LCRM 2604

CRIMINAL LAW

NQF level 6

16 credits

Public Law

Dr. Rinda Botha

2021

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TABLE OF CONTENTS
1. Welcoming 4
2. Module objective 4
3. Module outcomes 5
4. Learning units 6
5. Prerequisites 7
6. Credits and notional learning hours 7
7. Study material 8
8. Assessment 9
8.1 Assessment breakdown 9
8.2 Tests/Assignments 9
8.3 Calculation of the final mark 9
8.4 Passing the module 10

9. Updating of module information and resources 10

10. Student Graduate Attributes 10
11. Learning Units 1 – 15 15-62
Unit Overview 15-62
Learning unit notional hours 15-62
Learning outcomes 15-62
Unit specific study material 15-62
Preparation material 15-62
Content material 15-62
Learning and assessment activities 15-62
Questions to Consider During This Unit 15-62
Student Graduate Attributes 15-62

12. Consultation hours 62

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Table 1: Icon Library
Icon Description

Welcoming message

Module objective

Module outcomes

Action words, terms and concepts that need to be understood

Indicates activities and resources made available on Blackboard

Prerequisites of the module

Credits and notional hours relevant to the module

Indicates face-to-face contact sessions

Indicates an activity to be completed on your own (preparation). You may still

ask for feedback from your tutor or lecturer when you encounter aspects that
you have difficulty with.

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A quiz – usually made available for self-assessment on Blackboard

Unit-specific content for the module

The resources to be consulted (such as the textbook, additional reading

material etc)

The roadmap that contextualises (puts into perspective) the different pieces of
information in the module

An indication of an important reminder/cautionary from your lecturer to be paid

attention to.

Assessment questions and opportunities

Unit specific assessment criteria

Indicates a learning unit

Learning unit outcomes for a specific unit

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 Purpose of the learning unit

Student Graduate Attributes

1. Welcoming

Dear student,
Welcome to LCRM 2604. This module focuses on Criminal law and is presented in the
Department of Public Law.

During the first semester the focus will be on the various elements of crime namely
legality, conduct, causation, unlawfulness, accountability and fault.

In the second semester participation in crime, incomplete crimes and various specific
crimes will be dealt with. Your knowledge of the elements of a crime (as mastered
during the first semester) will assist you in identifying and understanding the specific
elements of the different crimes.

It is the responsibility of all students to ensure that they receive all the information in
connection with this module. This information is made available during formal lectures
and tutorial sessions; on Blackboard and in the Faculty of Law Rulebook. Attendance
of all formal classes are compulsory. Please note that only registered students will be
allowed to attend the contact sessions of this module.

I hope you enjoy the module!

2. Module objective

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The module currently forms part of the LLB qualification and is taken in the second
year of study.

The purpose of this module is to facilitate the student’s acquisition of knowledge of the
most important concepts and legal principles pertaining to South African criminal law.
The focus is on the general principles of criminal liability (including legality, conduct,
causation, unlawfulness and culpability); the various role players in crime and their
criminal liability; the incomplete crimes of attempt, conspiracy and incitement; and the
specific elements of the selected crimes that can be committed against the person,
state, community, administration of justice and property. Throughout the module,
emphasis is placed on the influence of constitutional values and imperatives on
criminal law and the harmonisation thereof with common law principles. The module
furthermore aims to enable students to solve unfamiliar problems by applying their
knowledge and skills to authentic scenarios involving criminal law issues.

To achieve this purpose, formal lectures, audio-visual media, textbooks, casebooks,

discussions of court decisions, self-study and other tasks are used.

3. Module outcomes

On completion of this module, the student will be able to:

• Describe the specific position of criminal law within the legal framework.

• Give an outline of how criminal law advances the course of social justice.

• Explain the effect of constitutional imperatives on the criminal law and the
harmonisation thereof with common law principles.

• Reflect on the transformative effect of the Bill of Rights on sentencing options,

the common law definition of rape and crimes created in terms of the Witchcraft
Suppression Act 3 of 1957.

• Map out the general elements of crime as well as the defences/ground of

justification that can be raised against the elements of conduct, unlawfulness,
criminal accountability and fault.

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• Compare the South African rules and legislation regulating intoxication, private
defence and provocation with those of Canada.

• Contrast selected crimes that can be committed against the person, state,
community, administration of justice and property as well as the possible
defences that can be raised by an accused in the given scenario.

• Critically discuss the various crimes that can be committed in terms of the
Witchcraft Suppression Act 3 of 1957 and the effect thereof within a cultural
context.

• Explain the effect of decolonisation on the belief in witchcraft and the role that
the belief presently plays in criminal proceedings.

• Distinguish between the incomplete crimes of attempt, conspiracy and

incitement.

• Discuss the various forms of participation in the commission of a crime.

• Draft a proper charge sheet based on a given set of facts, containing all the
necessary information.

• Apply knowledge regarding the key legal aspects of the selected crimes that
can be committed against the person, state, community, administration of
justice and property to hypothetical scenarios.

• Apply relevant criminal law theory and case law towards solving unfamiliar
problems that require an analysis and evaluation of criminal liability and the
existence of a valid ground of justification/defence against criminal liability.

4. Learning units

In addressing the module outcomes above, the following learning units will be covered
in this module:

Learning unit 1: Introduction

Learning unit 2: The principle of legality
Learning unit 3: Conduct
Learning unit 4: Causation
Learning unit 5: Unlawfulness
Learning unit 6: Accountability

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 Learning unit 7: Fault

Learning unit 8: Participation in crime

Learning unit 9: Incomplete crimes

Learning unit 10: Crimes against the person

Learning unit 11: Crimes against the state

Learning unit 12: Crimes against the community

Learning unit 13: Crimes against the administration of justice

Learning unit 14: Crimes against property

Learning unit 15: Drafting of a charge sheet

5. Prerequisites

Please consult the Faculty of Law Rulebook for more information in this regard.

6. Credits and notional learning hours

Notional learning hours indicate the amount of learning time taken by the average
student to achieve the specified learning outcomes of a module or the learning
programme. It includes all learning relevant to achievement of the learning outcomes
e.g. directed study, essential practical work, group work, private study, preparation
and assessment.

This module has 16 credits, which implies that 160 notional learning hours of learning
are expected from students.

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 7. Study material

The prescribed textbook in this module is: Snyman’s Criminal Law, updated by SV
Hoctor, Seventh edition, 2020, LexisNexis.

You may also use Snyman, CR. 2014. Criminal Law, Sixth edition,
LexisNexis, if availability of the seventh edition is limited.

 To assist with the studying of case law, Burchell, J: 2016, Cases and Materials
on Criminal Law, Fourth edition, Juta, is recommended.
 In addition to the above, other study material will also be used as part of the
teaching and learning in this module. A list of the court cases to be discussed
as part of this module, will be available on Blackboard. It is students’
responsibility to ensure that they obtain and prepare all reading material for this
module in time.

In the Guide, reference is also made to the following academic sources:

Burchell, J. 2016. Principles of Criminal Law, Fifth edition, Claremont:Juta.

Kemp, G et al. 2012. Criminal Law in South Africa, Second edition, Cape Town,
Oxford University Press.

Botha, R and Van Rooyen, M. 2016. Dronkenskap as verweer in die Suid-

Afrikaanse Strafreg: ‘n Sober benadering? LitNet Akademies 13(2): 556-593.

Botha, R. 2014. Strafregtelike struikelblokke in die mishandelde persoon se stryd

om geregtigheid. LitNet Akademies 11(3): 189-222.

Botha, R. 2018. Geloof in heksery – ‘n grondige verweer in die strafhof of gegoël

met die reg? LitNet Akademies 15(1): 456-503.

South African Law Reform Commission (SALRC). 2014. Issue Paper 29. The
review of the Witchcraft Suppression Act 3 of 1957. Project 135.

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 South African Law Reform Commission (SALRC). 2016. Dicussion Paper 139. The
review of the Witchcraft Suppression Act 3 of 1957. Project 135.

Singh, A and Msuya, M.H. 2019. Witchcraft accusation and the challenges related
thereto: can South Africa provide a response to this phenomenon in Tanzania?
Obiter: 106-116.

8. Assessment

8.1 Assessment breakdown

The assessment plan (2021) as well as the assessment calendar (2021) for this
module will be available on Blackboard.

8.2 Tests/Assignments

Please consult the assessment calendar of the Faculty of Law for the dates of
assessments. The assessment calendar will be available on Blackboard at the
commencement of the semester.

Please refer to the Faculty of Law Undergraduate Assessment Rules and Regulations
that is available on Blackboard and ensure that you are familiar with the contents
thereof.

8.3 Calculation of the final mark

Your final mark for this module will be calculated as follows:

 Fifty percent (50%) of the module mark (predicate) plus fifty percent (50%) of
the examination mark; or
 In modules which are assessed by way of continuous assessment (different
assessment opportunities throughout the semester without an examination),
the average mark of all the assessment opportunities whilst taking into
consideration the different weightings of the assessments.

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 8.4 Passing the module

In modules which are assessed by way of formative and summative assessment

(assessments during the semester with a final examination), a student should
obtain a final mark of 50% or more in order to pass this module. In addition, a sub-
minimum examination mark of 40% is required.

In modules which are assessed by way of continuous assessment (different

assessment opportunities throughout the semester without an examination), a
student should have taken part in all the assessment opportunities and obtain an
average of 50%.

9 Updating of module information and resources

The module schedule/ roadmap and learning unit content, either orally or in writing,
can be updated or modified at any time by the lecturer. It is the responsibility of
students enrolled for this module to stay up-to-date with the schedule and curriculum.
An announcement of this type can be given in face to face class sessions, or
communication on Blackboard. It is recommended that students check Blackboard
daily to keep up to date with what is happening in this module. Any work discussed
during contact sessions may be used for assessment purposes.

10 Student Graduate Attributes

Graduate attributes may be broadly defined as the qualities, competencies and

understandings of a graduate which a university community agrees students should
develop during their time at the institution, both for their future professions and to
contribute as ordinary citizens.

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These attributes include but go beyond the disciplinary expertise or technical
knowledge that has traditionally formed the core of most university courses. They are
qualities that also prepare graduates as agents of social good and for personal
development in light of an unknown future.

The eight student graduate attributes identified by the UFS that will be developed
during the course of a student’s undergraduate studies, are the following:

The 8 Graduate Attributes:

Academic competence is a graduate attribute embedded in all assessments and

refers to the knowledge, skills and attitudes that students develop through their
interaction with discipline specific content. Critical to academic competence is lifelong
learning, which is an all purposeful learning activity, undertaken on an ongoing basis
with the aim of improving knowledge, skills and competence. Lifelong learners are
curios, take initiative, learn independently, transfer knowledge, and reflect on their
learning.

Academic competence for the LLB learner means that the learner has a
comprehensive and sound knowledge and understanding of the South African
Constitution and basic areas or fields of law. This relates to the body of South African
law and the South African legal system, its values and historical background. The
learner can demonstrate an integrated understanding of legal principles, concepts,

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theories and values, also in relation to societal issues. The graduate has knowledge
and understanding of:
(a) the dynamic nature of law and its relationship with relevant contexts such as
political, economic, commercial, social and cultural contexts;
(b) a discipline other than law and law’s relationship to other disciplines; and
(c) select areas of the law.

Critical thinking is a habit of mind characterized by the comprehensive exploration

of issues, ideas, artifacts, and events before accepting or formulating an opinion or
conclusion.

Critical thinking for the LLB learner means that the learner can demonstrate the
ability to research, analyse and evaluate information from a legal perspective. The
learner is able to:
(a) recognise and reflect on the role, place and limitations of law in South African
society and beyond;
(b) analyse a text and/or scenario to find the key issues, i.e., distinguish between
relevant and irrelevant information and distinguish between legal and non-legal
issues;
(c) identify and address the issues presented in a text or scenario; and
(d) make judgments on the merits of particular arguments and make and present
reasoned choices between alternative solutions.

Problem solving is the process of designing, evaluating and implementing a strategy

to answer an open-ended question or achieve a desired goal.

Problem solving for the LLB learner means that the learner is able to:
(a) find, select, organise, use, analyse, synthesise and evaluate a variety of relevant
information sources;
(b) determine the relative authority of relevant information sources;
(c) present and make a reasoned choice between alternative solutions;
(d) use techniques of legal reasoning, methodology and argumentation to reach a
plausible conclusion; and
(e) demonstrate academic integrity in research.

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Communication comprises of oral as well as written communication.

Oral communication is a prepared, purposeful presentation designed to increase

knowledge, to foster understanding, оr to promote change in the listeners' attitudes,
values, beliefs or behaviours.

Written communication is the development and expression of ideas in writing.

Written communication involves learning to work in many genres and styles. It can
involve working with many different writing technologies, and mixing texts, data, and
images. Written communication abilities develop through iterative experiences across
the curriculum.

Communication as an attribute of the LLB learner means that the learner is

proficient in reading, writing, comprehension and speaking and is therefore able to:
(a) communicate effectively by choosing appropriate means of communication for
a variety of contexts;
(b) demonstrate effective oral, written, listening and non-verbal communication
skills;
(c) apply communication skills to relevant situations and genres; and
(d) engage with diverse audiences.

Ethical reasoning is reasoning about right and wrong human conduct. It requires
students to be able to assess their own ethical values and the social context of
problems, recognize ethical issues in a variety of settings, think about how different
ethical perspectives might be applied to ethical dilemmas and consider the
ramifications of alternative actions. Students’ ethical self-identity evolves as they
practice ethical decision-making skills and learn how to describe and analyze positions
on ethical issues.

Ethical reasoning as an attribute of the LLB learner means that the learner can
solve complex and diverse legal problems creatively, critically, ethically and
innovatively.

The LLB learner has knowledge of relevant ethical considerations in law and is able
to conduct her/himself ethically and with integrity in her/his relations within the
university and beyond, with clients, the courts, other lawyers and members of the
public.

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Community engagement is continuous negotiated collaborations and partnerships
between the UFS and/or its members and the interest groups that it interacts with,
aimed at building and exchanging the knowledge, skills, expertise and resources
required to develop and sustain society.

Community engagement as an attribute of the LLB learner means that the learner
has skills and knowledge to understand the responsibilities of the legal professional in
service to the community. In doing so, the learner is able to recognize, reflect and
apply social justice imperatives in acknowledging the capacity, agency and
accountability of the legal professional in shaping and transforming the legal system
and promote social justice.

Entrepreneurial mindset is a set of attitudes, skills and behaviours that can be

applied in all spheres of life. This mindset enables citizens to nurture their personal
development, to actively contribute to social development, to enter the job market as
employee or as self-employed, and to start-up or scale-up ventures which may have
a cultural, social or commercial motive.

Entrepreneurial mindset as an attribute of the LLB learner means that the learner
is able to:
(a) function effectively in independent and collaborative settings;
(b) recognise opportunities, be creative and innovative, be future-orientated,
comfortable with risk-taking, take initiative, be self-reliant, flexible and adaptable.

Assessment of Graduate Attributes

Academic competence will form the foundation of all assessments throughout the LLB
programme in terms of which one or more of the other attributes will also be assessed
to establish the attainment thereof. It is a priority of the Faculty of Law of the UFS to
develop all eight of the identified student graduate attributes in all the modules
presented throughout the course. However, the assessment to establish the
attainment thereof might only be performed in specific identified modules on different
levels, depending on the moment within which it falls during the academic programme.

These assessments could form part of a student’s formative or summative

assessments and contribute towards his/her final mark for a particular module but will

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be designed to provide proof of the attainment of one or more specified graduate
attribute at a particular level. Learners will be informed of the nature and purpose of
these assessments and will be encouraged to compile portfolios (or ePortfolios) in
order for them to be able to:
a) reflect on their development of graduate attributes across the LLB programme;
b) provide evidence for how and where graduate attributes were developed across the
curriculum; and
c) improve their skills and marketability for potential employers, funders and work
network.

11. LEARNING UNIT GUIDE

UNIT 1

OVERVIEW (UNIT 1)

The purpose of Unit 1 is to introduce students to the various sources of criminal law,
the position of criminal law in the legal framework as well as the difference between a
crime and delict. The elements of crime are also briefly discussed as well as various
important definitions including the definitions of substantive law, public law, criminal
law and crime.

Learning unit notional hours

It will take the average student about 8 hours to master the contents of this learning
unit.

