsibility is still a
defence if it is due to intoxication, fear or shock.

Activity– Practical exercises

Analyse the following situations. Determine if there are any factors present that may influence
criminal liabilty and substantiate your explanation:

o Sujata is an epilepsy sufferer. She was alone at home and felt that she was going to have an
epileptic attack. She took her husband’s car and drove to a friend in order to ensure that
there would be someone present should she have an attack. On the way to her friend, whilst
still driving, she had an epileptic fit and killed a pedestrian.

o David went to a party and got drunk. It was the first time that he overindulged himself.
When he got back home his girlfriend was angry and shouted at him. Before he knew what
was happening, he hit her, she fell down the stairs and was fatally injured.

o Mpho tells her boyfriend (Thabo) that his friend Patrick sexually harassed her. He went to
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 Patrick, they started fighting and Patrick was seriously hurt. It turned out that Mpho, who
disliked Patrick, incited Thabo in order to end the friendship and that Patrick never harassed
Mpho.

*****
4.8. ASSESSMENT CRITERIA

If you have completed all the activities in this Unit and you are able to answer the following
questions, you should be able to:
o Advise a member of the community, or whilst assessing a matter, identify whether his act
qualifies as a ground of justification.
o Advise a member of the community, or whilst assessing a matter, identify what the factors
are that may influence criminal responsibility.
o Identify in a set of facts given to you by a member of the community whether there are any
factors that may influence criminal responsibility.
o Advise a member of the community what the difference is between factual and legal error
as a ground for excluding intention.
o Advise a member of the community, or whilst assessing a matter, about instances in which
guilt is not a requirement for the crime to be committed.

4.9. SELF-EVALUATION QUESTIONS

Complete the following self-evaluation questions:

1. Define “automatism”.
2. Which element will be excluded by “automatism”?
3. Define “grounds of justification”.
4. List five acknowledged grounds of justification.
5. Discuss the requirements for the attack in respect of self-defence.
6. Discuss necessity as a ground of justification.
7. Discuss intoxication as a factor that may influence criminal responsibility.
8. Give an example where provocation could be a defence.
9. List and discuss the various types of error our criminal law acknowledges.

LEARNING UNIT 5: DEFINITIONAL ELEMENTS OF SPECIFIC CRIMES

5.1. INTRODUCTION

We have to measure a person’s conduct against the requirements for criminal liability to determine
whether he has committed a crime. These requirements consist of compliance with the definitional
elements of a crime; act; unlawfulness; culpability as well as the requirements of legality and
criminal capacity.

It is a requirement for criminal liability is that X’s conduct must comply with the definitional elements
of the crime in question.

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The definitional elements contain not merely a description of the type of conduct proscribed but
may also contain a description of the way in which the act must be performed, the person
performing the act, the person or object in respect of which the act must be performed, the place
where the act must take place, a particular time during which the act must take place, and so
forth. Every particular crime has requirements which other crimes do not have. The requirement for
liability with which we are dealing here is simply that X’s conduct must comply with these
definitional elements.

In this unit of your studies, you will learn the definitions of some of the crimes in a certain category.
As a paralegal, you will have to assist members of the public to understand which crime they are
charged with. Many members of the public can only describe to you what they did and will be
unable to name the crime they are charged with.

It is vital that you know the definitions of the crimes as you will then also be able to assist the
members by informing them of what the elements of the crime are and possibly also assist by
determining whether the accused has a defence or whether the state will succeed in proving the
guilt of the accused beyond reasonable doubt.

Modern society is heavily regulated and there are many crimes in existence. There are many
common law crimes and an increasing number of statutory crimes in South Africa. Due to the
nature of this course, it is only possible to discuss a limited number of crimes. We will only look at a
crimes that are the most encountered crimes in practice. It will however be necessary for you to do
additional research on those crimes not discussed herein should you encounter them in practice.

An excellent source to consider is Snyman’s Criminal Law Juta.

5.1.1. Categories/grouping of crimes

Crimes are classified or grouped according to the infringed legal interest protected by the law. The
grouping of categorisation of crimes into different groups is not an exact science but is intended to
facilitate the studying and understanding of crimes. There are other ways of grouping crimes and to
some extent the grouping of crimes is only relevant for purposes of identifying the commonly
infringed interest. For this reason, the grouping of crimes is mostly irrelevant in answering a question
from this learning unit. Therefore, the categorisation/grouping of crimes under certain headings is
merely a tool to differentiate between crimes based on their respective effects on protected
interests in society. When studying this learning unit, focus on the crime itself and not on the heading
in terms of which it is categorised/grouped.

Groupings of crimes Relevant crimes:

Crimes against life Murder

Culpable Homicide

Rape and sexual offences

Crimes against bodily integrity Assault
Pointing of a firearm

Crimen Iniuria
Crimes against dignity and reputation
Criminal defamation

Crimes against freedom of movement and Kidnapping

parental control Abduction

Crimes against private property Theft

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 Robbery
Fraud and related crimes
Malicious injury to property
Arson
Housebreaking with intent to commit a crime

High Treason
Crimes against the State
Public Violence

Perjury
Crimes against the Administration of Justice Contempt of Court
Defeating and Obstructing the Ends of Justice

Corruption
Extortion
Crimes against honest administration
Drug offences
Unlawful possession of firearms or ammunition

5.2. CRIMES AGAINST LIFE AND POTENTIAL LIFE

Murder
Murder is defined as the unlawful and intentional causing of the death of another human being.

The elements: (a) causing the death (b) of another person (c) unlawfully and (d) intentionally

(a) causing the death

Since the death of a person must be caused, murder can be committed in various different ways. It
is irrelevant what method is used in causing the death, as long as a person is killed as a result of the
method.

(b) another person

It is also a requirement that another person must be killed. Someone who tried to commit suicide
cannot therefore be charged with murder.

The human being killed must have been a live human being. To “kill” an unborn foetus and
separate it from the mother’s body is treated in our law as abortion, not murder. Various tests may
be used to ascertain whether a child was born alive, such as to ascertain whether the child
breathed, whether it had an independent blood circulation, or whether it had been completely
expelled from the mother’s body. Section 239(1) of the CPA lays down that a child is deemed to
have been born alive if it is proved that it breathed, whether it had an independent circulation or
not, and that it is not necessary to prove that the child was at the time of its death entirely
separated from its mother’s body. There is, therefore, a presumption of live birth if a child has
breathed.

(c) unlawfully

The killing must be unlawful. Certain grounds of justification such as private defence which includes
self-defence), necessity, official capacity or obedience to orders, may justify an otherwise unlawful
killing. These grounds of justification have already been discussed in detail above. It is sufficient to
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reiterate here that consent to the killing by the deceased does not exclude the unlawfulness of the
killing.1 Neither is euthanasia a ground of justification.

(d) intentionally

The form of culpability that is required for murder is intention.

Minimum sentences for murder

Section 51 of the Criminal Law Amendment Act 105 of 1997 provides for certain mandatory
minimum periods of imprisonment to be imposed by a court upon convicting X of murder. In the
following circumstances a court is now bound, in terms of section 51, to sentence a person found
guilty of murder to imprisonment for life:
i. if the murder was planned or premeditated
ii. if Y was a law enforcement officer (such as a member of the police) who was murdered
while performing his or her function as a law enforcement officer
iii. if Y was somebody who had given evidence (or was likely to give evidence) in a trial in
which somebody had been accused of a serious offence (in actual fact, the Act speaks of
an offence referred to in schedule 1 of the Criminal Procedure Act; this schedule contains a
list of offences which may be described as serious)
iv. if X committed the murder in the course of committing rape
v. if X committed the murder in the course of committing robbery with aggravating
circumstances
vi. if the murder was committed by a group of persons acting in the execution of a common
purpose

If none of the circumstances set out immediately above is present, X does not qualify for
mandatory imprisonment for life. However, section 51 referred to above provides that, in such a
situation, a court is then nevertheless obliged to impose the following minimum periods of
imprisonment:
i. 15 years in respect of a first offender
ii. 20 years in respect of a second offender
iii. 25 years in respect of a third or subsequent offender

Culpable Homicide
Culpable homicide is defined as the unlawful, negligent causing of the death of a human being.