Learning outcomes

On completion of this Unit, students should be able to:

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1. State and identify the sources of the criminal law.
2. Give an outline of the placement of the criminal law in the total legal
framework.
3. Distinguish between substantive and formal law.
4. Define public law, criminal law as well as a crime.
5. Distinguish between criminal law, criminology and penology.
6. Compare crimes with delicts.
7. Map out the hierarchy of the courts.
8. Explain what the system of precedents involves.
9. Map out the general elements of crime
10. Give an outline of how criminal law advances the course of social justice.
11. Identify all the relevant aspects in the name of a criminal case.
12. Summarise a court case.

Unit specific study material

Unit 1 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises himself/herself with unit specific study
material.

Preparation material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 3-9; 25-30

OR:
Textbook: Snyman 2014: 3-10; 29-35

Content material

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In addition to the study guide, the following material needs to be studied in this
learning unit:
Textbook: Snyman 2020: 3-9; 25-30
OR
Textbook: Snyman 2014: 3-10; 29-35
Cases: None

Learning and assessment activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 1 will be discussed during tutorial
sessions. The following may serve as an examples:

o Discuss the role that criminal law plays in the advancement of social justice.
o Distinguish between a crime and delict.
o Summarise / analyse the following court case ….

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Community engagement;
o Written communication.

UNIT 2

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 OVERVIEW (UNIT 2)

In Unit 2, the principle of legality, students will be introduced to the principle of legality
and compliance thereof as precondition for the conviction of any accused. The various
elements of the definition of this principle will be discussed as well as the supporting
provisions provided by the Constitution of the Republic of South Africa, 1996.

Learning unit notional hours

It will take the average student about 8 hours to master the contents of this learning
unit.

Learning outcomes

On completion of this Unit, the student will be able to:

1. Explain the principle of legality as prerequisite for convicting an accused

person.
2. Discuss Snyman’s definition of legality.
3. Explain the meaning of nullum crimen sine lege and nullum crimen sine poena
legali.
4. Distinguish between the two types of crimes in the South African criminal law
and give an example of each.
5. Discuss the support provided to the principle of legality by the Constitution of
the Republic of South Africa, 1996.
6. Apply his/her knowledge about the principle of legality and relevant case law
towards solving practical problems that require an analysis and evaluation of
criminal liability.

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 Unit specific study material

Unit 2 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises himself/herself with unit specific study
material.

Preparation material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 31-42

OR
Textbook: Snyman 2014: 35-49

Content material

In addition to the study guide, the following material needs to be studied in this
learning unit:

Textbook: Snyman 2020: 31-42

OR

Textbook: Snyman 2014: 35-49

Cases: Director of Public Prosecutions v Masiya 2007 JDR 0330 (CC)

Learning and assessment activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

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 Questions to Consider During This Unit

Typical examination and test questions for Unit 2 will be discussed during tutorial
sessions. The following may serve as examples:

o Does the Constitution of the Republic of South Africa, 1996 support the principle
of legality? Motivate your answer.
o Taelo is an ambitious young man who, during daytime, works in an office of a
state department under the supervision of the not so dynamic civil servant,
Lazy. While Lazy enjoys his sandwich in the tea-room during lunch-hour, Taelo
takes the foam rubber cushion of his chair and allows it to absorb the contents
of a full water bottle. The cushion is replaced cautiously.

As Lazy settles behind his desk after the lunch-hour, he discovers that his
trousers are soaking wet. Lazy lays a charge against Taelo for contravening a
clause in the Civil Service Personnel Code. The Personnel Code states that:
“No civil servant may impede any other civil servant in the exercising of his
duties.” It is proven that due to the actions of Taelo, Lazy could not work the
rest of the day.

Write an argument wherein you indicate whether Taelo has committed a crime
or not. Do not refer to case law.

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving
o Written communication

UNIT 3

OVERVIEW (UNIT 3)

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In Unit 3, the focus is on the conduct-element of crime. Students will be introduced to
the definition of conduct, the various forms of conduct (including a commission as well
as an omission) as well as the various defences that can be raised against this element
in order to escape criminal liability.

Learning unit notional hours

It will take the average student about 10 hours to master the contents of this learning
unit.

Learning outcomes

On completion of Unit 3, the student will be able to:

1. Discuss the 4 elements in the definition of conduct.
2. Distinguish between a commissio and an omissio.
3. Discuss the instances where there are legal obligations on a person to act.
4. Compare sane and insane automatism.
5. Map out the defences that can be raised against the element of conduct.
6. Explain the term “liability based on prior voluntary conduct”/antecedent liability.
7. Apply his/her knowledge about the conduct-element and relevant case law
towards solving practical problems that require an analysis and evaluation of
criminal liability.

Unit specific study material

Unit 3 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises himself/herself with unit specific study
material.

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 Preparation material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 43-52

OR
Textbook: Snyman 2014: 51-62

Content material

In addition to the study guide, the following material needs to be studied in this
learning unit:

Textbook: Snyman 2020: 43-52

OR

Textbook: Snyman 2014: 51-62

Cases: S v Fernandez 1966 (2) SA 259 (A)

S v B and Another 1994 (2) SACR 237 (OK)

S v Russel 1967 (3) SA 739 (N)

Minister of Police v Ewels 1975 (3) SA 590 (A)

R v Dlamini 1955 (1) SA 120 (T)

S v Johnson 1969 (1) SA 201 (A)

S v Chretien 1981 (1) SA 1097 (A)

S v Van Rensburg 1987 (3) SA 35 (T)

R v Schoonwinkel 1953 (3) SA 136 (C)

Learning and assessment activities

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You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 3 will be discussed during tutorial
sessions. The following may serve as an example:

o CHOOSE ONE CORRECT ANSWER FROM THE DATABANK BELOW

1. Conduct is one of the general elements of a crime that the state must prove
... before an accused person can be convicted of a crime.

2. The conduct element of a crime is defined as any, voluntary, personal behaviour, which
includes ...

3. An omission by a natural or legal person is only punishable if there is ...

4. The general rule is that there is a legal duty on a person to act positively ...

5. In criminal law an act is voluntary if it is controlled by the will. Factors which exclude
“volunteerism” are ...

6. In R v Dlamini 1955 the accused was acquitted because the state could not prove that the
accused performed a voluntary act. The accused stabbed the deceased three times, but he
was half-asleep and acted ... without intention, volition or motive.

7. In S v Chretien 1981 the court held that a person who is so drunk that he can only perform
involuntary muscle movements, similar to that of a ..., cannot be convicted of a crime,
because the state cannot prove that the behaviour is a voluntary act.

8. In S v Van Rensburg 1987 the court acquitted the accused, because the state could not
prove that he acted voluntarily. The defence of ... succeeded, since an unexpected sudden
fall in the accused’s blood-sugar resulted in drowsiness that affected his driving abilities.

DATABANK OF ANSWERS: CHOOSE ONE ANSER PER QUESTION

A if the legal convictions of the community requires him/her to do so.
B mechanically
C beyond reasonable doubt
D sleepwalker
E forces of nature, sane and insane automatism and absolute force.
F positive conduct as well as omissions by natural (human) and legal persons,
such as companies.
H a legal duty to act positively.

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I sane automatism

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving;
o Written communication.

UNIT 4

OVERVIEW (UNIT 4)

In Unit 4, the focus is on the element of causation. The difference between factual and
legal causation is discussed as well as the single theory to determine factual causation
and the various theories to determine legal causation.

Learning unit notional hours

It will take the average student about 10 hours to master the contents of this learning
unit.

Learning outcomes

On completion of this Unit, the student will be able to:

1. Compare formally and materially defined crimes.

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2. Critically discuss the theory to determine factual causation namely the
conditio sine qua non test.
3. Explain the purpose of legal causation.
4. Map out the various theories to determine legal causation.
5. Explain the meaning of novus actus interveniens.
6. Discuss the requirements for an event to qualify as a novus actus
interveniens.
7. Apply his/her knowledge about the causation-element and relevant case law
towards solving practical problems that require an analysis and evaluation
of criminal liability.

Unit specific study material

Unit 4 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises himself/herself with unit specific study
material.

Preparation material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 65-78

OR
Textbook: Snyman 2014: 79-94

Content material

In addition to the study guide, the following material needs to be studied in this
learning unit:

25
Textbook: Snyman 2020: 65-78
OR

Textbook: Snyman 2014: 79-94

Cases: S v Mokgethi 1990 (1) SA 32 (A)

S v Daniels 1983 (3) SA 275 (A)

S v Williams 1986 (4) SA 1188 (A)

S v Tembani 2007 (2) SA 291 (SCA)

Learning and assessment activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 4 will be discussed during tutorial
sessions. The following may serve as an example:

o Lawrence is a safety representative at Fabulous Fashions. He receives

information regarding an open, live, electric wire in the workplace that holds a
risk of danger to all employees. Lawrence has a busy daily schedule and as a
result, neglects to inform the other employees of the dangerous electric wire.
This leads to the electrocution of Felicity. Felicity is transported to hospital
where they connect her to a respirator and declare her brain dead. Two weeks
later, after consultation with Felicity’s family, the doctor switches off the
respirator and Felicity dies.

Answer the following questions:

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 1. Does the behaviour of Lawrence qualify as “conduct” (comply with the
conduct-element of crime)? Motivate your answer.

2. Is Lawrence the factual and legal cause of Felicity’s death? Motivate your
answer with reference to case law.

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving;
o Written communication.

UNIT 5

OVERVIEW (UNIT 5)

Unit 5 deals with the fourth element of a crime, namely unlawfulness. After having
discussed the meaning of unlawfulness, the focus will be on the various grounds of
justification that can be raised as a defence against unlawfulness and the
requirements to succeed with each one of these grounds.

Learning unit notional hours

It will take the average student about 16 hours to master the contents of this learning
unit.

Learning outcomes

27
On completion of this Unit, the student will be able to:

1. Explain the meaning of unlawfulness and refer to Snyman’s approach in

his/her description.
2. Compare the test to determine unlawfulness with the test to determine
negligence.
3. Map out the various grounds of justification that can be raised against the
element of unlawfulness.
4. Critically discuss the requirements in order to succeed with each one of
these grounds of justification.
5. Distinguish between private defence and necessity.
6. Distinguish between private defence and putative private defence.
7. Compare the South African law on private defence raised in cases of
domestic violence with the legal position in Canada.
8. Reflect on the transformative effect of the Bill of Rights on the defence of
disciplinary chastisement.
9. Reflect on the transformative effect of the Bill of Rights on the defence of
public authority.
10. Apply his/her knowledge about the unlawfulness-element and relevant case
law towards solving practical problems that require an analysis and
evaluation of criminal liability.

Unit specific study material

Unit 5 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises himself/herself with unit specific study
material.

Preparation material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 79-122

OR

28
Textbook: Snyman 2014: 95-114
Textbook: Snyman 2014: 114-122; 235-236
Textbook: Snyman 2014: 60-62; 134-136
Textbook: Snyman 2014: 137-138; 128-134; 122-127; 139-140; 127-128.

Content material

In addition to the study guide, the following material needs to be studied in this
learning Unit:
Textbook: Snyman 2020: 79-122
OR
Textbook: Snyman 2014: 95-114; 114-122; 235-236; 60-62; 134-136; 137-138; 128-
134; 122-127; 139-140 and 127-128.
Cases: S v Steyn 2010 (1) SACR 411 (SCA)
Ex parte the Minister of Justice: In re S v Van Wyk 1967 (1) SA 488 (A)
S v Goliath 1972 (3) SA 1 (A)
S v Mandela 2001 (1) SACR 156 (K)
S v Canestra 1951 (2) SA 317 (A)
S v Mohale 1999 (2) SACR 1 (W)
S v Williams 1995 (3) SA 632 (CC)
YG v S 2018 (1) SACR 64 (GJ)
Freedom of Religion South Africa (FOR SA) v Minister of Justice and
Constitutional Development 2019 (11) BCLR 1321 (CC)
S v Nkwanyana 2003 (1) SACR 67 (W)
S v Kgogong 1980 (3) SA 600 (A)

Learning and assessment activities

29
You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 5 will be discussed during tutorial
sessions. The following may serve as an example:

o Lerato’s disappointed parents consider to discipline her and approach you for
legal advise. Briefly explain to them the transformative effect of the Bill of Rights
on the defence of disciplinary chastisement.

o Hero walks down the street when he suddenly hears someone shouting for
help. He turns around and sees how Rex assaults his girlfriend. Hero runs
towards Rex and knocks him out by hitting him once with the fist. A few days
later, Rex opens a charge of assault against Hero.

Answer the following questions:

1. State the ground of justification (defence) that Hero can raise as defence?
2. State all the requirements to be met in order to succeed with the defence
stated above.
3. Will Hero succeed with this defence?
4. Explain the difference between private defence and necessity.

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving;

30
 o Written communication.

UNIT 6

OVERVIEW (UNIT 6)

Unit 6 deals with the fifth element of a crime namely criminal accountability/capacity.
The test for criminal capacity is discussed as well as the effect of diminished criminal
capacity. The four defences that can be raised against criminal capacity also enjoy
attention.

Learning unit notional hours

It will take the average student about 16 hours to master the contents of this learning
unit.

Learning outcomes

On completion of this Unit, the student will be able to:

1. Distinguish between involuntary conduct and lack of criminal capacity.

2. Discuss the effect of both criminal incapacity and diminished accountability on
criminal liability.
3. Explain the test applied to determine criminal capacity.
4. Map out the various defences that can be raised against the element of criminal
capacity.
5. Critically discuss the future existence of provocation as defence excluding criminal
capacity.
6. Critically discuss the legal position regarding intoxication as a defence in criminal
proceedings.
7. Compare the South African law regulating provocation as defence excluding
criminal capacity with the legal position in Canada.

31
8. Compare the South African law regulating intoxication with the legal position in
Canada.
9. Apply his/her knowledge about the element of criminal capacity and relevant case
law towards solving practical problems that require an analysis and evaluation of
criminal liability.

Unit specific study material

Unit 6 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises himself/herself with unit specific study
material.

Preparation material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 136-139; 156-158

Textbook: Snyman 2020: 149-156
Textbook: Snyman 2020: 192-204
Textbook: Snyman 2020: 139-149; 204-208
OR

Textbook: Snyman 2014: 155-164; 173-175

Textbook: Snyman 2014: 164-172

Textbook: Snyman 2014: 216-230

Textbook: Snyman 2014: 230-235

Content material

32
In addition to the study guide, the following material needs to be studied in this
learning unit:

Textbook: Snyman 2020: 136-139; 156-158

Textbook: Snyman 2020: 149-156
Textbook: Snyman 2020: 192-204
Textbook: Snyman 2020: 139-149; 204-208
OR

Textbook: Snyman 2014: 155-164; 173-175; 164-172; 216-230 and 230-235.

Cases: S v Mnisi 2009 (2) SACR 227 (SCA)

S v Pietersen 1983 (4) SA 904 (E)

S v Kavin 1978 (2) SA 731 (W)

S v Mcbride 1979 (4) SA 313 (W)

S v Johnson 1969 (1) SA 201 (A)

S v Chretien 1981 (1) SA 1097 (A)

S v September 1996 (1) SACR 325 (A)

S v Campher 1987 (1) SA 940 (A)

S v Wiid 1990 (1) SACR 561 (A)

S v Moses 1996 (1) SACR 701 (K)

S v Eadie 2002 (1) SACR 663 (SCA)

Learning and assessment activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

33
 Questions to Consider During This Unit

Typical examination and test questions for Unit 6 will be discussed during tutorial
sessions. The following may serve as an example:

o Discuss the development of the South African law on provocation as defence

in criminal proceedings and briefly compare to the legal position in Canada.
o On 1 January 2020 Jack Daniels attends a party and voluntarily consumes
alcohol. On his way home he causes an accident as a result of which 1 person
dies and 1 is seriously injured. Discuss Jack’s criminal liability in the following
scenarios and briefly motivate your answer:

1. Where the evidence reveals that Jack was drunk to the state (degree) that
he was unable to perform a voluntary act.

2. Where the evidence reveals that Jack was drunk to the state (degree) that
he was only unable to form intention.

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving;
o Written communication.