The elements: (a) causing the death (b) of another person (c) unlawfully and (d) negligently.

From the above it is clear that, with few exceptions the elements of culpable homicide is similar to
that of murder. It is however important to note that the form of culpability required for this crime is
negligence and not intention. The test for negligence is, in principle, objective.

Test for negligence

1. Would a reasonable person have actually foreseen the unlawful act or consequence?

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 2. Would the reasonable person have taken the necessary positive action to prevent the
unlawful act or consequence?

3. Did the accused’s conduct in the circumstances differ from the conduct expected of the
reasonable person?

Examples of culpable homicide:

 Where a person drives a vehicle in a negligent manner and in so doing causes an accident
which causes the death of his passenger.

 Where a nurse gives a blood transfusion to a patient with the incorrect blood group and
causes the death of the patient.

 Where a doctor prescribes incorrect medication to a patient and the patient dies after the
intake of such medicine.

5.3. CRIMES AGAINST BODILY INTEGRITY

Rape and sexual offences

The description of ‘rape’ comes from the common law. However, this understanding of ‘rape’ has
undergone significant changes since the new constitutional dispensation in South Africa. It is
important to briefly reflect on these changes.

Common law rape: Rape in terms of the common law was defined as the unlawful and
intentional sexual penetration of the female genital organ (the vagina) by the male genital
organ (the penis) without the female’s consent.

In the case of Masiya v Director of Public Prosecutions and another (2007), the Constitutional Court
declared that the common law definition is unconstitutional and unsatisfactory as to the specific
acts which constitute rape as well as the gender of the perpetrator and victim. The situation was
thereafter rectified by the legislator.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 was
introduced because of the prevalence of sexual offences in the Republic of South Africa. It was felt
that the South African law did not deal adequately and effectively with many aspects relating to
the commission of sexual offences in a non-discriminatory manner. The Act amended all aspects of
the laws relating to sexual offences and deals with all legal aspects relating to sexual offences in a
single statute by, inter alia,

• repealing the common law offence of rape and replacing it with a new, expanded statutory
offence of rape applicable to all forms of sexual penetration without consent, irrespective of
gender,
• ‘‘sexual penetration’’ is broadly defined to include various acts of a sexual nature which were
previously not criminalised,
• repealing the common law offence of indecent assault and replacing it with a new statutory
offence of sexual assault, applicable to all forms of sexual violation without consent,
• creating new statutory offences relating to certain compelled acts of penetration or violation,
• creating new statutory offences for adults, by criminalising the compelling or causing the
witnessing of certain sexual conduct and of certain parts of the human anatomy, the exposure
or display of child pornography, and the engaging of the sexual services of an adult
• repealing the common law offences of incest, bestiality and the violation of a corpse, as far as
such violation is of a sexual nature, and enacting corresponding new statutory offences

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 • creating new, comprehensive sexual offences against children and persons who are mentally
disabled, including offences relating to sexual exploitation or grooming, exposure to or display
of pornography, and the creation of
• child pornography (Some of these offences are similar to offences created in respect of adults.
However, these offences aim to address the particular vulnerability to sexual abuse and
exploitation of children and persons who are mentally disabled.)

Statutory definition of rape

Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
provides that “any person who unlawfully and intentionally commits an act of sexual penetration
with another person without the latter’s consent, is guilty of the offence of rape.”

The elements: (a) sexual penetration of another person; (b) without the consent of the latter
person; (c) unlawfulness; and (d) intention.

(a) sexual penetration of another person

The act of sexual penetration is defined in section 1, and includes any act which causes
penetration to any extent whatsoever by –
(a) the genital organs of one person into or beyond the genital organs, anus, or mouth of
another person;
(b) any other part of the body of one person or, any object, including any part of the body of
an animal, into or beyond the genital organs or anus of another person;
(c) the genital organs of an animal, into or beyond the mouth of another person, and
“sexually penetrates” has a corresponding meaning.

(b) without the consent of the latter person

The word “consent” as used in the definition of the crime is defined in section 1 as “voluntary or
uncoerced agreement”. Section 1 contains a long and important provision dealing with the
interpretation of the words “voluntary or uncoerced consent”.

It may be summarised as follows: For consent to succeed as a defence, it must have been given
consciously and voluntarily, either expressly or tacitly, by a person who has the mental ability to
understand what he or she is consenting to, and the consent must be based on a true knowledge of
the material facts relating to the act. Where, in order to establish the absence of consent, reliance is
placed upon the woman’s intoxication or her mental defect, or the fact that she was sleeping or
was defrauded, it must be established that X was aware of such a factor vitiating consent.

(c) unlawfulness
As seen above the definition of this crime excludes consent as a ground of justification.
Unlawfulness may however be excluded by the ground of justification known as official capacity.
This will be the case if, for example, X is a medical doctor who treats Y for some ailment connected
with Y’s genital organs, and who in the course of the examination inserts his or her finger or some
object into Y’s vagina or anus: or who performs these actions in respect of female Y very shortly
after Y had lodged a complaint of having been raped, in order to ascertain whether, for example,
there has been any injury to her vagina.

(d) intention
Intention to have sexual intercourse with a person, while the perpetrator knows that the person
does not consent, is required. Only lack of consent and not force is required. Dolus eventualis
suffices, so that it is sufficient to prove that X foresaw the possibility that Y’s free and conscious

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consent, as described above, might be lacking, but nevertheless continued to have sexual
penetration. Where, as proof of the absence of consent, reliance is placed on the fact that the girl
is under 12 years of age at the time of the commission of the act, X must be aware of the fact that
the girl is not yet 12 years old, or at least foresee the possibility that she may be under 12.

Sentence: As a reaction to the high crime level, section 51 of the Criminal Law Amendment Act 105
of 1997 was enacted. This makes provision for minimum sentences to be imposed for certain crimes,
such as rape, in certain circumstances. It is clear from section 68(2) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, read with the schedule to this Act, that the
provisions of section 51 of Act 105 of 1997 apply also to the newly defined statutory crime.

Minimum sentence for rape

Imprisonment for life must sometimes be imposed. Section 51(1) of the above-mentioned Act
provides that a High Court or a regional court must sentence a person convicted of rape to
imprisonment for life in the following circumstances:
i. where Y was raped more than once by X or by any co-perpetrator or accomplice
ii. where Y was raped by more than one person and such persons acted with a common
purpose
iii. where X is convicted of two or more offences of rape, but has not yet been sentenced
iv. where X knows that he has acquired the ‘‘immune deficiency syndrome or the human
immunodeficiency virus’’
v. where Y is below the age of 16 years
vi. where Y is a physically disabled woman who, owing to her physical disability, is rendered
particularly vulnerable where Y is mentally ill as contemplated in section 1 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act of 2007
vii. where the rape involved the infliction of grievous bodily harm.

Other minimum periods of imprisonment must sometimes be imposed. If one of the circumstances
set out immediately above is not present, X does not qualify for mandatory imprisonment for life.
However, section 51(2) provides that, in such a situation, a High Court or regional court is
nevertheless obliged to impose the following minimum periods of imprisonment:
i. 10 years in respect of a first offender
ii. 15 years in respect of a second offence
iii. 20 years in respect of a third or subsequent offence

Avoidance of minimum sentences. There are always cases where a court is of the opinion that the
imposition of one of the above minimum periods of imprisonment would, considering the specific
circumstances of the case, be very harsh and unjust. In terms of subsection (3)(a) of section 51, a
court is not bound to impose imprisonment for life or for one of the minimum periods of
imprisonment set out above if there are substantial and compelling circumstances which justify the
imposition of a lesser sentence than the prescribed one.

Compelled rape

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Section 4 of the Act provides that any person (“A”) who unlawfully and intentionally compels a third
person (“C”), without the consent of C, to commit an act of sexual penetration with a complainant
(“B”), without the consent of B, is guilty of the offence of compelled rape.

Should a victim of rape come to you for assistance, it is important to refer him or her to the nearest
police station immediately. Advise the victim to report the matter and explain that they will be
given a J88 form and that he or she will be sent to the district surgeon for an examination.