UNIT 7

OVERVIEW (UNIT 7)

34
The last element of crime is discussed in Unit 7. The focus of the module is on fault in
both the form of intention and negligence. The various forms of intention are discussed
as well as the objective test to determine negligence. Defences that can be raised
against the element of fault also enjoy attention.

Learning unit notional hours

It will take the average student about 12 hours to master the contents of this learning
unit.

Learning outcomes

On completion of this Unit, the student will be able to:

1.Define intention as well as the test to determine negligence.

2. Compare the various forms of intention and provide an example of each.
3. Distinguish between negligence and dolus eventualis.
4. Explain the defences that can be raised against the element of fault as well as the
requirements in order to succeed with these defences.
5. Critically discuss the effect of the belief in witchcraft on criminal liability.
6. Distinguish between error of fact and aberratio ictus.
7. Explain the meaning and purpose of strict liability offences.
8. Apply his/her knowledge about the element of fault and relevant case law towards
solving practical problems that require an analysis and evaluation of criminal liability.

Unit specific study material

35
Unit 7 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises himself/herself with unit specific study
material.

Preparation material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 159-170

Textbook: Snyman 2020: 170-172; 180-182
Textbook: Snyman 2020: 175-180
Textbook: Snyman 2020: 182-192
Textbook: Snyman 2020: 208-212
OR
Textbook: Snyman 2014: 176-187
Textbook: Snyman 2014: 187-189; 199-204

Textbook: Snyman 2014: 193-198

Textbook: Snyman 2014: 204-216

Textbook: Snyman 2014: 236-241

Content material

In addition to the study guide, the following material needs to be studied in this
learning Unit:

Textbook: Snyman 2020: 159-170

Textbook: Snyman 2020: 170-172; 180-182
Textbook: Snyman 2020: 175-180
Textbook: Snyman 2020: 182-192
Textbook: Snyman 2020: 208-212
OR:

36
Textbook: Snyman 2014: 176-187; 187-189; 199-204; 193-198; 204-216 and 236-
241

Cases: S v Hartman 1975 (3) SA 532 (K)

S v Makgatho 2013 (2) SACR 13 (SCA)

S v De Blom 1977 (3) SA 513 (A)

S v Mkansi 2004 (1) SACR 281 (T)

S v Raisa 1979 (4) SA 541 (O)

S v Bernardus 1965 (3) SA 287 (A)

S v Ngema 1992 (2) SACR 615 (D)

S v Xaba and Others 2018 (2) SACR 387 KZP

Amalgamated Beverage Industries Natal (Pty) Ltd v The City Council of the
City of Durban 1992 (2) PH H 34 (N)

Learning and assessment activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 7 will be discussed during tutorial
sessions. The following may serve as an example:

o Distinguish between the following:

 error of fact and aberratio ictus;
 negligence and dolus eventualis.

o Discuss the effect of the belief in witchcraft on criminal liability.

37
 o David wants to kill Tau. He knows Tau takes Bonolo, his son, to school every
morning. David parks near the school and waits for Tau. David notices Tau
driving in his car towards him and sees Bonolo is sitting behind him on the back
seat. David knows that he is not an accurate shooter, but still shoots at Tau
through the windscreen of his car. He misses Tau, but kills Bonolo on the back
seat. Discuss the criminal liability of David.

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving;
o Written communication.

UNIT 8

OVERVIEW (UNIT 8)

The purpose of this unit is to introduce students to the various role-players in crime
and their criminal liability. Before discussing the specific crimes that can be committed
against the person, state, community and property, it is important to know that various
role-players can be involved in each one of these crimes.

Learning unit notional hours

It will take the average student about 10 hours to master the contents of this learning
unit.

38
 Learning outcomes

After completing Unit 8, students will be able to:

 Identify the different role-players/participants in a crime in a given set of facts.

 Explain the rules regarding the doctrine of common purpose and apply it to a given
set of facts.

 Discuss the criminal liability of the joiner-in.

Unit-Specific Study Material

Unit 8 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises him/herself with unit specific study
material.

Preparation Material

Preparation material students need to work through before class:

Textbook: Snyman 2020:219-240

OR

Textbook: Snyman: 2014 (249-274).

39
 Content Material

In addition to the study guide, the following material needs to be studied for Unit 8:

Textbook: Snyman 2020:219-240

OR

Textbook: Snyman: 2014 (249-274).

Cases:

S v Thebus 2003 (6) SA 505 (CC); 2003 (2) SACR 319 (CC)

S v Molimi 2006 (2) SACR 8 (SCA)

S v Tsotetsi 2019 (2) SACR 594 (WCC)

S v Terblanche 2011 (1) SACR 77 (ECG)

Learning and Assessment Activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 8 will be discussed during tutorial
sessions. The following may serve as an example:

o Dolla, Daisy and Daffney plan a robbery at a chocolate factory. The morning of
the planned robbery, they arm themselves with pistols and depart to the
factory. On arrival, Daffney is instructed to wait in the car and guard the factory.

40
 Dolla and Daisy storm inside the factory and instruct the owner, Mr. Cadbury,
to hand all the money in the factory to them. When he refuses, Dolla shoots
him dead. His shocked wife, Candy, immediately puts all the money into a bag
and hands it to Dolla. Meanwhile, Daisy helps herself to some chocolates and
collects a few boxes with the purpose of removing them from the factory.

Dolla, Daisy and Daffney are only arrested the next morning. It seems as if
Dolla’s neighbour, Sarie Soettand, assisted them in hiding the chocolates.

Having read the above, answer the following questions:

1. May Daffney be held criminally liable for the murder of Mr. Cadbury?
Motivate your answer without reference to case law.

2. State and explain the approach that is currently followed in South Africa with
regards to roleplayers like Sarie Soettand.

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving;
o Written communication.

UNIT 9

OVERVIEW (UNIT 9)

41
The purpose of this unit is to introduce students to the incomplete crimes of attempt,
conspiracy and incitement. Before discussing the specific crimes that can be
committed against the person, state, community and property, it is important to gain
knowledge about what the state must prove to ensure a conviction of attempt to
commit these crimes.

Learning unit notional hours

It will take the average student about 10 hours to master the contents of this learning
unit.

Learning Outcomes

After completing Unit 9 students will be able to:

 Define the incomplete crimes of attempt, conspiracy and incitement.

 Identify the different forms of attempt.
 Map out the general elements of the incomplete crimes of attempt, conspiracy and
incitement.
 Distinguish between the incomplete crimes of attempt, conspiracy and incitement.
 Apply his/her knowledge about incomplete crimes and relevant case law towards
solving practical problems that require an analysis and evaluation of criminal liability.

Unit-Specific Study Material

42
Unit 9 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises him/herself with unit-specific study
material.

Preparation Material

Preparation material students need to work through before class:

Textbook: Snyman 2020:241-263

OR

Textbook: Snyman: 2014 (275-296).

Content Material

In addition to the study guide, the following material needs to be studied for Unit 9:

Textbook: Snyman 2020:241-263

OR

Textbook: Snyman: 2014 (275-296).

Cases:

S v Phiri 2014 (1) SACR (GNP)

R v Schoombie 1945 AD 545

R v Davies 1956 (3) SA 52 (A)

S v Sibuyi 1993 (1) SACR 235 (A)

R v Dick 1969 (3) SA 267 (R)

43
 Learning and Assessment Activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 9 will be discussed during tutorial
sessions. The following may serve as an example:

o Explain whether the person whose name is underlined is guilty of attempted

theft. Motivate your answer.
 Jealous makes a mistake of fact, he thinks a wild cat (that does not
belong to anyone and can thus not be stolen) is domesticated and
belongs to Manyanya. Jealous takes this wild cat home with the intention
to keep it permanently.

o Distinguish between the following:

 Conspiracy and common purpose;
 Incitement and vicarious perpetration.

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving;
o Written communication.

44
UNIT 10

OVERVIEW (UNIT 10)

The purpose of this unit is to introduce students to specific elements of selected crimes
that can be committed against a person. The unit furthermore aims to enable students
to solve problems by applying their knowledge and skills to authentic scenarios
involving crimes that can be committed against a person. Emphasis is also placed on
the influence of constitutional rights and values on the development of the definition of
rape.

Learning unit notional hours

It will take the average student about 16 hours to master the contents of this learning
unit.

Learning Outcomes

45
 After completing Learning unit 10, students will be able to give a definition for
and analyse the specific elements of the following crimes that can be committed
against a person:

 Murder;

 Culpable homicide;

 Assault:

 Common assault;

 Assault with intent to do grievous bodily harm; and

 Sexual assault;

 Rape;
 Crimen iniuria;
 Criminal defamation; and
 Kidnapping.

Students will also be able to:

 In a given set of facts, identify the different crimes that can be committed
against the person as well as the possible defences that can be raised by
an accused in the given scenario.
 Identify and discuss the various offences that can be committed against
the person in terms of the Witchcraft Suppression Act 3 of 1957.
 Critically discuss the effect of criminalising witchcraft within cultural
context.

Unit-Specific Study Material

Unit 10 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of

46
each student to ensure that he/she familiarises him/herself with unit-specific study
material.

Preparation Material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 387-391; 391-392; 395-401; 320-327; 307-319; 407-412;

412-415; 417-420.

OR

Textbook: Snyman: 2014 (437-441); (442-443); (447-454); (360-368); (343-358);

(461-467); (467-469); (471-474).

Content Material

In addition to the study guide, the following material needs to be studied for Unit 10:

Textbook: Snyman 2020: 387-391; 391-392; 395-401; 320-327; 307-319; 407-412;

412-415; 417-420.

OR

Textbook: Snyman: 2014 (437-441); (442-443); (447-454); (360-368); (343-358);

(461-467); (467-469); (471-474).

Cases:

S v Nkwanyana 2003 (1) SACR 67 (W)

Ex parte the Minister of Justice: In re S v Grotjohn 1970 (2) SA 355 (C)

S v Mshumpa and Another 2008 (1) SACR 126 E

S v Burger 1975 (4) SA 877 (A)

47
S v Van As 1976 (2) SA 921 (A)

S v Matle 1984 (3) SA 748 (NC)

S v Smith 2003 (2) SACR 135 (SCA)

S v Willemse 2011 (2) SACR 531 (ECG)

S v SM 2013 (2) SACR 111 (SCA)

S v Holiday 1927 CPD 395

S v Momberg 1970 (2) SA 68 (C)

S v Sharp 2002 (1) SACR 360 (Ck)

S v Hoho 2009 (1) SACR 276 (SCA)

S v Mellors 1990 (1) SACR 347 (W)

Learning and Assessment Activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 10 will be discussed during tutorial
sessions. The following may serve as an example:

o Identify and discuss the various offences that can be committed against the
person in terms of the Witchcraft Suppression Act 3 of 1957.

o State the crime/crimes, if any, of which you will prosecute X in each one of the
following scenarios.Briefly motivate your answers:

48
  X is aware of his HIV-positive status and while withholding this information
from Y, engages in unprotected sexual intercourse with her, with the
consent of Y.
 X penetrates the genitals of Y without her consent. During this act of
penetration, he stops, turns Y on the side and then also penetrates her anus.
 X uses an object resembling the genital organs of an animal to force into the
mouth of Y, without his consent.
 X uses a stick to hit Y on the head. Y gets 10 stitches.
 X threatens Y with immediate and deadly violence – not knowing that Y
cannot hear him.

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving;
o Written communication.

UNIT 11

OVERVIEW (UNIT 11)

The purpose of this unit is to introduce students to the crime of public violence as
example of a crime that can be committed against the state. The unit furthermore aims
to enable students to solve problems by applying their knowledge and skills to
authentic scenarios involving this crime.

Learning unit notional hours

It will take the average student about 6 hours to master the contents of this learning
unit.

49
 Learning Outcomes

After completing Unit 11, students will be able to:

 Define the crime of Public Violence.

 Map out the elements of Public Violence.

In a given set of facts, identify the crime of Public Violence as well as the possible defences
that can be raised by an accused in the given scenario.

Unit-Specific Study Material

Unit 11 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises him/herself with unit-specific study
material.

Preparation Material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 277-279

OR

Textbook: Snyman: 2014 (311-314).

50
 Content Material

In addition to the study guide, the following material needs to be studied for Unit 11:

Textbook: Snyman 2020: 277-279

OR

Textbook: Snyman: 2014 (311-314).

Case:

S v Mlotshwa 1989 (4) SA 787 (W)

Learning and Assessment Activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 11 will be discussed during tutorial
sessions. The following may serve as an example:

o Summarise the case of S v Mlotshwa 1989 (4) SA 787 (W) with reference to:
 The facts;
 The legal question;
 The decision of the court; and
 The reason for the court’s decision.

51
 Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving

UNIT 12

OVERVIEW (UNIT 12)

The purpose of this unit is to introduce students to the common law offence of
abduction as an example of a crime that can be committed against the family. The
possible conflict between the custom “ukuthwala” and criminal law also enjoy attention.
The unit furthermore aims to enable students to solve problems by applying their
knowledge and skills to authentic scenarios involving this crime.

Learning unit notional hours

It will take the average student about 8 hours to master the contents of this learning
unit.

Learning Outcomes

52
 After completing Learning unit 12, students will be able to:

 Define the crime of common law abduction.

 Analyse the elements of common law abduction.

 Identify common-law abduction in a given set of facts.

 Explain the legal position of the custom ukuthwala as defence in criminal proceedings.

Unit-Specific Study Material

Unit 12 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises him/herself with unit-specific study
material.

Preparation Material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 351-354

OR

Textbook: Snyman: 2014 (395-399).

Content Material

53
In addition to the study guide, the following material needs to be studied for Unit 12:

Textbook: Snyman 2020: 351-354

OR

Textbook: Snyman: 2014 (395-399).

Cases:

S v Sashi 1976 (1) SA 446 (N)

S v Jezile 2015 (2) SACR 452 (WCC)

Learning and Assessment Activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 12 will be discussed during tutorial
sessions. The following may serve as an example:

o Distinguish between common law abduction and kidnapping.

o Does the custom of ukuthwala serve as defence in criminal
proceedings?
o Choose the most appropriate answer: The following statement/s on the
legal position of the crime of common law abduction is/are incorrect:

 the crime prohibits the unlawful and intentional removal of an

unmarried child of under 18 years old from the parents’ or
guardian’s control without their permission;

54
  the crime represents a wrong committed against the parents or
guardian of the minor;
 the minor’s consent to be removed from the control of the
parents is no defence;
 the legal interest that is protected by this crime is the parents’
exercise of control over the minor and the parents’ right to
consent to the minor’s marriage;
 when an adult man removes a 17-year-old boy for a substantial
time from his parents’ control for homosexual practices and the
adult engages in consensual anal sexual penetration with the
boy, the crime of common law abduction is not committed;
 Abduction cannot be committed with respect to a widow or
divorced child under the age of 18 years;
 None of the above;
 (e) and (f).

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving;
o Written communication.

UNIT 13

OVERVIEW (UNIT 13)

The purpose of this unit is to introduce students to crimes that can be committed
against the administration of justice. The unit furthermore aims to enable students to
solve problems by applying their knowledge and skills to authentic scenarios involving
the crimes of defeating and obstructing the course of justice and perjury.

55
 Learning unit notional hours

It will take the average student about 8 hours to master the contents of this learning
unit.

Learning Outcomes

After completing Learning unit 13, students will be able to:

 Define the crimes of defeating/obstructing the administration of justice as well as

perjury.

 Analyse the elements of the above-mentioned crimes.

 Distinguish between defeating and obstructing the administration of justice.

 Distinguish between common law perjury and statutory perjury.

 Identify the offences against the administration of justice in a given set of facts.

Unit-Specific Study Material

Unit 13 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises him/herself with unit specific study
material.

56
 Preparation Material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 292-296; 296-300

OR

Textbook: Snyman: 2014 (327-331); (332-335).

Content Material

In addition to the study guide, the following material needs to be studied for Unit 13:

Textbook: Snyman 2020: 292-296; 296-300

OR

Textbook: Snyman: 2014 (327-331); (332-335).

Cases:

S v Bazzard 1992 (1) SACR 302 (NC)

R v Malianga 1962 (3) SA 940 (SR)

R v Beukman 1950 (4) SA 261 (O)

Learning and Assessment Activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

57
 Questions to Consider During This Unit

Typical examination and test questions for Unit 13 will be discussed during tutorial
sessions. The following may serve as an example:

o Distinguish between common law perjury and statutory perjury.

o Discuss the differences between (compare) S v Malianga 1962 (3) SA 940 (SR)
and R v Beukman 1950 (4) SA 261 (O) pertaining to the:
 the courts’ decisions and
 the reasons for the courts’ decisions.