Sexual crimes (offences)

The Sexual Offences Amendment Act (SOAA) protects any person who has experienced rape,
sexual assault, sexual grooming, incest, child pornography or prostitution. Anyone (women, men,
children, babies), irrespective of gender can be a victim of rape and it is not their fault that it
happened.

• Rape - occurs when a person forces another to have sexual intercourse without their consent.
This is a crime and must be reported. The SOAA also makes it a crime for a person to force
another person to rape someone. This is known as compelled rape.

• Sexual assault - occurs when a person sexually violates another person without their consent.
This is a crime and must be reported. The SOAA also makes it a crime for a person to force
another person to witness and or perform sexual acts to someone. This is known as compelled
sexual assault.

• Sexual grooming - occurs when a person educates/introduces or prepares a child to

perform/witness any sexual act or became sexually ready. A child is usually unaware that the
person is grooming him/her for sexual acts because this person is often nice to the child. In most
instances, after realising the motive of the person, the child is usually scared to speak or report
this because the incident could have been taking place over a long period of time. This is a
crime and must be reported. The same may also occur with persons living with mentally
disabled persons.

• Incest - occurs when people who are related and are not allowed to marry each other engage
in a sexual act with each other even though they both agreed to do so. It is illegal and should
be reported.

• Bestiality - sexual intercourse between a person and an animal.

• Child pornography - occurs when a person or company uses a child for a reward or money for
the purpose of publishing pornographic material.

• Child prostitution- occurs when a person uses a child or any person living with mental disabilities
to expose or display to prostitution or engaging him/her in sexual acts for a reward.

• Sex trafficking - The Act also provides that a person who traffics in any person (Y) for sexual
purposes without that person’s consent is guilty of the offence of trafficking in persons for sexual
purposes (s 71(1)). The mere encouraging, incitement, instigation and other preparatory actions
amount to the offence of involvement in trafficking in persons for sexual purposes (s 71(2)).

For a more detailed discussion regarding rape and sexual offences under the Sexual Offences Act,
see: https://shukumisa.org.za/wp-content/uploads/2017/09/A-summary-of-the-Criminal-Law-Sexual-
Offences-Amendment-Act-CALS-and-TLAC.pdf.

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Assault
Assault consists in any unlawful and intentional act or omission
(a) which results in another person’s bodily integrity being directly or indirectly impaired, or
(b) which inspires a belief in another person that such impairment of her bodily integrity is
immediately to take place.

The elements: (a) conduct which results in another person’s bodily integrity being impaired (or the
inspiring of a belief in another person that such impairment will take place); (b) unlawfulness and
(c) intention.

(a) conduct which results in another person’s bodily integrity being impaired (or the inspiring of a
belief in another person that such impairment will take place)

May consist of the direct or indirect application of force or threats of force. Where the act consists
of a threat, it must be a threat of immediate violence. You cannot threaten a person that you will
assault him in the future and be charged with assault.

(b) unlawfulness

Most of the grounds of justification you learnt come into play here. The use of force can be lawful
where one of the grounds of justification is present.

(c) intention

Intention in any of its three forms must be present. In practice, certain forms of assault have been
described and require a specific intent. They include assault with the intent to cause grievous
bodily harm and indecent assault.

See also assault with intent to do grievous bodily harm in Snyman Criminal law 453-454, and assault
with intent to commit another crime in Snyman Criminal law 454.

Pointing of a firearm
The crime “pointing of a firearm” may overlap with the crime of assault in the form of the inspiring of
fear of immediate personal violence, which is an infringement of the victim’s bodily integrity.

Section 120(6) of the Firearms Control Act 60 of 2000 provides that it is an offence to point:
a. any firearm, an antique firearm or an airgun, whether or not it is loaded or capable of being
discharged, at any other person, without good reason to do so; or
b. anything which is likely to lead a person to believe that it is a firearm, an antique firearm or
an airgun at any other person, without good reason to do so.

The elements of the crime are the following: (a) the pointing of (b) a firearm or other specified
article (c) at any person (d ) unlawfully and (e) intentionally.

5.4. CRIMES AGAINST DIGNITY AND REPUTATION

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Crimen Iniuria
Crimen iniuria is defined as the unlawful and intentional serious infringement of the dignity or
privacy of another person.

The elements:

The act - A person’s dignity and privacy include all the interests which are protected by his rights of
personality apart from his good name and physical integrity. The rights of personality covered by
the term “dignity” include one’s sense of chastity, self-respect, feelings of piety, and in general
one’s inner peace or mental tranquillity.

The act must be a serious infringement of a person’s dignity or privacy before it will constitute a
crime. A person is expected to endure minor or trivial insults to his dignity.

To establish whether a person’s dignity has been infringed upon, the following test is applied:

o The reaction of the victim must be established - was the victim shocked or upset?

o Then one would ask whether a reasonable man also would have regarded the conduct of
the perpetrator as an infringement of his dignity.

Examples of acts are:

 The exposure of private parts to another - known as “flashing”
 The infringing of another’s privacy by peeping at them whilst they are undressing
 The insulting of a person
 The making of immoral proposals and declarations of love containing suggestions of sexual
immorality or indecency

Intention - The perpetrator must at least foresee that his conduct may result in an infringement of
another’s dignity or privacy and still proceed.

Criminal defamation
Criminal defamation consists in the unlawful and intentional publication of matter concerning
another which tends to injure his reputation.

The elements of this crime are

(1) the publication
(2) of defamatory matter
(3) which is serious, and
(4) which takes place unlawfully and
(5) intentionally

Distinction between crimen iniuria and criminal defamation:

The two crimes, crimen iniuria and criminal defamation, should not be confused with each other. In
the case of crimen iniuria, violations of a person’s dignity and privacy are made punishable. In the
case of criminal defamation, violations of a person’s good name or reputation are made
punishable. In order to distinguish between crimen iniuria and criminal defamation, it is therefore
important to keep in mind the distinction between dignity and privacy on the one hand and
reputation (or ‘‘good name’’) on the other.
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A person’s reputation refers to what others think of him. A violation of reputation always involves
three parties, namely the person who makes the defamatory statement, the complainant (Y), that is
the person about whom the defamatory statement is made, and the so-called third party (one or
more other people) to whose knowledge the defamatory statement must come.

In the case of crimen iniuria on the other hand, there are only two parties involved, namely the
wrongdoer (X), who says or does something which violates the dignity or privacy of, and the
complainant (Y), as where X insults or degrades Y over the telephone (remarks which nobody other
than Y can hear), or where he watches Y undressing.

5.5. CRIMES AGAINST FREEDOM OF MOVEMENT AND PARENTAL CONTROL

Kidnapping
Kidnapping consists in unlawfully and intentionally depriving a person of his or her freedom of
movement and/or, if such person is a child, the custodians of their control over the child. The
motive for the kidnapping is irrelevant.

The elements: (a) the deprivation of (b) a person’s freedom of movement (or the parental control
in the case of a child) which takes place (c) unlawfully and (d) intentionally.

(a) the deprivation

The removal is usually affected by force, but forcible removal is not a requirement. The removal
may also be affected by craft or cunning, as in Long (2) 1969 3 SA 713 (R), where X pretended to
be a photographer’s assistant who had to fetch a little girl from her school to photograph her, and
in this way obtained permission of the girl. The crime can also be committed even though there is
no physical removal, as where Y is concealed or imprisoned where she happens to be.

(b) a person’s freedom of movement (or the parental control in the case of a child)

Any act that has the effect of either the deprivation of a person’s freedom or the deprivation of a
parent’s control over his child will be sufficient. The victim need not be hurt or forcibly removed.

(c) unlawfulness.

(d) intent

The crime must be committed intentionally.

Abduction
A person, either male or female, commits abduction if he or she unlawfully and intentionally
removes an unmarried minor, who may likewise be either male or female, from the control of his or
her parents or guardian and without the consent of such parents or guardian, intending that he or
she or somebody else may marry or have sexual intercourse with the minor.