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

o Academic competence;
o Critical thinking;
o Problem solving;
o Written communication.

UNIT 14

OVERVIEW (UNIT 14)

The purpose of this unit is to introduce students to crimes that can be committed
against property. The unit furthermore aims to enable students to solve problems by
applying their knowledge and skills to authentic scenarios involving the crimes that
can be committed against property.

Learning unit notional hours

58
It will take the average student about 16 hours to master the contents of this learning
unit.

Learning Outcomes

After completing Learning unit 14, students will be able to give a definition for
and analyse the elements of the following crimes that can be committed against
property:

 Theft;

 Robbery;

 Receiving stolen property/statutory receiving;

 Fraud;

 Extortion;

 Malicious injury to property

 Arson; and

 Housebreaking.

Students will also be able to identify the different crimes against property in a
given set of facts.

Unit-Specific Study Material

Unit 14 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of
each student to ensure that he/she familiarises him/herself with unit specific study
material.

59
 Preparation Material

Preparation material students need to work through before class:

Textbook: Snyman 2020: 421-436; 448-452; 452-454; 458; 461-471; 369-371; 475-
478; 478-479; 479-486.

OR

Textbook: Snyman: 2014: (475-502); (508-512); (512-514; 519-521); (523-532); (532-

535); (417-419); (539-541); (542); (543-550).

Content Material

In addition to the study guide, the following material needs to be studied for Unit 14:

Textbook: Snyman 2020: 421-436; 448-452; 452-454; 458; 461-471; 369-371; 475-
478; 478-479; 479-486.

OR

Textbook: Snyman: 2014: (475-502); (508-512); (512-514; 519-521); (523-532); (532-

535); (417-419); (539-541); (542); (543-550).

Cases:

S v Cele 1993 (2) SACR 52 (N)

S v Mostert and Another 2010 (1) SACR 223 (SCA)

S v Yolelo 1981 (1) SA 1002 (A)

S v Sithole 1981 (1) SA 1186 (N)

Ex parte Minister of Justice: In re S v Seekoei 1984 (4) SA 690 (A)

60
S v Myeza 1985 (4) SA 30 (T)

R v Dyonta 1935 AD 52

S v Mngqibisa 2008 (1) SACR 92 (SCA)

R v N 1955 (2) SA 647 (T)

S v J 1980 (4) SA 113 (E)

R v Bowden 1957 (3) SA 148 (T)

R v Malamu Nkatlapaan 1918 TPD 424

R v Mavros 1921 AD 19

S v Dalindyebo 2016 (1) SACR 329 (SCA)

S v Small 2005 (2) SACR 300 (C)

S v Mavela 2008 (2) SACR 608 (Ck)

S v Temmers 1994 (1) SACR 357 (C)

Learning and Assessment Activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 14 will be discussed during tutorial
sessions. The following may serve as an example:

o Terry, the traffic officer, rigs up a tent for the day where he and his colleague is
on duty. Unlucky is the first driver that exceeds the speed limit on the specific

61
 day and is furious when he is stopped by Terry. When Terry approaches him,
Unlucky uses all the swear words that he knows to insult Terry in front of his
wife, terrible twins and mother-in-law sitting in the back seat of the car. This
also happens in the presence of Terry’s colleague.

Terry hands over a fine to Unlucky. When he walks away, Unlucky gets out of
his car and approaches the tent. He pulls away the door of the tent and enters
it. Inside, Unlucky finds an expensive watch and half a bottle of brandy that he
appropriates for himself. Just before he leaves the tent, het sets fire to the tent.

By the time Terry realises that his tent is on fire, Unlucky and his family is long
gone. Inside his car, Unlucky spoils his wife with the stolen watch. His wife
suspects that the watch might be stolen but accepts it anyway. He then also
takes his own watch that he received as a gift for his birthday and offers it for
sale to his mother-in-law. Unlucky believes that the watch is worth only R200
but informs his mother-in-law that it is worth R2 000. Unbeknown to Unlucky,
the watch is worth more than R2 000. His mother-in-law buys the watch for
R2000.

The next day Unlucky phones Terry and informs him that he will tell Terry’s
boss about the bottle of brandy that he found inside the tent (during working
hours) if Terry attempts to lay any charges against him (Unlucky). Out of fear
of losing his job, Terry obeys Unlucky’s instruction and do not open any charges
against him.

Having read the above, answer the following questions:

1.1 Indicate whether Unlucky can be successfully prosecuted of the following crimes
or not. Motivate your answers and only where requested, refer to and discuss the
applicable case law:

 Housebreaking with the intent to commit theft?

 Arson?
 Crimen Iniuria? (Also refer to and discuss the applicable case law).

1.2 Only state the crime that Unlucky committed, if any, with regards to the following:
 The selling of the watch to his mother-in-law.
 The phone call that he made to Terry.

1.3 State and define the common law crime that was committed by Unlucky’s wife.

Student Graduate attributes developed in this unit

The following student graduate attributes are developed in this Unit:

62
 o Academic competence;
o Critical thinking;
o Problem solving;
o Written communication.

UNIT 15

OVERVIEW (UNIT 15)

The purpose of Unit 15 is to familiarise students with the drafting of a charge sheet.
Having discussed the general elements of crime as well as the specific elements of
the selected crimes that can be committed against the person, state, community and
property, students will be introduced to the task of drafting a proper charge sheet.

Learning unit notional hours

It will take the average student about 6 hours to master the contents of this learning
unit.

Learning outcomes

On completion of this Unit, students should be able to:

In a given set of facts, identify the different crimes that can be committed against
the person, state, community or property and draft a proper charge sheet for
purposes of prosecution.

Unit specific study material

Unit 15 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of

63
each student to ensure that he/she familiarises himself/herself with unit specific study
material.

Preparation material

Preparation material students need to work through before class:

Guide: Unit 15

Content material

Guide: Unit 15

Learning and assessment activities

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

Questions to Consider During This Unit

Typical examination and test questions for Unit 15 will be discussed during tutorial
sessions. The following may serve as an example:

o Draw up a charge sheet which sets out the correct charge against .....

(based on the given set of facts provided in the test / assignment)

(You are thus expected to apply your theoretical knowledge of Criminal Law in drawing
up a charge sheet for one of the offences dealt with in this module (practical
application).

64
 Student Graduate attributes developed in this unit

The following student graduate attribute is developed in this Unit:

o Academic competence;
o Problem solving;
o Critical thinking;
o Written communication.

12. CONSULTATION HOURS

The consultation hours of your lecturer in this module appear on Blackboard.

However, you are advised to schedule an appointment with your lecturer before you
visit him/her. Such an appointment can be scheduled for any time that will suit the
student and the lecturer.

65
 LEARNING UNIT 1: INTRODUCTION

The purpose of Unit 1 is to introduce students to the various sources of criminal law,
the position of criminal law in the legal framework as well as the difference between a
crime and delict. The elements of a crime are also briefly discussed as well as various
important definitions including the definitions of substantive law, public law, criminal
law and crime.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 3-9; 25-30
OR
Snyman 2014: 3-10; 29-35.

1.1 INTRODUCTION AND HISTORICAL BACKGROUND

Our criminal law has developed from a wide variety of legal systems. It originates from
the classical law of Rome, the law which developed in Western-Europe after the fall of
the Roman Empire, and the Roman-Dutch Law with it’s origin in the province of
Holland in the Netherlands.

1.2 SOURCES OF CRIMINAL LAW

The three main sources of our criminal law are the following:

1.2.1 Common Law

Law that was transferred to us from the Roman and Roman-Dutch Law.
Examples of common law crimes include: murder, culpable homicide,
robbery, etc.

1.2.2 Legislation

There are also offences which are created by legislation. Examples of such
statutory offences are driving under the influence of alcohol and- reckless
driving, which are enacted in the National Road Safety Act, the selling and
possession of illegal drugs, etc.

66
1.2.3 Case Law (court decisions/precedent)

The South African courts deliver judgments daily that continuously develop,
affirm or amend criminal law principles.

1.3 THE POSITION OF CRIMINAL LAW IN THE LEGAL FRAMEWORK

THE LAW

SUBSTANTIVE LAW ADJECTIVE LAW

Law of criminal procedure

Law of civil procedure

Law of evidence

Interpretation of statutes

PRIVATE LAW PUBLIC LAW

Constitutional law

Administrative law

Criminal law

Substantive Law:
That part of the law which determines the content and meaning of the different legal
rules (legal principles).
Example: Criminal law prohibits us from committing criminal offences.
The law of contract determines how you can obtain ownership of a
vehicle.
Adjective Law:
That part of the law which regulates the enforcement of substantive law. It determines
how a case must be practically handled when a legal rule has allegedly been violated.
Example: Adjective law provides for the process according to which someone is
prosecuted for murder.

67
 Adjective law provides for the process to claim for damages when
somebody caused damage to your car.
.
Substantive Law

Private Law Public law

L
Public law deals with the
relationship between the
state as an authoritative
power and the subjects
of the state, with the
relationship between the
different branches of
state authority and with
the relationship between
different states.
L
Criminal Law

L
Criminal Law is that part
of the Public Law that
determines which
conduct would be
punishable under which
circumstances and what
the punishment should
be.

1.5 THE CRIME: A SYNOPTIC VIEW

Definition of a crime:
A crime is the unlawful guilty conduct of an accountable person,
which brings about in consequence crimes the prohibited result,
and is punishable by the state.
Examples:
Murder:
The unlawful and intentional causing of the death (killing) of another person.
Andrew decides to kill Bill and does so by stabbing him.
Culpable Homicide:
The unlawful and negligent causing of the death (killing) of another person.

68
Simon, the driver of a vehicle, drives negligently and kills Susan, a pedestrian.

Every crime comprises general as well as specific elements. The specific elements of
a particular crime differentiate it from other crimes.

Each crime comprises the following six general elements:

 Legality
 Conduct
 Causation (only consequence crimes)
 Unlawfulness
 Criminal accountability/capacity and
 Fault

We will deal with these six elements in depth in the following units.

1.5 THE DIFFERENCE BETWEEN A CRIME AND DELICT

There are six basic differences between a crime and a delict. It can be illustrated
as follows:

CRIME DELICT

1. Public Law - 1. Private Law –

directed against the public interests. directed against private interests
2. Criminal Law. . 2. Law of Delict.
3. State prosecutes. 3. Private party institutes action or
application.
4. Results in the imposition of 4. Result in the liable party being
punishment by the state. ordered to pay damages to the injured
party.
5. State prosecutes perpetrator 5. Injured party can choose whether
irrespective of the desires of the he wishes to claim damages
private individual.
6. Trial governed by rules of 6. Trial governed by rules of
criminal procedure. civil procedure.

1.6 CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA 1996

The Constitution declares itself to be the supreme law of South Africa

and any law or conduct inconsistent with it is invalid.1

1 Constitution: section 2.

69
The Bill of Rights forms a crucial part of the Constitution and is the cornerstone of the
democracy in South Africa. It enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality and freedom.2

The Constitution has and still is influencing and transforming our criminal law. The Bill
of Rights had for example a transformative effect on sentencing options. Section 12(1)
provides that everyone has the right to freedom and security of the person, which
includes the right not to be punished in a cruel, inhuman or degrading way. The death
penalty and whipping as punishment in criminal cases are inconsistent with section 12
of the Constitution. Accordingly, these sentencing options have been abolished,
because the court found them to be cruel and inhumane and also contrary to the spirit,
purport and objects of the Constitution. Our Constitution thus has a transformative
effect on the whole of South African law, including criminal law, in order to address
injustices. The notion of “transformative constitutionalism” will be dealt with further on
in this module when other constitution-based reform of our criminal law is discussed.

1.7 CRIMINAL LAW AND THE ADVANCEMENT OF SOCIAL JUSTICE

The meaning of the concept “justice”, derived from the Latin word “jus” (law), evolved
over time and does not have one fixed meaning. Generally, justice has a broad scope,
including notions of fairness, impartiality and equity. Justice may focus on distributive
justice, which concerns the proper administration of burdens and benefits to
individuals in society. Corrective justice concerns the compensation of individuals
who have suffered a loss or injury due to another’s wrongful conduct. Such
compensation may take the form of restitution (returning what was taken) or a
financial award for injuries or losses suffered by the injured party. Retributive justice
concerns the proper meeting out of proportionate punishment for wrongdoing or harm
inflicted.

Societies create norms to regulate social behaviour. In most societies, the state
establishes certain norms to order the conduct of members of society in pursuit of the
interest of society as a whole. These norms are often encoded in laws such as criminal
law. Every one that transgresses prohibitions in criminal law commits a crime. A crime
is not only injurious to the victim, but is harmful to society as a whole. For this reason,
the state uses its authority to punish perpetrators to serve the public interest. Criminal
law is that body of legal rules which identifies crimes and prescribes punishment with
the aim to serve justice and the interests of society. Punishment is imposed with
various purposes, namely to prevent crime, deter offenders, take revenge (retribution)
or rehabilitate the offender. More recently, restoration is also regarded as an aim of
punishment. Restorative justice entails a non-punitive resolution of disputes arising
from the infliction of harm, by involving not only the victim and the offender, but also

2 Constitution: section 7.

70
members of the community.3 Criminal justice is society’s response to violations of
criminal law. The criminal justice system in South Africa consists of various agencies
that enforce laws, such as the police, the national prosecuting authority, the courts
and prison services. In a nutshell, criminal law is a vital instrument to address injustices
by empowering the criminal justice system to bring offenders to book and thereby
advancing social justice.

Various meanings are assigned to the concept of “social justice”. Social justice
generally refers to the pursuit of political, legal, economic, and social equality, which
include fairness (equal opportunity) and respect (equal dignity) for all members of
society. Some argue that social justice is social, because members of society work
together to pursue a just and fair goal, e.g. the legislature, as part of society, remove
discrimination or racist laws.

Social justice initiatives are recently often linked to human rights. Based on the
fundamental rights enshrined in the United Nations' 1948 Universal Declaration of
Human Rights and other human rights treaties, governments are required to respect,
realise and protect the rights of their citizens. In South Africa human rights are firmly
entrenched in the Constitution of the Republic of South Africa, 1996. The Constitution
plays a crucial role in expanding social justice. Since criminal law is bound by the
Constitution, it also contributes to the advancement of social justice. However, it is
critical to continuously rethink, assess and, when needed, reform criminal law to
better serve social justice and the interests of society as a whole.

1.8 HIERARCHY OF COURTS

The hierarchy of the courts in terms of the Superior Courts Act 10 of 2013 is illustrated
below:

Constitutional Court
SUPERIOR COURTS .
Supreme Court of Appeal

High Court

LOWER COURTS Regional Courts

(magistrates’courts)

District Courts

3 Burchell J. 2016. Principles of criminal law. 5th ed. Claremont:Juta on p.5.

71
1.9 DOCTRINE OF PRECEDENT
The doctrine of precedent provides as follows:
~ lower courts are bound by the decisions of higher courts and
~ a court (except lower courts) is bound by its own previous decisions, unless the
previous decision is wrong.

Constitutional Court (CC)

o The Constitutional Court is the highest court in South Africa.
o It decides both constitutional and certain other issues.4
o Decisions of the Constitutional Court bind all other courts.
o The Constitutional Court is bound by its own previous decisions, unless the
court finds it now to be wrong.

Supreme Court of Appeal (SCA)

o This court is the second-highest court in South Africa.
o It decides mainly appeals.
o Decisions of this court bind all subordinate courts, namely the High Court and
the lower courts.
o The Supreme Court of Appeal is bound by decisions of the Constitutional Court
and by its own previous decisions, unless they are wrong.

High Court
o The provincial and local divisions of the High Court bind the lower courts.
o Decisions of the High Court binds all lower courts.
o The High Court is bound by decisions of the Constitutional Court and the
Supreme Court of Appeal. In the absence of such applicable decisions, the High
Court is bound by its own previous decisions, unless they are wrong.
o A single judge in the High Court is bound by judgments of a full bench with two
or more judges.

Lower Courts
o The decisions of the lower courts do not bind other courts.
The decisions of the lower courts do not serve as precedents which must be
followed and are therefore also not reported.
o The lower courts are bound by decisions of the Constitutional Court and the
Supreme Court of Appeal. In the absence of such applicable decisions, the
lower courts are bound by the decisions of the High Court in their respective
provinces.

Sometimes two courts with the same status may give contradictory judgments. The
reason for it is normally that the one is not aware of the judgment of the other and such
contradictory judgments may lead to confusion. A logical approach in a case like this

4 Constitution Seventeenth Amendment Act of 2012: section167(3).

72
will be to follow the judgment of the case with facts most similar to the one that you
are dealing with.

1.10 READING AND SUMMARISING A CRIMINAL LAW COURT CASE

Law reports and case references:

The application of the doctrine of precedent depends amongst other things on reported
cases. Case law is reported in the law reports. Only a small percentage of the cases
that come before the courts are eventually reported.

A case reference individualises each reported case, making it easier to find. The
method of reference used is a commonly accepted style, not a legally binding
prescription. The full reference is used in law reports and in legal documents. The
individual case references make it easier for lawyers, magistrates and judges to find
cases and study them.

Let us look at an example of a case reference and the composition thereof:

S v Mitchell and Another 1992 (1) SACR 17 A

A case reference /citation consists of five components:

* Case name: S v Mitchell and Another

* Year and volume case was reported: 1992 (1)
* Series of law reports: SACR – South African Criminal Law Reports
* Page where case report starts: 17
* Court in which case was decided: A

These components will now be discussed separately:

i. Case name:
A reference will always start with the case 'name'. Two parties are usually placed
against one another. In criminal cases the first party will always be the state ('S').
Before South Africa became a Republic (1961), prosecutions were instituted in the
name of the crown; king or queen in Latin is Rex or Regina, so 'R' refers to the crown.
For example: R v Koning 1953 (3) SA 220 T

There may be more than one accused. In the case of two parties 'and another' is added
to the first name. If there are more than two, it is indicated by the phrase 'and others'

For example: S v Baby and Another 2000 (1) SACR 456 T

Only surnames are cited. In exceptional cases reference is only made to the first letter
of a party's surname in order to protect his identity. This applies particularly where
children are involved and when the trial took place in camera.
For example: S v T 1986 (2) SA 112 O

Another reference in the case name you may find is - "ex parte" - (on the application).
This means that one party brings an application to the court. This may be done by a

73
party such as the Director of Public Prosecutions or the Minister of Justice to obtain
clarity on a legal question.

For example: Ex parte the Minister of Justice: In re S v Grotjohn 1970 (2) SA 355 A

ii. Year and volume case was reported:

The South African Law Reports are published monthly since 1947. The twelve issues
are collected in four volumes per year. The reference does not indicate when the court
case was decided, but when it was included in the law reports. A published court report
for the first three months of 1990 will be recorded in volume 1 of 1990. Volume 4
contains reports from October to December.

iii. Series of law reports

There has been four phases of case law reporting:

Before 1910: No single reporting system existed.

1910 - 1946: In 1910 the Union was formed and reporting was
standardised. Each division of the higher courts issued its
own series. These series appeared annually.
Example: R v S 1937 NPD 135

Prentice-Hall Reports existed from 1923 up to 1996.

It provided mostly summaries instead of complete
judgments.
Example: R v Keyter 1960 (2) PH H188
In 1996 the prentice Hall Reports was replaced by the All
South African Law Reports (All SA)

Since 1947: South African Law Reports - SA: This is the most
comprehensive series of law reports and also contains
some Namibian and Zimbabwean cases.
Example: S v T 1986 (2) SA 112 O

1990 Specialist law reports emerged.

South African Criminal Law Reports - SACR [Afrikaans
SASV] Reports only criminal cases from 1990.
Example: S v Di Blasi 1996 (1) SACR 1 A

Other examples of specialist law reports include:

Butterworths Constitutional Law Reports (BCLR)
Butterworths Labour Law Reports (BLLR)

Electronic (Online) reports emerged

* Judgments Online (JOL) Butterworths
* Juta’s Daily Law Reports
* SAFLII (http://www.saflii.org/) The Southern African
Legal Information Institute publishes legal information for

74
 free public access. It comprises mainly of case law from
South Africa.

iv. Page where report starts:

S v Mitchell and Another 1992 (1) SACR 17 A

The number "17" in the case reference indicates that the specific case report starts on
page 17 of that volume. This number will remain constant in the case reference. To
refer to another page in the same report, the following method is used:
S v Mitchell and Another 1992 (1) SACR 17 A on 23E

This means that reference is made to page 23 of the report which starts on page 17.
Next to the printed text of the court record, letters of the alphabet appear in the margin,
beginning with A. The relevant text of the page can thus be found at a glance with the
help of those marginal letters.

v. Court where the case was decided: A

"A" indicates in which court the case was decided.

Recently the Superior Courts Act 10 of 2013 changed the names of several courts.
Some of the most prominent courts are named as follows:

Superior Courts Act 2013 Previous names

CC Constitutional Court
SCA Supreme Court of Appeal Appellate Division (A)/(AD)
High Court:
ECG Eastern Cape Division Grahamstown Ciskei High Court (Ck)
ECB Eastern Cape Division Bisho Eastern Cape provincial (E)
ECM Eastern Cape Division Mthatha Transkei High Court (Tk)
ECP Eastern Cape Division Port Elizabeth South Eastern Cape (SE)
FB Free State Division Bloemfontein Orange Free State Division, (O)
GP Gauteng Division Pretoria Transvaal Prov. Division (T)/(TPD)
GJ Gauteng Division Johannesburg Witwatersrand Division (W)
KZP KwaZulu-Natal Div. Pietermaritzburg Natal Division (N)/(NPD)
KZD KwaZulu-Natal Division Durban Durban Division (D)
LT Limpopo Division Thohoyandou Venda High Court (V)
MWM North West Division Mahikeng Bophuthatswana High Court (B)
NCK Northern Cape Division Kimberley Northern Cape (NCK)/(NC)
WCC Western Cape Division Cape Town Cape Division (C)

Other specialised courts include the Labour Appeal Court (LAC), the Equality Court
(EqC) and the Land Claims Court (LCC).

vi. Judges and the abbreviations

CJ Chief Justice (since 2001: head of the Constitutional Court)

75
P President of the Supreme Court of Appeal (since 2001)
JA Judge of Appeal
AJA Acting Judge of Appeal
JP Judge President
DJP Deputy Judge President
J Judge (in the Constitutional Court and the High Court)
AJ Acting Judge

Summarising a court decision

When writing an argument or when asked to discuss a court decision you should be
able to summarise the court decision.

Example:
Question - Discuss the decision in R v Letoani 1950(3) SA 669 O
Steps to be taken:
1. Look up the Law report concerning the case R v Letoani 1950 (3) SA 669 O
[Level 5 in the Library where court reports are kept or in the Reserve Section.
See the heading of the case].
2. The name of the judge and the date of court sitting are irrelevant.
3. You can ignore the cryptic indication (flynote) concerning the case: "Railway-
Travelling on railway coach etc."
4. The summary of the case (headnote) is a handy indication of the gist of the
case. It is clear from this summary in the Letoani case that article 9 of Act 22 of
l9l6 provides that no person may enter any vehicle or coach as a passenger
without free pass or ticket and this provision does not create an offence. No
reason is given in the summary for the judgment. We have to look further.
5. The word "Review" indicates that this case comes up for review before the High
Court.
6. Judge Brink deals with the facts of the case on page 669.
7. In paragraphs A to E on page 670, the judge deals with the legal position
regarding the requirements with which a legal provision must comply before it
can be construed as a provision for an offence.
8. In paragraphs F on p 670 to C on page 671 the legal requirements are applied
to the facts in the case and the court's decision appears in the last five
sentences of the judgment.
9. Now make a short summary of the Letoani case, with reference only to the facts
and findings which concern the question as to whether punishment by the state
is an element of a crime or not.
10. Your summary must be more or less as follows:
In the Letoani-case the accused was charged with the contravention of article
9 of Act 22 of l916 in that he travelled on a train without having a valid ticket.
The court decided that the legislator did not intend that the contravention of
article 9 had to create a crime, because no penalty clause is attached to the
contravention and because sufficient provision is made in other articles for the
criminalisation of the said conduct. It is clear from this finding that punishment
by the state, as the result of the requirements of legality, is an essential element
of a crime.

76
In test and examination assessments students are expected to analyse prescribed
court cases. A question in this regard may be formulated as follows:

Analyse the case of S v Goliath 1972 2 SA 1 A with reference to the:

(a) facts;
(b) legal question;
(c) decision and the reasons for the court’s decision.

77
 LEARNING OUTCOMES: UNIT 1

On completion of this Unit, students should be able to:

1. State and identify the sources of criminal law.

2. Give an outline of the placement of criminal law in the total legal framework.
3. Distinguish between substantive and formal law.
4. Define public law, criminal law as well as a crime.
5. Compare crimes with delicts.
6. Map out the hierarchy of the courts.
7. Explain what the system of precedents involves.
8. Map out the general elements of a crime
9. Reflect on the transformative effect of the Bill of Rights on sentencing options.
10.Discuss the role that criminal law plays in the advancement of social justice.
11. Identify all the relevant aspects in the name (citation/case reference) of a criminal
case.
12. Summarise or analyse a court case.

*Examples of assessment questions that will be discussed during

tutorial sessions:

o Discuss the role that criminal law plays in the advancement of social
justice.
o Distinguish between a crime and delict.
o Summarise / analyse the following court case ….

NOTES:
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79
 LEARNING UNIT 2 : LEGALITY
(PUNISHMENT BY THE STATE)

In Unit 2, the principle of legality, students will be introduced to the principle of legality
and compliance thereof as precondition for the conviction of any accused. The various
elements of the definition of this principle will be discussed as well as the supporting
provisions provided by the Constitution of the Republic of South Africa, 1996.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Texbook:

Snyman 2020:31-42
OR
Snyman 2014:35-49

Court Cases:
Director of Public Prosecutions v Masiya 2007 JDR 0330 (CC)

2.1 THE PRINCIPLE OF LEGALITY

You have already learned in the introductory lecture that every crime comprises
general and specific elements. Crimes must comply with the general elements.
Specific elements differentiate between crimes.

Each materially defined crime comprises of the following six general elements:
 Legality
 Conduct
 Causation
 Unlawfulness
 Criminal accountability
 Fault

This unit deals specifically with the first element, namely legality.

In a modern state like South Africa, the freedom of the individual is held in high regard
and is protected. In this regard, the principle of legality plays a very important role in

80
the criminal law. The purpose of the principle of legality is to ensure that the state, its
organs and its officials, do not consider themselves to be above the law in the exercise
of their functions, but remain subject to it.

The definition given by Snyman (2020:31) of the principle of legality is as follows:

“An accused ought not to 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 and
 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.”

The condition that the specific conduct of a person must be threatened with
punishment by the state originates from the principle of legality.

According to the principle of legality, there is no crime if there is no law which provides
that the accused person’s conduct is a crime.

Nullum crimen sine lege

The principle of legality is based on the Latin maxim nullum crimen sine lege (no crime
without legislation).

This maxim is not absolutely applicable to South African criminal law. The principle
can only find absolute application in legal systems that are fully codified. Only those
legal systems which are fully codified can truly provide that conduct which is not
prescribed as a crime in the statutes of that jurisdiction, is not a crime.

There are two kinds of crimes in South African criminal law:

1. Statutory crimes:
Statutory crimes are crimes which are formally defined in legislation (an
Act) and with respect to which the principle of legality can fully apply. An
example is drunken driving (contravention of Section 65(2) of the
National Road Traffic Act 93 of 1996).

2. Common-law crimes:
Common law crimes are not defined in legislation, but are transferred
from generation to generation by the common law. An example is murder
(the unlawful and intentional killing of another person.)

The principle of legality does to some extent apply to common-law crimes in that
extinct common-law crimes found in old sources, cannot be revived without the

81
intervention of the legislator. The list of common-law crimes is closed and the existing
common-law crimes cannot be expanded or adjusted by the courts. However, Section
173 of the Constitution states that the Constitutional Court, Supreme Court of Appeal
and the High Courts have the inherent power to develop the common law, taking into
account the interests of justice.

The principle of legality is always applicable to statutory crimes. If a statutory crime is

not defined in detail in an act, it is not a crime.

Nullum crimen sine poena legali

The Latin maxim of nullum crimen sine poena legali means that there can be no crime
without a legal penalty. When the legislator prohibits certain conduct, but does not
prescribe the punishment for such conduct, it is an incomplete definition, because it
lacks the element of legality (or punishment by the state).

Punishment must also be imposed by the state. The punishment that a school principal
for example imposes upon a pupil, does not make that misconduct a crime. The
exercise of discipline by professional bodies upon their members does not amount to
punishment by the state and this type of action rather resorts under administrative law
than under criminal law. (It is however on a general note, important to realise that even
not constituting criminal law per se, disciplinary action is subject to court review; but
then in terms of administrative instead of criminal law principles)

NB: Read and study the following court case:

Director of Public Prosecutions v Masiya 2007 JDR 0330 (CC)

Director of Public Prosecutions v Masiya 2007 JDR 0330 (CC)

Facts of the case

Legal question for the court to answer

82
Decision of the court

2.2 THE PRINCIPLE OF LEGALITY AND THE CONSTITUTION

The principle of legality is contained in section 35(3)(l) and (n) of the Constitution of
the Republic of South Africa, 1996.

Section 35 forms part of Chapter 2 of the Bill of Rights. The Bill of Rights concerns all
the rules of law. It therefore binds the legislative, executive and judicial powers of the
state. Therefore a court may declare any provision in legislation or the common law,
which is in conflict with the Constitution, null and void.

Section 35(3)(l) reads as follows:

“Every accused person shall have the right not to be convicted of an act or omission which was
not an offence under either national or international law at the time it was committed or omitted.”

Section 35(3)(n) reads as follows:

“Every accused person shall have the right to the benefit of the least severe of the prescribed
punishments if the punishment for the offence has been changed between the time that the
offence was committed and the time of sentencing.”

83
 LEARNING OUTCOMES: UNIT 2

On completion of this Unit, the student will be able to:

1. Explain the principle of legality as prerequisite for convicting an accused person.

2. Discuss Snyman’s definition of legality.
3. Explain the meaning of nullum crimen sine lege and nullum crimen sine poena
legali.
4. Distinguish between the two types of crimes in the South African criminal law and
give an example of each.
5. Discuss the support provided to the principle of legality by the Constitution of the
Republic of South Africa, 1996.
6. Critically discuss the application of the principle of legality in S v Masiya 2007 JDR
0330 (CC) and S v Mshumpa 2008 1 SACR 126 EC.
7. Apply his/her knowledge about the principle of legality and relevant case law
towards solving practical problems that require an analysis and evaluation of
criminal liability.

*Example of assessment questions that will be discussed during

tutorial sessions:

o Does the Constitution of the Republic of South Africa, 1996 support the principle
of legality? Motivate your answer.

o Taelo is an ambitious young man who, during daytime, works in an office of a

state department under the supervision of the not so dynamic civil servant,
Lazy. While Lazy enjoys his sandwich in the tea-room during lunch-hour, Taelo
takes the foam rubber cushion of his chair and allows it to absorb the contents
of a full water bottle. The cushion is replaced cautiously.

As Lazy settles behind his desk after the lunch-hour, he discovers that his
trousers are soaking wet. Lazy lays a charge against Taelo for contravening a
clause in the Civil Service Personnel Code. The Personnel Code states that:
“No civil servant may impede any other civil servant in the exercising of his
duties.” It is proven that due to the actions of Taelo, Lazy could not work the
rest of the day.

Write an argument wherein you indicate whether Taelo has committed a crime or not.
Do not refer to case law.

84
Notes:
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85
 LEARNING UNIT 3 : CONDUCT

In Unit 3, the focus is on the conduct-element of a crime. Students will be introduced

to the definition of conduct, the various forms of conduct (a commission as well as an
omission) as well as the different defences that can be raised against this element in
order to escape criminal liability.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 43-52
OR
Snyman 2014: 51-62.