The elements: (a) the removal (b) of an unmarried minor (c) from the control of his or her parents or
guardian (d) with the intention of marrying or having sexual intercourse with the minor (e) without
the consent of the parents or guardian (f) unlawfulness and (g) intention.

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(a) the removal

The act consists in removing the minor from the control of his or her parents or guardian. Whether
the minor is physically removed by force or, after a request by the wrongdoer, decides to
accompany him voluntarily is immaterial.

(b) of an unmarried minor

This crime must be committed with regards to an unmarried minor. The crime is however committed
against the minor’s parents or guardian and not the minor him/herself.

(c) from the control of his or her parents or guardian

The control of the parents or guardian over the minor is not limited to the time when she is in her
parents’ home. The minor remains under the parents’ control even if she goes to visit a friend, or
goes on holiday with somebody else, or stays at another place such as a boarding school or with
relatives. In the latter case the parents exercise their control through the head of the boarding
school or the relative concerned, who are persons in loco parentis.

(d) with the intention of marrying or having sexual intercourse with the minor

The crime is committed only if the removal takes place with a certain purpose. This purpose is that
somebody (usually X himself) either marries Y or has sexual intercourse with her. For the crime to be
completed, proof of actual marriage or intercourse between the parties is not required.
Mere proof of intention to achieve one of these aims is required. However, the mere temporary
removal of a girl from her home in order to facilitate sexual intercourse is not abduction. X must
intend to remove Y either permanently or at least for a substantial period.

(e) without the consent of the parents or guardian

The removal must take place without consent. The consent which must be absent is not that of Y,
but that of her parents or guardian, because the crime is not committed against Y, but against her
parents or guardian.

(f) unlawfulness
There must be no justification for X’s conduct.

(g) intention
The form of culpability in this crime is intention.

Kidnapping should not be confused with abduction. Abduction is committed against parental
authority over a minor, whereas kidnapping is in principle committed against a person’s freedom –
and more particularly freedom of movement.

5.6. CRIMES AGAINST PRIVATE PROPERTY

Theft
A person commits theft if he unlawfully and intentionally appropriates movable, corporeal property
which:

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(a) belongs to, and is in the possession of, another;
(b) belongs to another but is in the perpetrator’s own possession; or
(c) belongs to the perpetrator but is in another’s possession and such other person has a right to
possess it which legally prevails against the perpetrator’s own right of possession.
provided that the intention to appropriate the property includes an intention permanently to
deprive the person entitled to the possession of the property, of such property.

The elements, applicable to all forms of the crime, are the following: (a) an act of appropriation;
(b) in respect of a certain type of property; (c) which takes place unlawfully and (d) intentionally
(including an intention to appropriate).

(a) an act of appropriation

Theft can be committed in various ways. One can distinguish the following four forms of committing
the crime:

 The removal of property - X commits this form of theft if he removes Y’s property, which is in Y’s
(or somebody else’s) possession, and appropriates it.

 Embezzlement - X commits this form of theft if he appropriates Y’s property which happens
already to be in X’s possession or control. This form of theft is set out in subparagraph (b) of the
definition of theft given above. In embezzlement, the way in which X comes into possession of
the property is immaterial.

 Arrogation of possession - X commits this form of theft if he takes his own property from the
possession of Y, who has a right to its possession which prevails against the owner, for example,
by virtue of a lien or a pledge. Here X steals, as it were, his own property. This form of theft is set
out in subparagraph (c) of the definition of theft given above.

 Theft of credit, including the unlawful appropriation of trust funds - X commits this form of theft if
he steals money in the form of credit. In most cases the credit has been entrusted to X with the
understanding that it is to be used in a certain way, whereupon X then violates the terms under
which he is to use it by employing it for some other purpose – usually for his own advantage.

(b) in respect of a certain type of property

Theft can be committed only in respect of certain types of property (or things).

To qualify as property capable of being stolen, the property must comply with the following
requirements:
 The property must be movable.

 The property must be corporeal, that is, an independent part of corporeal nature. Thus, one
can steal neither an idea, nor “board and lodging”.

 The property must be in commercio, that is, available in commerce or capable of forming
part thereof. Property is available in commerce if it is capable of being sold, exchanged or
pledged, or generally of being privately owned.

 In principle the property must belong to somebody else. One cannot, therefore, steal one’s
own property. The exception to this rule is the case of the unlawful arrogation of the
possession of a thing. If property belongs to two or more joint owners, the one can steal from
the other(s).

(c) which takes place unlawfully

The unlawfulness of the appropriation may be excluded by grounds of justification such as
presumed intent (negotiorum gestio), necessity or consent.
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(d) intentionally (including an intention to appropriate)
Culpability in the form of intention is required. The crime can never be committed negligently.

Theft is a continuing crime: Theft is a delictum continuum or a continuing crime. This means that the
commission of the crime continues for as long as the stolen property remains in the possession of
the thief. The result of this rule is that, generally, our law draws no distinction between perpetrators
and accessories after the fact in respect of theft. If X has stolen property and thereafter Y assists X,
who is still in possession of the property, to hide or sell it, Y is guilty not merely of being an accessory
after the fact to the theft, but also of theft as a co-perpetrator, because, at the time she assisted X,
the theft was not yet completed, but still in the process of taking place. The same will apply to
robbery.

Robbery
Robbery consists in theft of property by unlawfully and intentionally using violence to take the
property from somebody else; or threats of violence to induce the possessor of the property to
submit to the taking of the property.

The elements:

The elements of the crime are the following:

(a) the theft of property

(b) through the application of actual violence or by threats of violence

(c) a causal link between the violence and the taking of the property - if there is such a close
connection between the theft and the violence that these can be seen as connecting
components of one and the same course of action, robbery may, according to this decision, be
committed, even though the violence does not precede the taking of the property.

(d) unlawfulness and

(e) intention.

It is customary to describe the crime briefly as “theft by violence”. Though incomplete, such a
description does reflect the essence of the crime.

The ‘‘bag- and cellphone-snatching cases’’. Does X commit robbery if, with a quick, unexpected
manoeuvre, he snatches Y’s handbag, which she is clutching under her arm, and runs away with it
without Y offering, or being able to offer, any resistance?

Fraud and related crimes

Fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice
or which is potentially prejudicial to another.

The elements: (a) a misrepresentation; (b) prejudice or potential prejudice; (c) unlawfulness and (d)
intention.

(a) misrepresentation - by misrepresentation is meant a deception by means of a falsehood. It can

consist of any deceptive voluntary human conduct. Examples are the making of a

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misrepresentation through conduct, silence, uttering of a false opinion and refraining from giving
information contrary to a duty of disclosure.

(b) prejudice or potential prejudice - potential prejudice to the victim is sufficient. The
circumstances at the moment the misrepresentation was made dictate whether there was a risk of
prejudice. The prejudice need not be financial loss and the prejudice has to be the causal
consequence of the fraudulent conduct.

(c) unlawfulness

(d) intention - the perpetrator must have both the intention to deceive the victim as well as to
defraud the victim.

For example, if X uses Y’s pin number without Y’s consent to transfer credit from Y’s account to her
own account, she (X) may be convicted of fraud, because she falsely presents that it is Y who is
transferring the money or that Y has consented to the transfer.

 Forgery and uttering – forgery is a species of fraud and relates to the misrepresentation through
the falsification of a document. It consists in unlawfully and intentionally making a false
document to actual or potential prejudice of another.

 Theft by false pretences is nearly a culmination of theft and fraud. A person commits theft by
false pretences if she unlawfully and intentionally obtains movable, corporeal property
belonging to another, with the consent of the person from whom she obtains it, such consent
being given as a result of a misrepresentation by the person committing the offence, and she
appropriates it.

Malicious injury to property

Malicious injury to property consists in unlawfully and intentionally
(1) damaging property belonging to another person or
(2) damaging one’s own insured property with the intention of claiming the value of the
property from the insurer.