Court Cases:
S v Fernandez 1966(2) SA 259 A
S v B and Another 1994(2) SACR 237 OK
S v Russel 1967(3) SA 739 N
Minister of Police v Ewels 1975(3) SA 590 A
R v Dlamini 1955(1) SA 120 T
S v Johnson 1969(1) SA 201 A
S v Chretien 1981(1) SA 1097 A
S v Van Rensburg 1987(3) SA 35 T
R v Schoonwinkel 1953(3) SA 136 C

3.1 INTRODUCTION

Conduct is the second general element of a crime.

3.2 DEFINITION

Definition: Conduct is any, voluntary, personal behaviour.

Before a person can be found guilty of a crime, the state must prove beyond
reasonable doubt that he/she perpetrated an act (which complies with the definition
set out earlier). A mere thought does not suffice to create the element of conduct.

Sometimes the conduct is but "slight". Thus a threatening attitude can in specific cases
be sufficient behaviour to comply with the conduct element of the crime: "assault".

86
By way of introduction, the four elements of the definition of conduct can be
discussed in more detail:

1. Conduct is any voluntary personal behaviour.

"Any" means any behaviour which is juridically relevant. When behaviour can
be associated in a causal connection with the perpetrated crime (according to
the tests for causation discussed in learning unit 4 below), then it is by law
important and relevant.

For instance, when a person drinks to courageously commit a crime, then the
"drinking" is juridically relevant behaviour even though the crime is
subsequently committed in a criminally unaccountable drunken state.

2. Conduct is any voluntary personal behaviour.

Sometimes the definition reads that conduct is any voluntary human behaviour.
However, the term "personal" is preferred because it also includes the conduct
of a body corporate (a legal person e.g. company), which in terms of section
332 of the Criminal Procedure Act 51 of l977 can be charged with perpetration
of a crime.

3. Conduct is any voluntary personal behaviour.

Behaviour includes both positive conduct (commissio) and passive conduct
(omissio). The example of the champion swimmer who calmly looks on whilst
an old lady drowns in the pool and who is then not held criminally responsible,
is no longer valid. As soon as a person can be reasonably expected to take
action and he neglects to do so, he can in specific cases be held liable on the
basis of his omission.

VERY IMPORTANT: Conduct can be positive or passive.

SOMETIMES THERE IS A LEGAL OBLIGATION ON A PERSON TO ACT

POSITIVELY

An omission (failure to act positively) is only punishable if there is a legal duty on the
accused to act positively. There is a difference between a moral duty and a legal duty
to act.

The general rule is that there is a legal duty on a person to act positively
if the legal convictions of the community required him/her to do so.

There is a legal obligation (duty) to act positively in the following instances:

Duty created by way of legislation (for example sec. 61 of Act 93/1996 -
report car accident to the police);
Duty that arises in terms of the common law (duty to report the crime of
high treason);
Duty that arises in terms of an agreement;
Duty that arises from being in control of a dangerous or potentially
dangerous object;

87
 Duty that arises from a protective relationship;
Duty that arises from previous positive conduct;
Incumbent of a public office (police officer /medical doctor);
Duty that arises in terms of a court judgment.

NB: Read and study the following court cases:

S v Fernandez 1966(2) SA 259 A

S v B and Another 1994(2) SACR 237 (OK) 248
S v Russel 1967(3) 739 N
Minister of Police v Ewels 1975(3) SA 590 A

S v Fernandez 1966(2) SA 259 A

Facts of the case

Legal question for the court to answer

Decision of the court

S v B and Another 1994 (2) SACR 237 (OK) 248

Facts of the case

Legal question for the court to answer

88
Decision of the court

S v Russel 1967(3) SA 739 N

Facts of the case

Legal question for the court to answer

Decision of the court

Minister of Police v Ewels 1975(3) SA 590 A

Facts of the case

Legal question for the court to answer

89
Decision of the court

4. Conduct is any voluntary personal behaviour.

Voluntary behaviour means a behaviour which is susceptible to domination of

the will (controlled by the will). It does not necessarily have to be a conduct that
is wished for. The conduct of the lady who stops in her car at a red robot and
then suddenly drives off when the person behind her hoots, without noting that
the robot is still red, was susceptible to domination of the will (although she
neglected to exercise her own will). However, it cannot be said that she wanted
to ignore the red robot. On the other hand, the conduct of a person who walks
in his sleep is not susceptible to the domination of his will and is thus
involuntary.

NB: Conduct must be voluntary.

Factors which can exclude “volunteerism”

a. Absolute force
b. Forces of nature
c. Automatism

AUTOMATISM
i. What is automatism?
ii. Sane and insane automatism.

A. SANE AUTOMATISM

 Sleepwalking, blackouts, epileptic fit, reflect movements, absolute

duress.

B. INSANE AUTOMATISM

 Mental illness or mental defect.

NB: The difference between sane and insane automatism.

The first difference relates to the onus of proof:

* If X relies on the defence of “sane automatism”, the onus of proving that
the act was performed voluntarily rests on the state.

90
 * If, on the other hand, X raises the defence of “insane automatism”, the
onus of proving on a balance of probabilities that he suffered from a mental
illness, rests upon X and not on the state.

The second difference relates to the eventual outcome of the case,

namely whether or not X will leave the court as a free person:

* A successful defence of “sane automatism” results in X’s leaving the court

as a free person, as he is deemed not to have acted.

* A successful defence of “insane automatism”, on the other hand, results

in the court’s dealing with X in accordance with the relevant provisions of
the Criminal Procedure Act. In practice the court finds the accused also not
quilty, but mostly makes an order that X be detained in a psychiatric hospital
for a certain period, which results in X’s losing his freedom.

3.3 DEFENCE OF ABSENCE OF THE ELEMENT OF CONDUCT

A defence based on the absence of voluntary "conduct" is called "automatism"

and can be raised in the following instances:
* Sleepwalking
* Blackouts
* Mental illness
* Reflex movements
* Voluntary drunkenness
* Absolute duress
*

A defence of absence of the element of conduct is raised when the behaviour of the
perpetrator was involuntary at the time when the crime was perpetrated; thus not
susceptible to domination of will.

Although there is no fixed number of cases that deal with this subject, the following
instances are apparent in case law:

3.3.1 SLEEPWALKING

Persons who commit an unlawful act while sleeping - or who are in a phase between
sleeping and waking - act involuntarily. Therefore they do not act in the legal sense of
the word and can thus not be held criminally liable. As a matter of interest, it can be
stated that according to the most recent literature on neurology, sleepwalking is most
probably a form of nocturnal epileptic activity on the part of the doer.

91
R v Dlamini 1955(1) SA 120 T

Facts of the case

* See study
guide

Legal question for the court to answer

~ Whether the conduct of the accused voluntary?

Decision of the court

* Accused aquited

~ The court could not prove voluntary conduct.

3.3.2 BLACKOUTS AND AMNESIA

Amnesia means a loss of memory. Amnesia is no defence if a person acted voluntarily

when the crime was committed, but afterwards has no memory of committing such
crime. Psychogenic amnesia is the subconscious repression of an unacceptable or
intolerable memory. The essential question remains whether the conduct was
voluntary at the moment when the crime was committed. A blackout is a temporary
loss of consciousness. Suffering a blackout is a defence on the element of conduct,
because an unconscious person cannot control his will or act voluntarily.5

3.3.3 MENTAL ILLNESS (INSANE AUTOMATISM)

Some forms of mental illness or mental disease can prevent a person from behaving
voluntarily.

Everybody is normal
However, there is a refutable presumption (in favour of the state in a criminal trial) that
all persons are normal. An onus of rebuttal thus rests on the accused (who raises a
defence of automatism based on mental illness or disease) to indicate on a balance
of probabilities that he is not mentally normal. This presumption is contained in section
78(1A) of the Criminal Procedure Act 51 of 1977.

Section 78(1A) reads as follows:

5 Kemp, G et al. 2012. Criminal Law in South Africa.Cape Town: Oxford University Press: on p 35-36.

92
 Every person is presumed not to suffer from a mental illness or mental defect so as not to be
criminally responsible in terms of section 78(1), until the contrary is proved on a balance of
probabilities.

The onus of proof is on the party that raises the defence.

Should the defence succeed, the accused is found not guilty of the alleged crime, and
the accused is dealt with in terms of section 78(6) of the Criminal Procedure Act 51 of
1977.
.
3.3.4 REFLEX MOVEMENTS

Reflex movements are not voluntary acts. For instance, when a perpetrator injures
someone during a reflex movement (while sneezing for example), he ought not to be
held criminally accountable for this.

3.3.5 VOLUNTARY DRUNKENNESS

Position before 1981

Up to and including l980 the position was that, if a person voluntarily became so drunk
that he falls into a state of automatism, and for instance kills someone in this state of
automatism, he is nevertheless found guilty of crime irrespective of the fact that his
conduct was involuntary.

Separate rules applied to intoxication and at most intoxication could reduce the form
of fault from “intention” to “negligence”, leading to a conviction of culpable homicide.

NB: Read and study the following court case

S v Johnson 1969(1) SA 201 A

S v Johnson 1969(1) SA 201 A

* Degree 1 of drunkness - not in controll of bodily movements, involuntary conduct.
Facts of the case
» See study guide.

Legal question for the court to answer

* Can a person be convicted of culpable homocide if there was no voluntary
conduct?

Decision of the court

» Conviction of culpable homocide confirmed.
~ The requirement of involuntaryness does not apply to cases of self induced
intoxication.

93
Position after 1981
The Appeal Court's finding in S v Chretien l981(1) SA 1097 A changed the previous
position and provided the following guidelines:

If conduct perpetrated in a drunken state, was involuntary (for instance when the drunk
person lies on the ground and makes spasmodic kicking movements) it does not
comply with the conduct element of crime and the perpetrator can not be convicted of
a crime.

If the conduct of the drunken person is indeed voluntary, then it must also be tested
whether the perpetrator is perhaps not criminally unaccountable as the result of his
drunken state. If he was indeed criminally unaccountable, he will yet again not be
convicted of a crime.

When both the element of conduct and the requirement of criminal accountability are
complied with, the question arises as to which type of fault (last element of crime) is
present at the time of committing the crime.

In case where the perpetrator is still able to form intention, he can be convicted of a
crime that requires intention for example, murder. In case where he can no longer form
intention as a result of the intoxication, he will be convicted of culpable homicide as
culpable homicide only requires fault in the form of negligence.

The Chretien case was met with criticism. Module 6 deals with Act 1 of l988 which
effectively neutralises the effect of drunkenness on the criminal accountability of the
perpetrator. However, this Act does not influence the Chretien case in so far as it rules
that a person can indeed be automatically drunk.

B: Read and study the following court case

S v Chretien 1981(1) SA 1097 A

S v Chretien 1981(3) SA 1097 A * 3rd Degree

Facts of the case

» See Powerpoint slides.

Legal question for the court to answer

* Whether the judge was correct in holding that the accused on the charges of attempted murder
could not be convicted of assault?
Decision of the court
» Court confirmed conviction of cuplable homocide only.
~ Accused could not form intention, seeing as it is required for assault.

94
3.3.6 ABSOLUTE DURESS

Absolute duress constitutes the defence of automatism when X for example grabs Y’s
arm and then with Y’s arm in hand, stabs Z. In such circumstances, Y does not act
voluntarily.

3.4 LIABILITY BASED ON PRIOR VOLUNTARY CONDUCT (Antecedent liability)

NB: Read and study the following court case

S v Van Rensburg 1987(3) SA 35 T

S v Van Rensburg 1987(3) SA 35 T

Facts of the case
* See Class slides

Legal question for the court to answer

Decision of the court

» Not guilty, sane autonatism by way of antecedent liability.

NB: Read and study the following court case

R v Schoonwinkel 1953(3) SA 136 C

R v Schoonwinkel 1953(3) SA 136 C

Facts of the case

* See Class Slides

95
Legal question for the court to answer

Decision of the court

3.5 GENERAL

In general, our courts do not easily accept a defence of automatism, because it can
easily be fabricated.

LEARNING OUTCOMES: UNIT 3

96
On completion of this Unit, the student will be able to:

1. Discuss the four elements in the definition of conduct.

2. Distinguish between a commissio and an omissio.
3. Discuss the instances where there are legal obligations on a person to act.
4. Compare sane and insane automatism.
5. Map out the defences that can be raised against the element of conduct.
6. Explain the phrase “liability based on prior voluntary conduct”.
7. Apply his/her knowledge about the conduct-element and relevant case law
towards solving practical problems that require analysis and evaluation of
criminal liability.

Example of assessment question that will be discussed during

tutorial sessions:

o CHOOSE ONE CORRECT ANSWER FROM THE DATABANK

BELOW

1. Conduct is one of the general elements of a crime that the state must prove
... before an accused person can be convicted of a crime.

2. The conduct element of a crime is defined as any, voluntary, personal behaviour, which
includes ...

3. An omission by a natural or legal person is only punishable if there is ...

4. The general rule is that there is a legal duty on a person to act positively ...

5. In criminal law an act is voluntary if it is controlled by the will. Factors which exclude
“volunteerism” are ...

6. In R v Dlamini 1955 the accused was acquitted because the state could not prove that the
accused performed a voluntary act. The accused stabbed the deceased three times, but he
was half-asleep and acted ... without intention, volition or motive.

7. In S v Chretien 1981 the court held that a person who is so drunk that he can only perform
involuntary muscle movements, similar to that of a ..., cannot be convicted of a crime,
because the state cannot prove that the behaviour is a voluntary act.

97
 8. In S v Van Rensburg 1987 the court acquitted the accused, because the state could not
prove that he acted voluntarily. The defence of ... succeeded, since an unexpected sudden
fall in the accused’s blood-sugar resulted in drowsiness that affected his driving abilities.

DATABANK OF ANSWERS: CHOOSE ONE ANSER PER QUESTION

A if the legal convictions of the community requires him/her to do so.
B mechanically
C beyond reasonable doubt
D sleepwalker
E forces of nature, sane and insane automatism and absolute force.
F positive conduct as well as omissions by natural (human) and legal persons,
such as companies.
H a legal duty to act positively.
I sane automatism

Notes:
___________________________________________________________________
» Voluntary conduct
___________________________________________________________________
___________________________________________________________________
* Behaviour susceptible to power of will.
___________________________________________________________________
___________________________________________________________________
~ Factors excluding voluntary:
___________________________________________________________________
___________________________________________________________________
a) Vis absoluta (absolute force) - physically stronger force causing involantary acts.
vs. Compulsiva - voluntary conduct, because threatned with harm.
___________________________________________________________________
... absolute duress...
___________________________________________________________________
___________________________________________________________________
b) Forces of nature - Natural forces causes unlawful conduct, wind knocking you and another
___________________________________________________________________
over. ___________________________________________________________________
___________________________________________________________________
c) Automatism:
___________________________________________________________________
___________________________________________________________________
Sane (automatism) - Short period of time unable to controll bodily movements; somnambulist.
___________________________________________________________________
Insane___________________________________________________________________
(mental illness) - Internal mental defect causing uncontrallable bodily movements.
~Why?___________________________________________________________________
(1) Onus of proof - rests on state (sane)
___________________________________________________________________
- rests ___________________________________________________________________
on defence (insane)
(2) Suceeding - Free to go (sane)
___________________________________________________________________
- Found not guilty, but declare state patient and possible phyciatric patient (insane)
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
»___________________________________________________________________
Defences of abscense of the element of conduct (not a closed list):
___________________________________________________________________
a) Sleep walking (sonmambulists)
-___________________________________________________________________
Involuntary conduct that does not hold persons criminally liable based on
___________________________________________________________________
conduct.
*R v Dhlamini
» Blackouts - temporary loss of conscienceness » Mentall illness - possible to exclude voluntary
- Involuntary conduct
*Amnesia does not suffice involuntary conduct. ~ Onus of proof - defence proves that they suffered
from MI at commissson of the crime causing conduct.
*S78(1) A, Act 51 1977 (everyone mentally normal)

98
 LEARNING UNIT 4: CAUSATION

In Unit 4, the focus is on the element of causation. The difference between factual and
legal causation is discussed as well as the single theory to determine factual causation
and the various theories to determine legal causation.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:65-78
OR
Snyman 2014:79-94.

Court Cases:
S v Mokgethi 1990(1) SA 32 A
S v Daniels 1983(3) SA 275 A
S v Williams 1986(4) SA 1188 A
S v Tembani 2007 (2) SA 291 (SCA)

4.1 INTRODUCTION

The authors of textbooks discuss causation mostly as a subdivision of the element of

conduct. The reason is probably that causation is only required in acts (or crimes)
where the cause of the consequence is punishable. (Materially defined crimes)

The question which arises with causation is whether the accused person’s conduct
has caused the prohibited consequence.

Examples:

A. John wants to settle a dispute he has with Karel. He goes to Karel, takes out
his knife and stabs him. Karel dies minutes later as a result of the wound on his
chest.

B. Sonny wants to settle a dispute he has with Donovan. He goes to Donovan,

takes out his knife and stabs him on the shoulder. The ambulance takes him to
the hospital, but on the way drives off a bridge. Donovan dies in the accident.

99
The question is whether John and Sonny can be convicted of murder in both instances.
To answer this question we must distinguish between factual and legal causation.

4.2 CAUSATION

4.2.1 FACTUAL CAUSATION

Example of A above: To find that there is a causal link between the conduct of John
and the prohibited cause (the death of Karel) it must be clear that the conduct of John
was both the factual cause of Karel's death and that it was the legal cause.

Example of B above: To find that there is a causal link between the conduct of Sonny
and the prohibited cause (the death of Donovan) it must be clear that the conduct of
Sonny was both the factual cause of Donovan's death and that it was the legal cause.

To determine that there is factual causation we use the conditio sine qua non theory.

"Conditio sine qua non" means ‘the condition without which not’.

In applying this theory the court asks the question whether the result would still have
occurred was it not for the act in question. The question in a murder case would be:
"Would the deceased have died at the relevant time and in the relevant manner and
place if it was not for the accused person’s conduct?"

Definition of conditio sine qua non theory:

An act is a conditio sine qua non for a situation if the act cannot be thought away
without the situation disappearing at the same time.

Much of the criticism raised against this theory is that it is too wide, and therefore of
little value for the administration of justice which determines liability. Not everyone who
cause a prohibited result can be held liable.

4.2.2 LEGAL CAUSATION

As the conditio sine qua non test is too wide, it means that a second criterion must be
applied to limit the wide range of possible causes for Y's death. This second criterion
can be described as the test to determine legal causation. When a court is called upon
to decide whether X's conduct caused Y's death, the mere fact that X's conduct is a
conditio sine qua non is insufficient as a ground upon which to base a finding of a
causal link.

100
The test for legal causation will determine whether it is fair and just to hold X
responsible for the death of Y.

4.3 THEORIES OF LEGAL CAUSATION

The following theories can be used to determine legal causation:

Individualising Theories Generalising Theories

These theories single out from all the According to these theories an act is the
acts which constitute factual causes of legal cause of the prohibited result
the prohibited situation the one most when, according to general experience,
operative act or "the most proximate” or the act has the tendency to cause that
“direct cause” as the legal cause. It is type of unlawful consequence. The
also known as "the direct consequence theory of adequate causation is the
test" to determine the legal cause. most common of these theories.

4.3.1 NOVUS ACTUS INTERVENIENS

An act is a novus actus interveniens if it constitutes an unexpected, abnormal or

unusual occurrence; an occurrence which, according to general human experience,
deviates from the normal course of events, or which cannot be regarded as a probable
result of X's act.

Example B above, may serve as a good example of conduct that may qualify as a
novus actus interveniens. More specific, the accident caused by the ambulance
driver will be a novus actus inteveniens and Sonny will not be the legal cause of
Donovan’s death.

It is important that an act or an event can never qualify as a novus actus interveniens
if X previously knew or foresaw that it might occur.

NB: Read and study the following court case * Novus actus theory
S v Mokgethi and Another 1990(1) SA 32 A

S v Mokgethi and Another 1990(1) SA 32 A

Facts of the case

* See Class slides

101
Legal question for the court to answer

* See class slides

Decision of the court

» The conviction of MURDER was replaced by ATTEMPTED MURDER bacause the accused was not the LEGAL
cause of death.
* The accused was the FACTUAL cause based on the CONDITIO SINE QUA NON.

* The accused was not the LEGAL cause pf death. Not fair to hold them liable for the death of the
victim due to the following reasons:

~ See class slides

NB: Read and study the following court case

S v Williams 1986(4) SA 1188 A

S v Williams 1986(4) SA 1188 A

Facts of the case

» Accused shot victim and inflicting serious injuries.

» Kept alive at hospital artificially, bmo resperator.

» Doctor pronounced victim as brain dead and disconnected resporator and

deceased died.
Legal question for the court to answer
» Was the appelants conduct the victims legal cause of death?

(was the switching off of the resperator a novus actus?)

Decision of the court

» Muder conviction confirmed.

» Appalents conduct was the legal cause of death.

(The switching off of the resperator did not qualify as a novus actus.)

NB: Read and study the following court case * Generalising Theory
S v Daniels 1983(3) SA 275 A

S v Daniels 1983(3) SA 275 A

Facts of the case

102
* See Class slides

Legal question for the court to answer

» Whether A is the factual and legal cause of death?

Decision of the court

» A's conviction of murder was confirmed.

» Majority held A liable as both the factual and legal cause of C's death.

* B was aquitted from the case, because the state could not prove his involvement beyond
reasonable doubt.

NB: Read and study the following court case (Medical negligence & novus actus)
S v Tembani 2007 (2) SA 291 (SCA)

S v Tembani 2007 (2) SA 291 (SCA)Facts of the case

* See class slides

Legal question for the court to answer

» Was the accused the factual and legal cause of death?

» Was the negligence in the treatment an novus actus interveniece?

Decision of the court

» The conviction of murder was confirmed.
» The accused was both the factual and legal cause of death.
» The negligence did not serve as a novus actus.
WHY? (Fill in the blank)
*factual; condictio sine qua non; legal; novus actus.

103
 LEARNING OUTCOMES: UNIT 4

On completion of this Unit, the student will be able to:

1. Compare formally and materially defined crimes.

2. Critically discuss the theory to determine factual causation, namely the conditio sine
qua non test.
3. Explain the purpose of legal causation.
4. Map out the various theories to determine legal causation.
5. Explain the meaning of novus actus interveniens.
6. Discuss the requirements for an event to qualify as novus actus interveniens.
7. Apply his/her knowledge about the causation-element and relevant case law
towards solving practical problems that require an analysis and evaluation of criminal
liability.

*Examples of assessment questions that will be discussed during

tutorial sessions:

Lawrence is a safety representative at Fabulous Fashions. He receives

information regarding an open, live, electric wire in the workplace that holds a
risk of danger to all employees. Lawrence has a busy daily schedule and as a
result, neglects to inform the other employees of the dangerous electric wire.
This leads to the electrocution of Felicity. Felicity is transported to hospital
where they connect her to a respirator and declare her brain dead. Two weeks
later, after consultation with Felicity’s family, the doctor switches off the
respirator and Felicity dies.

Answer the following questions:

1. Does the behaviour of Lawrence qualify as “conduct” (comply with the conduct-
element of crime)? Motivate your answer.

2. Is Lawrence the factual and legal cause of Felicity’s death? Motivate your answer
with reference to case law.

NOTES:
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105
 LEARNING UNIT 5
UNLAWFULNESS

Unit 5, deals with the fourth general element of a crime, namely unlawfulness. After
having discussed the meaning of unlawfulness, the focus will be on the various
grounds of justification that can be raised as a defence against unlawfulness and the
requirements to succeed with each one of these grounds.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 79-122
OR
Snyman 2014:95-140.

Court Cases:
Self-Defence/Private Defence
S v Steyn 2010 (1) SACR 411 SCA
Ex parte die Minister van Justisie: In re S v Van Wyk 1967(1) SA 488 A
Necessity
S v Goliath 1972(3) SA 1 A
S v Mandela 2001(1) SASV 156 K
Impossibility
S v Canestra 1951 (2) SA 317 A
Superior Orders
S v Mohale 1999(2) SACR 1 W
Disciplinary Chastisement
S v Williams 1995(3) SA 632 CC
YG v S 2018 (1) SACR 64 GJ
Freedom of Religion South Africa (FOR SA) v Minister of Justice and
Constitutional Development 2019 (11) BCLR 1321 CC
Consent
S v Nkwanyana 2003(1) SASV 67 W
De minimus non curat lex
S v Kgogong 1980(3) SA 600 A

5.1 INTRODUCTION

106
De Wet and Swanepoel state that conduct is unlawful if:
- it is contrary to a clause of prohibition or decree, and
- there is no ground of justification for the conduct.
Since there is no numerus clausus of grounds of justification, the above-
mentioned description does not hold.

HOW CAN UNLAWFULNESS BE DETERMINED?

Snyman refers to various approaches followed to determine unlawfulness. For the

purpose of this course, the following approach is submitted:

1. PRIVATE LAW
In private law, unlawfulness rests on the infringement of a private interest
protected by law - thus in the violation of a subjective right.

2. PUBLIC LAW
In public law and thus also in criminal law, unlawfulness rests on the
infringement of a public interest protected by law.

3. PUBLIC INTEREST
An interest often extends further than the law is prepared to protect it. Therefore
any infringement of public interest is not necessarily unlawful. For instance, it is
in the public interest that persons are not allowed to kill another person.
However, killing a person in self-defence is not unlawful.

4. OBJECTIVE REASONABLENESS
There must thus be a criterion to determine when the public interest is protected
by law (and the infringement thereof unlawful) and when not. The criterion
whereby the extent of the protection of an interest is measured is that of
objective reasonableness.

5. CURRENT SOCIAL NORMS – BONI MORES

Objective reasonableness is considered as the criterion for the existence of
unlawfulness and the content of what is reasonable, is determined by current
social norms.

The test for unlawfulness, although also objective, differs from the reasonable
person test for negligence.

The difference is clear from the following example:

Professor Alknow, a scientist, works in his laboratory. His son, Boysie approaches him
and says that he is thirsty. Professor Alknow goes to the refrigerator in the laboratory,
looks through bottles and flasks and finds a liquid in a milk bottle which resembles
milk. He pours a glass of this liquid for Boysie. Boysie drinks it and dies. Later it was
found that "the milk" was poison which was stored in the milk bottle. Professor
Alknow's conduct was unlawful (a person may not kill a child by poisoning him) as well
as negligent (the reasonable person would not accept that a milk bottle in a
refrigerator in the laboratory always contains milk).

107
Suppose Professor Alknow was not working in a laboratory, but in his own kitchen,
Boysie asks him for some milk and Professor Alknow goes to the refrigerator, takes
out the milk bottle and pours a glass of milk for Boysie. Boysie dies because it was
later found that Professor Alknow's wife had mixed an odourless ant poison in the milk
bottle and that she had stored it for a while in the refrigerator out of Boysie's reach.
Professor Alknow's conduct of giving poison to Boysie is still unlawful, but not
necessarily negligent. The reasonable person would also under these circumstances
have mistaken the poison for milk.

Grounds of justification

Grounds of justification deal with cases of crystallised reasonableness. Instead of

reverting to objective reasonableness in each individual case, in order to determine
unlawfulness, well-known and frequent incidents are given names and a case is heard
with reference thereto. For this reason we refer to "grounds of justification" and their
"rules".

5.2 THE FOLLOWING ARE CRYSTALLISED GROUNDS OF JUSTIFICATION:

The following are crystallised grounds of justification:

* Self-defence (private defence);
* Necessity;
* Impossibility;
* Superior orders;
* Disciplinary chastisement;
* Public authority;
* Consent;
* De minimus non curat lex;
* Negotiorum gestio (unauthorised administration).

These grounds of justification shall now be dealt with separately.

5.2.1 SELF-DEFENCE/PRIVATE DEFENCE

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook
Snyman 2020: 79-95
OR
Snyman 2014:102-114.

Court Cases:
S v Steyn 2010 (1) SACR 411 SCA

108
Ex parte the Minister of Justice: In re S v Van Wyk 1967(1) SA 488 A

Definition
Self-defence/Private-defence occurs when a person protects his own interest or
those of another against an unlawful attack or such threatening attack and in
the process lawfully injures the attacker or threatening person.

Various requirements must be met before self-defence can succeed as a defence.

These are detailed as follows:

Requirements for self-defence

Requirements with respect to the unlawful attack:

The attack must be a positive omission or commission.
The attack must be unlawful.
The attack must already have begun or be immediately threatening.
The attack does not have to be directed towards the defender (it may be directed
towards a third person).

Requirements with respect to the defence against the unlawful attack:

The defence must be directed against the attacker
The defence must be a conscious self-defence action.
The defence must essentially protect the threatened interest.
The means used by the defender must not be more damaging than is necessary
to prevent the attack.

These requirements are now discussed separately.

I. THE ATTACK MUST BE A POSITIVE OMISSION OR COMMISSION

The argument that this can only be a positive commission - and not an omission
- fails. In the case where a prisoner's goal term expires and the warder neglects
to set him free, the prisoner could act in self-defence.

II. THE ATTACK MUST BE UNLAWFUL

If Ally attacks Betty and Betty tries to prevent this by way of a counter-attack,
Betty's counter-attack can be a lawful self-defence conduct. When Betty's
counter-attack exceeds the limits of self-defence, it is unlawful and Ally may, in
turn, act in self-defence.

The attack does not have to be blameworthy, because the person who acted in
self-defence does not punish, but protects his interest. Thus a person can
oppose an unlawful, but blameless attack by a lunatic in self-defence.
If I defend myself against the attack by an animal, I do not act in self-defence,
but in necessity, because the animal cannot act unlawfully. However, if the
animal is used as instrument by an attacker, I would be able to act in self-
defence against either the dog or the inciter.

109
 The question as to whether self-defence can be used for the protection of any
interest has not yet been satisfactorily decided. The tendency seems to be, with
reserve, to allow the legal protection of any kind of legal interest.

NB: Read and study the following court case

S v Steyn 2010 (1) SACR 411 SCA

S v Steyn 2010 (1) SACR 411 SCA

Facts of the case

~The appellant shot and killed her former husband when he threatened her with a
knife. The
husband had for years abused her, both mentally and physically, and had assaulted
her earlier
that evening
» Convicted for culpable homocide.
» Appeal

Legal question for the court to answer

» Whether the accuseds conduct was reasonable & could she suceed with private
defence.

Decision of the court

» Appeal Court: Acted reasonable.
» Suceeded with private defence.
» Appeal successfull and convition of culpable homocide was set
aside.

Reason;
~ Conduct necessary, because uit was to dangerous for her to
flee.

NB. Read and study

Ex parte the Minister of Justice: In re S v Van Wyk 1967(1)SA 488 A

In re S v Van Wyk 1967(1) SA 488 A * DO SELF STUDY!*

Facts of the case

110
Legal question for the court to answer
» Can the an accused suceed with private defence when killing to protect
property?

» If yes, does it not exceed the limits of private defence?

Decision of the court

» No, the limits of private defence where not exceeded.
* Because, the means used where not more damaging than what was necessary
* and the State could not prove more damaging alternatives.

III. THE ATTACK MUST ALREADY HAVE STARTED OR BE IMMEDIATELY

THREATENING:
The attack must be imminent, but not yet completed. If the attack has already
taken place or is still to take place in future, one cannot act in self-defence, and
other means must be used rather than to take the law in one's own hands.

IV. THE ATTACK DOES NOT HAVE TO BE DIRECTED TOWARDS THE

DEFENDER:
One may also in self-defence ward off unlawful attacks against other persons,
even if they are not specifically related to you.

V. THE DEFENCE MUST BE DIRECTED AGAINST THE ATTACKER

If Thabo attacks me, I may not turn against Lerato in self-defence. However,
my action against Lerato can indeed be justified by necessity. For instance
when Thabo forces Lerato to speed off with her own (Lerato’s) car from the
scene of a bank robbery - and the banker shoots the driver, Lerato, then he can
plead necessity (instead of self-defence) in defence.

When a person is killed in a pre-arranged duel, self-defence cannot be raised

as a defence. In Jansen 1983 (3) SA 534 (NC) X and Y decided to “settle their
differences” in a knife duel. During the fight Y first stabbed X, and then X
stabbed Y in the heart, killing him. The court held, quite justifiable, that X could
not rely on private defence, and convicted him of murder.