Elements of the crime are the following:

(1) damaging - It includes the total or partial destruction of the property, for instance where an
animal is killed or wounded, or the loss of the property or substance (eg the draining of petrol from
a container), and the causing of any injury (whether permanent or temporary) to property.
(2) property - must be corporeal and may be either movable or immovable.
(3) unlawfully - Unlawful injury to property may be justified by: statutory provisions giving X the right
to destroy, wound or catch trespassing animals; necessity, for instance where X defends himself
against an aggressive animal; official capacity, for example where a policeman breaks open a
door to gain access to a house in which a criminal is hiding; and consent by the owner of the
property.
(4) intentionally

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Arson
Arson is defined as the unlawful and intentional setting fire to the immovable property belonging to
another or your own insured property with the intention of claiming its value from the insurer.

Arson can only be committed in respect of immovable property. If a movable thing is set on fire, it
amounts to malicious injury to property. Intention, and more, particularly, intention to damage the
property by setting fire to it, thereby causing patrimonial harm to somebody, is required.

Housebreaking with intent to commit a crime

Housebreaking with intent to commit a crime consists in unlawfully and intentionally breaking into
and entering a building or structure, with the intention of committing some crime in it.

The ‘‘breaking’’ consists in the removal or displacement of any obstacle which bars entry to the
structure and which forms part of the structure itself. The most obvious act which does qualify as a
breaking in is, of course, physically breaking a door, window, wall or roof of a building (in order to
gain entry into the building). However, even acts which are on the face of it more innocuous than
those described, qualify as a breaking.

Mere ‘‘breaking’’ without ‘‘entering’’ is not sufficient to constitute the crime, although it may
amount to an attempt to commit the crime or simply malicious damage to property. The entering is
complete the moment X has inserted any part of her body, or any instrument she is using for that
purpose, into the opening, with the intention of thereby exercising control over some of the
contents of the building or structure.

The building or structure may be any movable or immovable structure which is or might ordinarily
be used for human habitation, or any immovable structure which is or might be used for storage or
housing of property.

The intention required for this crime comprises the following two completely distinct components:

(1) X must have the intention of unlawfully breaking into and entering the house or structure.
Such intention will be absent if, for example, she believes that she is breaking into her own
house, or that she is committing the act of housebreaking with the consent of the owner of
the house.
(2) Furthermore, X must have the intention of committing some other crime inside.

5.7. CRIMES AGAINST THE STATE

The most important common law crimes against the state are high treason, sedition and public
violence. There are also various statutory crimes against the state, most of them created by the
Internal Security Act 74 of 1982. Examples are terrorism and sabotage. Our discussion will be limited
to high treason and the crime of public violence.

High Treason
High treason is defined as any unlawful act committed either inside or outside the borders of the
Republic by a person who owes allegiance to the Republic with the intention of
a. overthrowing the government;
b. coercing the government by violence into any action or inaction;

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 c. violating, threatening or endangering the existence, independence or security; or
d. changing the constitutional structure of the RSA.

The elements:
• The act - Any act accompanied with a hostile intent will be sufficient. No violence is required.
Even persons who only conspire to commit high treason will be guilty of high treason. Only
people who owe an allegiance to the Republic can be perpetrators, such as citizens and
people who live here only temporarily even if they are not citizens. The act can be committed
inside or outside the Republic. There need not exist a state of war in the Republic.
• Unlawfulness - The normal grounds of justification are applicable.
• Intention - The perpetrator must have a hostile intent (animus hostilis). He must have the will to
overthrow or coerce the Republic while he knows that his conduct is unlawful.

Examples of high treason, which may be committed in times of both war and peace:

• assisting the enemy by fighting for it against the Republic or against one of its other
enemies;
• furnishing information to the enemy;
• broadcasting propaganda on behalf of the enemy;
• organising, taking part in or instigating an armed revolt or rebellion against the Republic;
• inviting an attack by an outside enemy;
• taking up arms to coerce the government to follow a certain course of action or to refrain
from certain action;
• endeavouring to bring about the unconstitutional secession of a certain area of the
Republic from the rest of the Republic; or
• murdering, or attempting, conspiring or inciting to murder the political or military leaders of
the country.

Public Violence
Public violence is defined as the unlawful and intentional commission, together with a number of
people, of any act or acts, which assume serious dimensions, and which are intended forcibly to
disturb public peace and tranquillity or to invade the rights of others.

The elements of the crime are the following:

(1) an act - any act will do as long as it is done with the necessary intention. The perpetrator must
actively associate him with the conduct of the group of people.
(2) performed by a number of persons - Those participating in the disturbance of the peace must
act together with a common purpose. Once it has been established that the accused
knowingly participated in an uprising with the aim of threatening the public peace and order,
the prosecution need not prove precisely what acts were committed by which of the
participants.
(3) which assumes serious proportions (disturbance is serious) – not merely rowdy behaviour or a
family feud.
(4) which is unlawful, and
(5) intentional, and, more specifically, includes an intention to disturb the public peace and order
by violent means, or to infringe the rights of another. The perpetrator must have the intention
to associate him with the conduct of the group. The group must have a violent intention but
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 the individuals need not be armed. The crime is committed even if there is no actual
disturbance of the public peace and order, or no actual infringement of the rights of another.
It is sufficient if the action is aimed at the disturbance of the peace or the infringement of the
rights of another.

The following are examples of behaviour amounting to public violence:

• faction fights (Ngubane 1947 (3) SA 217 (N); Xybele 1958 (1) SA 157 (T))
• joint resistance to police action by a group of persons (Samaai 1986 (4) SA 860 (C);
Segopotsi supra)
• rioting (Dingiswayo 1985 (3) SA 175 (Ck))
• violent coercion of other workers by a group of strikers (Cele supra)
• disrupting and taking over a meeting by a gang (Claassens 1959 (3) SA 292 (T))

5.8. CRIMES AGAINST THE ADMINISTRATION OF JUSTICE

Perjury
Perjury is defined as the unlawful and intentional making of a false statement (declaration) in the
course of a judicial proceeding which is material to any issue in the proceeding, by a person who
has taken the oath or made an affirmation before or has been admonished (warned) by somebody
competent to administer or accept the oath, affirmation or admonition.

The elements of this crime are

(1) the making of a declaration
(2) which is objectively false
(3) under oath or in a form equivalent to an oath – see discussion below
(4) in the course of a legal proceeding
(5) in an unlawful and
(6) intentional manner

There are three ways in which, before commencing his evidence, a witness can undertake to
speak the truth:
(1) The most common method is taking an oath (ie, swearing) that he will speak the truth (s 162
of the Criminal Procedure Act).
(2) A person may declare that he solemnly confirms that his evidence will be the truth (s 163 of
the Criminal Procedure Act). This happens when an intended witness objects to taking the
oath (perhaps on religious grounds) or indicates that he does not regard the oath as
binding on his conscience.
(3) Young children are merely warned (usually after a ‘‘friendly little sermon’’ by the magistrate
or judge) to speak the truth (s 164 of the Criminal Procedure Act).

Inducing someone to commit perjury (subordination of perjury) is also possible – See Snyman
Criminal law 335. Statutory perjury overcomes certain difficulties, inter alia, in proving the intent to
make a false statement - See Snyman Criminal law 336-38.

Contempt of Court
Contempt of court consists in the unlawful and intentional
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 (1) violation of the dignity, repute or authority of a judicial body or a judicial officer in his
judicial capacity, or
(2) the publication of information or comment concerning a pending judicial proceeding,
which has the tendency to influence the outcome of the proceeding or to interfere with the
administration of justice in that proceeding.

The elements of the crime are the following:

(1) act –
a. the violation of the dignity, etcetera, of the judicial body or the judicial officer, or
b. the publication of information or commentary concerning a pending judicial
proceeding, etc.
(2) in an unlawful and
(3) intentional manner

Examples of such contempt ‘‘in the open court’’ are

• shouting at witnesses during cross-examination (Benson 1914 AD 357)
• a legal representative’s conducting of a case under the influence of alcohol (Duffey v
Munnik 1957 (4) SA 390 (T)
• continual changing of one’s seat and talking loudly in court (Lekwati 1960 (1) SA 6 (O))
• grabbing and tearing a court document to pieces (Mongwe 1974 (3) SA 326 (O))

Defeating or obstructing the course of justice

Defeating or obstructing the course of justice is defined as the unlawful and intentional commission
of any acts that defeat or obstruct the administration of justice. An example would be if the
girlfriend of B, who committed a murder, destroys the murder weapon.

The elements of the crime are

(1) any act which
(2) defeats or obstructs the course of justice
(3) in an unlawful and
(4) intentional manner

Defeating or obstructing the course of justice (or attempting to do so) can be committed in a
variety of ways, of which the following are examples:
• unlawfully inducing (or attempting to induce) a witness to give false evidence in court, or
• to refuse to give evidence, or
• to give false information to the police, or
• to abscond (so as not to be able to give evidence at a trial);
• soliciting a complainant by unlawful means to withdraw a charge;
• soliciting a prosecutor by unlawful means not to prosecute;
• improperly influencing a party to a civil case;
• improperly seeking to influence the judiciary by exhorting them not to give any credence to
certain types of evidence, contrary to their duties, and
• unlawfully releasing a prisoner.

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5.9. CRIMES AGAINST PUBLIC WELFARE

Corruption
“Corruption can have a devastating impact on the availability, quality and accessibility of human
rights-related goods and services. Moreover, it undermines the functioning and legitimacy of
institutions and processes, the rule of law and ultimately the State itself.” - UN Human Rights Office.

“Even if a country has the most wonderful Acts and legal rules, it will fail in its endeavour to create a
just and prosperous dispensation for its citizens if corruption reigns. Corruption erodes moral values
as well as trust in the authorities and authoritative organs. It leads to the malfunctioning of the
public and private sectors of the community and provides a breeding ground for organised crime.
Corruption was previously a common law offence known as ‘‘bribery’’. From 1992, corruption was
punished in terms of the provisions of the Corruption Act 94 of 1992. In 2004, this Act was replaced
by the Prevention and Combating of Corrupt Activities Act 12 of 2004.”

General and specific crimes of corruption: The current 2004 Act creates
• a ‘‘general, broad and all-encompassing offence of corruption’’ (as it is described in the
Act)
• various crimes in which ‘‘specific corrupt activities’’ are criminalised.

General crime of corruption:

The definition of the general crime of corruption in section 3 of the Prevention and Combating of
Corrupt Activities Act 12 of 2004 may be summarised as:
Anyone who
a) accepts any gratification from any other person, or
b) gives any gratification to any other person,
in order to influence the receiver to act in a manner that amounts to the unlawful exercise of
any duties, is guilty of the offence of corruption.

Corruption is committed if one party gives gratification to another party and the other party
accepts it as inducement to act in a certain way. Both parties – the giver and the recipient –
commit corruption. The expression ‘‘corruption by a giver’’ refers to the conduct of the giver, and
‘‘corruption committed by a recipient’’ to the conduct of the party who accepted it.

Corruption by the recipient deals with acceptance by Y of gratification given by X. The elements of
the general crime of corruption by the recipient are the following:

1. the acceptance by Y (the element of an act)

2. of gratification – is not limited to tangible or patrimonial benefits, and may include for
example money, a gift, a loan, property, the avoidance of a loss, the avoidance of a
penalty (such as a fine), employment, a contract of employment or services, any
forbearance to demand any money, any ‘‘favour or advantage of any description’’, and
any right or privilege.
3. in order to act in a certain way (accept the gratification as an inducement to act in a
certain manner)
4. unlawfulness
5. intention

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Corruption by the giver deals with the giving by X of gratification to Y. “Corruption committed by
the giver is but only a mirror image of corruption committed by the recipient. Instead of ‘accept’
(which describes Y’s conduct in corruption as recipient), the word ‘give’ (which describes X’s
conduct in corruption by the giver) should be used.” The elements of the general crime of
corruption by the giver are the following:
1. the giving by X to Y (the requirement of an act) – “give or agree or offer to give any
gratification”. I.e. it is not a requirement for the offence committed by the giver that X should
have succeeded with her plan of action,
2. of gratification
3. in order to induce Y to act in a certain manner (the element of inducement)
4. unlawfulness
5. intention

Specific corrupt activities

Part 2 of the Act deals with offences in respect of corrupt activities relating to specific persons,
including offences in respect of corrupt activities relating to public officers, foreign public officials,
agents (i.e. corruption committed by businesspeople in the private sector), members of legislative,
judicial officers, members of the prosecuting authority, receiving or offering of unauthorised
gratification by a party to an employment relationship, corruption relating to procuring of tenders,
and corruption relating to sporting events.

Section 34 creates an important crime which consists of a failure by a person in a position of

authority, who knows, or ought reasonably to have known, that certain crimes named in the Act
have been committed, to report an offence created in the Act to a police officer. (Example of a
crime committed by omission).

Extortion
Extortion may be defined as the unlawful and intentional acquisition of a benefit from some other
person by applying pressure to that person which induces her to part with the benefit.

X must acquire the advantage by exerting some form of pressure on Y, which may take the form of
threats or intimidation that some harm will befall Y.

The elements of this crime are

(1) the acquisition of

(2) a benefit
(3) by applying pressure
(4) a causal link (between the pressure and the acquisition of a benefit)
(5) unlawfulness
(6) intention

Drug offences
The most important offences relating to drugs are found in the Drugs and Drug Trafficking Act 140 of
1992 (hereinafter called ‘‘the Act’’). We will focus only on the two most prevalent offences:

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 (1) The use or possession of drugs - It is an offence for any person unlawfully and intentionally to
use or have in her possession any dependence-producing substance or any dangerous
dependence producing substance or any undesirable dependence-producing substance
(s 4 of the Act) - prohibition upon the personal use or possession of dagga has been
declared unconstitutional.

(2) Dealing in drugs - It is an offence unlawfully and intentionally to deal in any dependence-
producing substance or any dangerous dependence-producing substance or in any
undesirable dependence-producing substance (s 5(b) and 13(f) of the Act).

Activity - What is the current legal position regarding the legalisation or de-criminalisation of private
cultivation, use, possession, and dealing of cannabis? See addendum below regarding the
judgement in Minister of Justice and Constitutional Development v Prince [2018] ZACC 30.

Unlawful possession of firearms or ammunition

The Firearms Control Act 60 of 2000 (hereafter called ‘‘the Act’’) regulates the control of firearms
and ammunition and creates a number of offences relating to, inter alia, the unlawful possession of
firearms and ammunition.

Unlawful possession of a firearm is defined as any person who possesses a firearm (referred to
physical control over the arm with the intention of possessing it) without a licence, permit or
authorisation issued in terms of the Act for that firearm, commits an offence (s 3 of the Act).

Unlawful possession of ammunition - Section 90 provides that no person may possess any
ammunition unless she (1) holds a licence in respect of a firearm capable of discharging that
Ammunition, (2) holds a permit to possess ammunition, (3) holds a dealer’s licence, manufacturer’s
licence, gunsmith’s licence, import, export or in-transit permit or transporter’s permit issued in terms
of this Act, or (4) is otherwise authorised to do so.

Other offences relating to firearms and ammunition (briefly defined) created in the Act:
i. to be aware that somebody else possesses a firearm illegally and to fail to report this to the
police
ii. to cause bodily injury to a person or damage to property by negligently using a firearm
iii. to handle a firearm while under the influence of a substance which has an intoxicating or a
narcotic effect
iv. to discharge a firearm in a built-up area or a public place
v. to lose a firearm owing to a failure to lock it away in a safe, strongroom or safe-keeping
device, or owing to failure to take reasonable steps to prevent its loss or owing to failure to
keep the keys to the safe, strongroom or device in safe custody

*****

5.10. ASSESSMENT CRITERIA

If you have completed all the activities and you are able to answer the following questions, you
should be able to:
 Advise a member of the community whether the act he described to you is consistent with
the definition of the discussed crimes.

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5.11. SELF-EVALUATION QUESTIONS

1. Define murder.
2. B, a member of the community, comes to you for advice. He fears that he is going to be
prosecuted for culpable homicide. He tells you that he was the driver of a motor vehicle
and, as he went through a green robot, another vehicle came through a red robot and
collided with him. As a result of the collision, his friend who was with him in the vehicle at the
time died of multiple injuries. Advise him by referring to all the elements of the crime
culpable homicide whether he will be prosecuted.
3. Mrs. C comes to you in tears. Her husband forces himself onto her sexually every time. She
has had enough and wants to know from you whether she can go and lay a charge of
rape against him. What would your advice be?
4. Discuss the crime abduction.
5. Compare the crimes robbery and theft and stipulate what the differences and what the
similarities are.

ADDENDUM: LEGALISATION OR DE-CRIMINALISATION OF PRIVATE

CULTIVATION, USE OR POSSESSION OF CANNABIS

Based on the judgement in Minister of Justice and Constitutional Development v Prince [2018]
ZACC 30, a decision of the Constitutional Court of South Africa delivered on 18 September 2018,
which found that it is unconstitutional for the State to criminalise the possession, use or cultivation
of cannabis by adults for personal consumption in private.

Legislation - Drugs and Drug Trafficking Act 140 of 1992

The relevant sections of the Act include:

• Section 1 “deal-in” - the definition reads: “‘deal in’, in relation to a drug, includes performing
any act in connection with the transhipment, importation, cultivation, collection, manufacture,
supply, prescription, administration, sale, transmission, or exportation of the drug”
• Sections 4(b) - prohibits the use or possession of any dangerous dependence-producing
substance or any undesirable dependence-producing substance unless one or more of the
exceptions listed therein applies.
• Section 5(b) - prohibits dealing in any dangerous dependence–producing substance or any
undesirable dependence-producing substance unless one or more of the exceptions listed in
that provision applies.

When section 5(b) is read with the definition of the phrase “deal in” in section 1 of the Drugs Act,
one of its effects is that the performance of any activity in connection with the cultivation by an
adult of cannabis in a private place for his or her personal consumption in private is criminalised.

Decision by the Western Cape High Court

The substantive legal question:

The High Court dealt with the matter on the basis that “the core of the case brought before [it]”
was “whether the infringement of the right to privacy caused by the impugned legislation [could]
be justified in terms of section 36 of the Constitution”.

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Can government legitimately dictate what people eat, drink or smoke in the confines of their own
home or in properly designated places?

Decision:

The order of the High Court declared the provisions of those sections (sections 4(b) and 5(b) of the
Drugs and Drug Trafficking Act 140 of 1992) are inconsistent with the right to privacy entrenched in
the Constitution and invalid “only to the extent that they prohibit the use of cannabis by an adult in
private dwellings where the possession, purchase or cultivation of cannabis is for personal
consumption by an adult”.

Ratio decidendi of the High Court:

The High Court’s basis for declaring the provisions constitutionally invalid to the extent that it did,
was that they were inconsistent with the right to privacy when an adult uses or is in possession of,
or, cultivates, cannabis in a private dwelling or at home for his or her consumption in private.

According to the High Court both sections 4 and 5 of the Drugs Act needed to be amended to
ensure that they did not apply to persons “who use small quantities of cannabis for personal
consumption in the privacy of a home as the present position unjustifiably limits the right to
privacy”.

All that the medical evidence on this record tells us is that the effects of cannabis are dose-related
and cumulative and that while ‘prolonged heavy use or less frequent use of a more potent
preparation are associated with many different problems’, ‘one joint of dagga or even a few joints’
will not cause any harm.

Application for confirmation of an order of constitutional invalidity

Section 172(2) of the Constitution provides that “an order of constitutional invalidity has no force
unless it is confirmed by the Constitutional Court”. That means that any order of constitutional
invalidity of an Act of Parliament or a provision of an Act of Parliament made by a court other than
this Court does not take effect for as long as it has not been confirmed by the Constitutional Court.

Therefore, the order of constitutional invalidity granted by the Western Cape Division of the High
Court had to be confirmed by the Constitutional Court. Thus, confirm or set aside the order of
unconstitutionality of the High Court.

Decision of the Constitutional Court

The substantive legal question:

Whether the prohibition by the impugned provisions of the mere possession, use or cultivation of
cannabis by an adult in private for his or her personal consumption in private is inconsistent with the
right to privacy provided for in section 14 of the Constitution and, therefore, invalid?

Decision:

• It is declared that section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 is
inconsistent with right to privacy entrenched in section 14 of the Constitution and, therefore,
invalid to the extent that they make the use or possession of cannabis in private by an adult
person for his or her own consumption in private a criminal offence.

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 • It is declared that section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with
the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of
1992 are inconsistent with the right to privacy entrenched in section 14 of the Constitution
and, are, therefore, constitutionally invalid to the extent that they prohibit the cultivation of
cannabis by an adult in a private place for his or her personal consumption in private.

• All the time this is so only in respect of an adult and not a child.

• The order of invalidity in this case will operate prospectively, i.e. with effect from the date of
the order.

• The operation of the orders of invalidity above is suspended for a period of 24 months from
the date of the handing down of this judgment to enable Parliament to rectify the
constitutional defects. In other words, the legislature has 24 months to enact new legislation
giving effect to this judgement.

Interim relief:

• If no interim relief is granted, there are many adult people who will continue to be arrested
by the police and who will face criminal charges and, if convicted, possible imprisonment
for the use or possession or cultivation of cannabis in private for personal consumption in
private – something that this judgment says nobody should be arrested for or charged with.

• Therefore, for the time being, and in order to remedy the situation in the interim, the Court
granted is a ‘reading-in’, which will operate during the period of the suspension of the
declaration of invalidity.

Ratio decidendi of the Constitutional Court:

Privacy concern dictate and our Constitution recognises (in section 14 - right to privacy) that there
should be an area of autonomy that precludes outside intervention, including by the State.

Therefore, the Court had to answer whether the limitation on the right to privacy is constitutional in
terms of section 36 of the Constitution (the limitation clause). The State had to satisfy the Court that
the limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom as required by section 36 of the Constitution.

Do the impugned provisions limit the right to privacy?

The impugned provisions criminalise the cultivation, possession or use of cannabis, to the extent
that they limit the right to privacy. The right to privacy entitles an adult person to use or cultivate
or possess cannabis in private for his or her personal consumption.

Is the limitation reasonable and justifiable?

The State has failed to show that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom.

The importance of the purpose of the limitation

The purpose of the prohibition is the protection of “the health, safety and psychological well-
being of persons affected by the use of cannabis”

Nature and extent of the limitation

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 The impugned provisions criminalise, among others, the cultivation of cannabis in private by an
adult for his or her personal consumption in private.

Are there less restrictive means to achieve that purpose?

If the government wishes to restrict so important a right as a private act of consuming cannabis
in the intimacy of a home, they should attempt to employ means of doing so which are the least
restrictive of the rights being infringed.

Even if it could be said that the objectives of the prevention of crime, a reduction in crime,
prevention of negative effects on driving ability and detrimental neurological, cardiovascular
and respiratory effects are met by the impugned provisions, the State was not able to show that
are other lesser invasive restrictive means to achieve this purpose. In other words, the point of this
judgment is that there are a multitude of options available to fight this problem as opposed to
the blunt use of the criminal law.

It is practically and objectively possible for legislation to distinguish the use of cannabis and the
possession, purchase or cultivation of cannabis for personal consumption from other uses”

What about quantity?

The Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (1988
Convention) “establishes a fundamental distinction between the ‘possession, purchase or
cultivation of narcotic drugs or psychotropic substances for personal consumption’ (article 3(2))
and trafficking and dealing conduct (article 3(1)), conduct which is described as ‘serious’.

This distinction is reflected in the differential regulation in the Drugs Act for possession for personal
use (section 4) and dealing (section 5)”. The Drugs Act recognises that when it comes to possession
for purposes of personal use, smaller quantities are involved. Hence, the Act created a
presumption that a person found in possession of cannabis exceeding the prescribed mass (115
grams) was presumed to be dealing - section 21(1)(a)(i) of the Drugs Act. (Note: this provision has
been declared unconstitutional in S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC)).

The question remains: which quantity of cannabis is justifiable for ‘personal consumption’?

The quantity of cannabis in a person’s possession constitutes an objective, established and readily
enforceable basis upon which to distinguish possession for personal consumption from dealing or
other, more serious conduct.

Whether the existing prescribed quantity should remain applicable in the light of the finding of this
Court is for the legislature to determine, however the Court is of the opinion that it would be
practical and objectively possible for legislation to distinguish the use of cannabis and the
possession, purchase or cultivation of cannabis for personal consumption from other uses.”

In determining whether or not a person is in possession of cannabis for a purpose other than for
personal consumption, an important factor to be taken into account will be the amount of
cannabis found in his or her possession. The greater the amount of cannabis of which a person is in
possession, the greater the possibility is that it is possessed for a purpose other than for personal
consumption. Where a person is charged with possession of cannabis, the State will bear the onus
to prove beyond a reasonable doubt that the purpose of the possession was not personal
consumption.

What constitutes ‘smaller quantities’? The determination of the amount is left to Parliament. The
Court is of the opinion that the references to possession of cannabis, “for personal use,” or “for
personal consumption” help to ensure that we do not have to specify the amount or quantity of
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cannabis that may be possessed. We only need to say that the amount that may be possessed is
an amount for personal consumption.

Impact on the legislature:

1. Parliament should determine the extent of what would constitute small quantities in private
dwellings.
2. The legislature and the executive should decide on a suitable option or alternatives which can
be made after these have been the subject of a deliberative process.
3. The reading-in will fall away upon the coming into operation of the correction by Parliament of
the constitutional defects in the statutory provisions identified in the Court’s judgment.
4. Should Parliament fail to cure the constitutional defects within 24 months from the date of the
handing down of the Court’s judgment or within an extended period of suspension, the
reading-in of the Court’s order will become final.

Cultivation versus purchasing or dealing:

The Court stated that it had “no intention of decriminalising dealing in cannabis”.

A purchaser of cannabis would be purchasing it from a dealer in cannabis. Dealing in cannabis is a

serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of
the right to privacy. In other words, the Court’s decision is that an adult person may, use, be in
possession of, or cultivate cannabis in a private place for his or her personal consumption in
private. Dealing in cannabis (buying and selling) implies that you have either cultivated, and/or
have in your possession, more cannabis than what is appropriate for personal consumption.
Therefore, this judgement has no effect on the prohibition of dealing in cannabis.

“In private”?
The judgment does not confine the permitted use or possession or cultivation of cannabis to a
home or a private dwelling. Therefore, when one considers the right to privacy of the ‘PERSON’ of
the Cannabis user it seems as though ‘in private’ would also include the possession of cannabis on
his person. Therefore, the general principle regarding ‘in person’ is that as long as the use or
possession of cannabis is in private and not in public and the use or possession of cannabis is for
the personal consumption of an adult, it is protected. The issue of the cultivation of cannabis in
private by an adult for personal consumption in private should be dealt with simply on the basis
that the cultivation of cannabis by an adult must be in a private place and the cannabis so
cultivated must be for that adult person’s personal consumption in private.

This is because there are other places other than a person’s home or a private dwelling where the
prohibition of the use or possession or cultivation of cannabis would be inconsistent with the right to
privacy if the use or possession or cultivation of cannabis was by an adult in private for his or her
personal consumption in private.

An example of cultivation of cannabis in a private place, outside a home, is the garden of one’s
residence. This will probably will not include communal gardens, for example in a townhouse
complex. It may or may not be that it can also be grown inside an enclosure or a room under
certain circumstances. It may also be that one may cultivate it in a place other than in one’s
garden if that place can be said to be a private place. Using the term “in private” instead of “at
home” or “in a private dwelling” is preferable.

Effect for police officers in terms of section 40(1)(h) of the CPA:

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Section 40(1)(h) of the Criminal Procedure Act states that “a peace officer may without warrant
arrest any person - who is reasonably suspected of committing or of having committed an offence
under any law governing the making, supply, possession or conveyance of intoxicating liquor or of
dependence-producing drugs or the possession or disposal of arms or ammunition.”

One of the effects of this judgment is that it is no longer a criminal offence for an adult to use or be
in possession of cannabis in private for his or her own personal consumption in private.
Consequently, an exception is created with the result that the use or possession of cannabis in
private or cultivation of cannabis in a private place for personal consumption in private is no longer
a criminal offence.

If that conduct will no longer be a criminal offence, there can be no basis for a peace officer to
reasonably suspect an adult in that situation to be committing or to have committed an offence by
being in possession of cannabis.

However, the above reading-in means that, if a police officer finds a person in possession of
cannabis, he or she may only arrest the person if, having regard to all the relevant circumstances,
including the quantity of cannabis found in that person’s possession, it can be said that there is a
reasonable suspicion that a person has committed an offence under section 40(1)(b) or (h) of the
Criminal Procedure Act.

At a practical level, a question that arises is: if a police officer finds someone in possession of
cannabis, how will he or she know whether that person is in possession of that cannabis for personal
consumption? Obviously, a police officer will ask the person questions but his or her answers will not
be decisive. The police officer will need to have regard to all the relevant circumstances and take
a view whether the cannabis possessed by a person is for personal consumption. If he or she takes
the view, on reasonable grounds, that that person’s possession of cannabis is not for personal
consumption, he or she may arrest the person. If he or she takes the view that the cannabis in the
person’s possession is for that person’s personal consumption, he or she will not arrest him or her.

There will be cases where it will be difficult to tell whether the possession is for personal consumption
or not. In such instances a police officer should not arrest the person because in such a case it
would be difficult to show beyond reasonable doubt later in court that, that person’s possession of
cannabis was not for personal consumption.

The above reading-in may be criticised on the basis that it does not provide either a police officer
or anyone with certainty as to when the possession of cannabis can be said to have crossed the
line of personal use or consumption and will, therefore, have become prohibited. If a police officer
finds a person in possession of cannabis and he or she thinks it is not for personal consumption, he
or she must ask the person such questions as may be necessary to satisfy himself or herself whether
the cannabis he or she is in possession of is for personal consumption. If, having heard what the
person has to say, the police officer thinks that the explanation is not satisfactory, he or she may
arrest the person. Ultimately, it will be the court that will decide whether the person possessed the
cannabis for personal consumption.

The same principles will apply in regard to cultivation, where the question also arises as to how a
police officer who comes across cannabis that is being grown in a garden or in a private place will
know whether the adult person growing it is growing it for his or her personal consumption.

Summary of the current legal position regarding the legalisation or de-criminalisation of

private cultivation, use, possession, and dealing of cannabis based on the Prince
judgement

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1. An adult person may, use or be in possession of cannabis in private for his or her
personal consumption in a private place.

2. The use, including smoking, of cannabis in public or in the presence of children or in

the presence of non-consenting adult persons is not permitted.

3. The use or possession of cannabis in private other than by an adult for his or her
personal consumption is not permitted. The quantity for purposes of ‘personal
consumption’ is to be decided.

4. The cultivation of cannabis by an adult in a private place for his or her personal
consumption in private is no longer a criminal offence. The effect is that it will be a
defence to a charge of cultivation of cannabis that the cultivation is in a private
dwelling and is for the personal consumption of the adult accused person concerned.

5. The judgement has no effect on the prohibition of dealing in cannabis. Dealing in

cannabis (buying and selling) implies that you have either cultivated, and/or have in
your possession, more cannabis than what is appropriate for personal consumption.
The question remains: how much cannabis is justified for ‘personal consumption’?

6. The judgement has shifted the presumption of possession, use or cultivation

of cannabis by adults to being legal. If a police officer finds an adult person is using or
in possession of, or has cultivated, cannabis, he or she may only arrest the person
without a warrant, if it can be said that there is a reasonable suspicion that a person
has committed an offence under section 40(1)(b) or (h) of the Criminal Procedure Act.
The court will consider all the relevant circumstances, including:
a. the quantity of cannabis cultivated, in use or in possession,
b. whether the cannabis was cultivated in a private place (if relevant), and
c. whether the cannabis was held or used in private (in terms of the right to
privacy), not in public, and without children or non-consenting adults being
present (if relevant).

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