VI. THE DEFENCE MUST BE A CONSCIOUS ACTION IN SELF-DEFENCE:

Our courts have not yet pertinently decided on this aspect. Snyman alleges that
there are no reported cases on this matter.
See R v Krull l959 (3) SA 394 A on 400 where the court apparently held the
view that an action in self-defence does not have to be deliberate.
Further see S v Fick l970 (4) SA 510 N on 516 where a deliberate action in self-
defence was indeed required.

VII. THE DEFENCE MUST ESSENTIALLY PROTECT THE THREATENED

INTEREST:

111
 Where the threatened interest can be sufficiently protected in other ways, one's
own action is not permissible.

The question arises as to whether the attacked person may defend himself if
the assault can be avoided by fleeing.

According to the old authors, one does not have to flee if it is dangerous, or if
the attacked person is discredited thereby.

In R v Zikalala l953 (2) SA 568 A it was decided that one must flee unless it is
dangerous. It is apparent from S v Van Wyk that one need not flee to prevent
such an attack. This point of view is specifically confirmed in Ntsomi v Minister
of Law and Order l990(1) SA 512 C and in S v Mothoane l992 (2) SACR 383
O.

VIII. THE MEANS USED BY THE DEFENDER MUST NOT BE MORE DAMAGING
THAN IS NECESSARY TO WARD OFF THE ATTACK:
Distinguish between this requirement and the previous one: It is one question
whether it is at all necessary to raise a defence and it is another question as to
which means may be used to ward off the attack. Various tests have already
been used:

* The most important interest enjoys preference. In the Van Wyk case,
however, the interest of protection of property enjoyed preference over
the interest of protection of life.

* The method of defence must weigh up to the means of attack: In S v

Jackson 1963 (2) SA 626 A, however, a revolver is used against an
attack of fists and shoes. In S v Terblance l986 (1) PH H35 O and the
Ntsomi case (supra) where it was decided that, if a person assaults a
policeman armed with a shotgun, he only has himself to blame if the
policeman uses the shotgun against him.

* The method of defence must weigh up to the threatening danger: In both

the Van Wyk and Jackson cases the method of defence overshadowed
the threatening danger.

The current valid test is whether the means, from an objective reasonable point
of view, were necessary to ward off the attack in a given case.

Because we are here dealing with a ground of justification and not with a ground
for exclusion of fault, the question is not purely subjective as to whether the
attacked person considered the means essential. The Van Wyk case
emphasises the objective test.

COMPARISON OF THE SOUTH AFRICAN LAW ON PRIVATE DEFENCE RAISED

IN CASES OF DOMESTIC VIOLENCE WITH THE LEGAL POSITION IN CANADA

112
Abuse in the intimate inner circle of the home, with mostly children and women as the
victims, is a reality in South Africa. Victims of domestic violence, especially women
being seriously abused over a prolonged period, sometimes kill their abusive intimate
partners to protect themselves. Such a victim-offender then faces a murder charge
and possibly life imprisonment. The most common defences raised by these “abused
accused” are self-defence and non-pathological criminal incapacity, but seldom with
success. Abused persons who killed their abusers encounter numerous legal
obstacles in their search for justice.

Abused persons, who plead self-defence after having killed their abusers, usually
meet four of the requirements to succeed with this defence, namely:
a) the assault on the abused person was clearly unlawful;
b) the assault was aimed at an interest worthy of protection (generally bodily integrity);
c) the abused person’s defensive act was aimed at the abusive attacker; and
d) the amount of force used in the defensive act was reasonable to the attack.

However, the following two requirements are generally not met, namely:
i) the abused person must have been exposed to immediate or imminent danger, and
ii) the defensive act must have been necessary to avoid that danger.

In contrast to the uncertain legal position prevailing in South Africa on self-defence

and abused persons who kill their abusers, the Canadian legal system laid down clear
guidelines.

Firstly, Canada’s supreme court of appeal has significantly expanded the requirement
of immediate or imminent danger by providing for pre-emptive self-defence for
abused persons who acts before the abuser can launch another attack. Secondly, it
remains a requirement that the conduct of the abused person must still be objectively
reasonable, although it is assessed against the backdrop of the abused person’s
unique circumstances.6 In other words, the test is what would the reasonable person
do in the specific circumstances that the abused accused faced? Thus, regarding the
necessity requirement, the specific circumstances of each case will determine whether
the defensive act was necessary to avoid the danger.

The South African Supreme Court of Appeal can address the current uncertainty by
establishing clear guidelines for raising self-defence successfully by abused persons
who kill their abusers to protect themselves.

IMPORTANT
In order to determine an accused's liability when he killed someone in exceeding the
limits of self-defence, one must take note of the knowledge of unlawfulness.
6Botha, R. 2014. Strafregtelike struikelblokke in die mishandelde persoon se stryd om geregtigheid. LitNet
Akademies 11(3):190-192.

113
 - If the accused was aware of the fact that he exceeded the limits of self-
defence (he has knowledge of unlawfulness and thus, intent), then he is
guilty of murder.
- If the accused was unaware of the fact that he exceeded the limits of
self-defence, but the reasonable person would have realised this, then
the accused was negligent and he is guilty of culpable homicide.
- If neither the accused nor the reasonable person were to realise that
they exceeded the limits of self-defence, then the accused is found not
guilty.

5.2.2 NECESSITY

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:95-102
OR
Snyman 2014:114-122; 235-236.

Court Cases:
S v Goliath 1972(3) SA 1 A
S v Mandela 2001(1) SASV 156 K

Definition:
A person acts in necessity when he can only protect his own or another person’s
interests against harm by either sacrificing the interests of another innocent
person or by contravening a legal prohibition.

As with other grounds for justification, the question as to whether there was a
necessity is also objectively judged.

The following requirements are set:

1. Necessity can be caused either by human forces or by natural forces.

2. The danger must already have begun or be immediately threatening.
3. Danger to someone’s bodily integrity, life or property can be warded off in
necessity.
4. Danger to one's own person or property as well as to another person or his
property can be warded off in necessity.
5. If a person is legally obliged to endure distress, an action for the warding off
thereof is not justified by necessity. (Thus an accused who is sentenced to
death cannot act in necessity against persons who lead him to the gallows).

114
6. The perpetrator himself cannot create the necessity. See examples in Snyman.
7. The person's action must be the only way out of distress.
8. Not more damage must be caused than is necessary.
9. The sacrificed interest must not be greater than the protected interest.
[A difficult question is whether it is justifiable to take an innocent third party's
life in necessity in order to protect one's own life.]

NB: Read and study the following court case

S v Goliath 1972(3) SA 1 A

S v Goliath 1972(3) SA 1 A Necessity

Facts of the case

*
See

Legal question for the court to answer class

slides

Decision of the court

NB: Read and study the following court case

S v Mandela 2001(1) SACR 156 K

S v Mandela 2001(1) SACR 156 K

Facts of the case

Legal question for the court to answer

» Could an accused succeed with compulsion by means of
necessity?

Decision of the court

115
» No, the conduct of the accused was unnecessary seeing as there where
alternatives available.

* Accused was convicted of both crimes.

IMPORTANT
DISTINCTION BETWEEN PRIVATE DEFENCE AND NECESSITY

Private defence and necessity are closely related. In both cases the person protects
interests which are of value to him/her such as life, physical integrity and property
against threatening danger.

There are however two important grounds of distinction.

1. The origin of the situation of emergency.

In private defence it always stems from an unlawful (and therefore human)
attack; with necessity it may stem from an unlawful attack or from chance
circumstances, such as natural occurrences.

2. The object towards which the act of defence is directed.

In private defence, it is always directed at an unlawful human attack; with
necessity, it is directed at either the interests of another innocent third party or
it merely amounts to a violation of a legal provision.

5.2.3 IMPOSSIBILITY

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:116-117
OR
Snyman 2014:60-62

Court Cases:
S v Canestra 1951(2) SA 317 A

The defence of impossibility is based on the maxim "lex non cogit ad impossibilia" (the
law does not compel the performance of impossibilities). This defence is only raised

116
where an obligation rests on someone to do something positive, but it was objectively
impossible for him to comply with the obligation.

There are three requirements:

1. A positive obligation imposed by law.
2. It is physically impossible to comply with the law.
3. The impossibility is not due to the accused person’s fault.

The defence of impossibility can only be raised when one neglects to comply with a
legal provision. The infringement of a legal provision cannot purely and simply resort
under impossibility.

A legal provision, for instance, reads as follows: "Nobody may walk on the grass". You
now do walk on the grass. It is not a defence to state that it was impossible for you not
to walk on the grass because there was no rule ordering you to walk somewhere else.
The prohibition must thus first be described as an order: "Everybody must keep off the
grass". It can now be logically stated that it was impossible for you to comply with the
order because A pushed you onto the grass.

NB: Read and study the following court case

R v Canestra 1951(2) SA 317 A

R v Canestra 1951(2) SA 317 (A) Impossibility

Facts of the case

Legal question for the court to answer See

class

slides

Decision of the court *

5.2.4 SUPERIOR ORDERS

117
 VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 112-116
OR
Snyman 2014:134-136

Court Cases:
S v Mohale 1999 2 SACR 1 W

This defence is of special relevance where junior persons in the army or police have
committed a crime by order of a person senior in rank.

Requirements for a defence of superior orders are:

1. The order must emanate from a person placed in authority over the
subordinate.
2. The subordinate must have been under a duty to obey the order.
3. The subordinate must have done no more than is necessary to obey the order.

Only actions following orders which are clearly lawful can serve as defence. If a person
obeys an order which is clearly unlawful, he can be held liable for the foreseeable
consequences thereof.

NB: Read and study the following court case

S v Mohale 1999 2 SACR 1 W

S v Mohale 1999 2 SACR 1 W Superior orders

Facts of the case

see

class

slides

Legal question for the court to answer *

Decision of the court

118
5.2.5 DISCIPLINARY CHASTISEMENT

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:117-120
OR
Snyman 2014:137-138

Court Cases:
S v Williams 1995 (3) SA 632 CC
YG v S 2018 (1) SACR 64 GJ
Freedom of Religion South Africa (FOR SA) v Minister of Justice and
Constitutional Development 2019 (11) BCLR 1321 CC

Previously the infliction of bodily harm upon children was justified in certain
circumstances. However, the law was transformed to comply with children’s
constitutional rights, which are enshrined in the Constitution of the Republic of South
Africa.

o Juvenile whipping imposed by the courts

Parents’ physical chastisement of their children differs from judicialy sanctioned

corporal punishment. As was mentioned in unit 1, the practice of juvenile whipping as
a form of punishment was declared unconstitutional by the Constitutional Court in S v
Williams 1995 (3) SA 632 CC. The court ruled that such corporal punishment imposed
by the courts violates juveniles’ constitutional right to dignity and the right not to be
subjected to cruel, inhuman or degrading treatment or punishment.

NB: Read and study the following court case

S v Williams 1995(3) SA 632 CC

S v Williams 1995(3) SA 632 CC

Facts of the case

119
 * See lecture slides *

Legal question for the court to answer

» Whether s294 of the Criminal Procedure Act is consistent with the
Consitution?

Decision of the court

» The CC held that s294 of the CPA was unconstitutional.
WHY?
» Violates ss10 and 11(2) - not to be subject to cruel/ degrading punishment of the Inter Con and could
not be save by s33.

o Coporal punishment in schools

In terms of section 10 of the South African Schools Act 84 of 1996, no person may
administer corporal punishment at a school to a learner.

o Disciplinary/parental chastisement

Parents’ infliction of bodily harm upon their children, which would otherwise amount to
assault, could previously be justified by raising disciplinary chastisement as ground of
justification. It could only be raised by a parent, guardian or someone in loco parentis
(such as a housefather or hostel supervisor).

The requirements for disciplinary chastisement were as follows:

1. The minor must deserve the punishment.
2. It had to be moderate (reasonable) punishment, measured against the
norm of objective fairness. age, gender, build, agressiveness, ect.
3. The punishment had to be imposed with the aim of improving the minor's
behaviour.

o Disciplinary chastisement declared unconstitutional

The courts recently ruled on whether the parental reasonable-chastisement defence

to a charge of assault against a parent is compatible with the Constitution.

YG v S 2018 (1) SACR 64 (GJ)

Facts
X found Y, his 13-year old son, in their home using an IPad and accused Y of watching
pornographic material. Y denied it, but X punched him with his fist several times on
his chest and thighs and kicked him with his bare foot. X testified that they are a
Muslim family in which pornography was strictly forbidden.
X was convicted of assault against Y (and against his wife).
X appealed against the convictions.
Legal question

120
1. Did X exercise his right as a parent by meting out only reasonable corporal
punishment to discipline Y?
2. Is disciplinary chastisement as ground of justification compatible with the
Constitution?
Decision of the court
1. No, the conviction of assault on Y is confirmed.
2. No, disciplinary chastisement as ground of justification is declared
unconstitutional prospectively in line with the principle of legality.
Reasons for the court’s decision
1. X had exceeded the limits of reasonable or moderate chastisement.
2. The defence of parental chastisement violates a child’s right to
- dignity (sec 10) - children are to be respected and protected;
- be free from all forms of violence (sec 12), also from physical chastisement;
- equal protection of the law (sec 9). This defence allows discrimination against
children because of their age in that it does not protect children from assault in
circumstances where adults who are subjected to the same level of force are
protected.
* There is no justification for the infringement of these rights.
* The principle of legality prohibits retrospective application of the law, the ruling on
the unconstitutionality of the defence was not applied to the accused.

Freedom of Religion South Africa (FOR SA) v Minister of Justice and

Constitutional Development 2019 (11) BCLR 1321 (CC)

* On appeal: FOR SA challenged the ruling made in the YG-case by arguing that
reasonable and moderate chastisement of children by their parents does not
constitute abuse or assault and does not violate any rights of a child.

* Unanimous decision of the Constitutional Court:

The appeal was dismissed: the court declared the defence unconstitutional.

* Reasons for the court’s decision

The defence of reasonable parental chastisement is inconsistent with the provisions
of sections 10 (right to dignity), 12 (right to be free from all forms of violence), and
28(2) (the child’s best interests are paramount in all matters concerning the child)
of the Constitution.

Children may still be effectively disciplined by using less restrictive means.

5.2.6 PUBLIC AUTHORITY / OFFICIAL CAPACITY

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:107-112

121
OR
Snyman 2014:128-134

In certain circumstances persons are authorised by statutory provisions or by inherent

public authority to perform certain conduct which would otherwise be unlawful.

o Authorised by court order

When a person is for instance authorised to execute a court order and consequently
removes goods from the property of a judgment debtor, he does not commit theft.

o Some public officials

Acts which would otherwise be unlawful are justified if public officials are entitled to
perform it by virtue of the office they hold. For example, a court clerk whose duty it is
to to lock up drugs as exibits in a court case, is not guilty of the unlawful possession
of drugs.
o Legal arrest
Sections 39-53 of the Criminal Procedure Act 51 of l977 define powers of officials and
private persons to arrest others. Should the arrestor act beyond the scope of these
powers, he or she acts unlawfully and shall be held liable for any crime that is
committed.

5.2.6.1 Transformative effect of the Bill of Rights on the statutory defence of

public authority.

Killing of persons in certain conditions.

The formulation of the previous section 49(2) was especially drastic and had often
caused problems. This section authorised the arrestor under certain circumstances to
kill someone who either tried to escape or who offered resistance to arrest.

In Ex parte Minister of Safety and Security: In re S v Walters 2002(4) SA 613 CC, the
Constitutional Court held section 49(2) to be “inconsistent with the Constitution, as it
infringed upon the rights to dignity, life and security of person and could not be saved
by the Constitution’s limitations clause”.7 The court further held that the narrow test of
proportionality between the seriousness of the relevant offence and the force used
should be expanded to include a consideration of the proportionality between the
nature and degree of the force used and the threat posed by the fugitive to the safety
and security of police officers, other individuals and society.8

To conclude, the Constitution thus had a significant transformative effect on the

Criminal Procedure Act in that the formulation of the previous section 49(2), which
violated certain rights enshrined in the Bill of Rights, was amended in 2012.

7 Burchell J. 2016. Principles of criminal law. 5th ed. Claremont:Juta on p.150

8 Burchell 2016:150.

122
5.2.6.2 The current redefined s49 and its interpretation.

Section 49 as amended in 2012 reads as follows:

‘‘Use of force in effecting arrest

49. (1) For the purposes of this section—
(a) ‘arrestor’ means any person authorized under this Act to arrest or to assist
in arresting a suspect; [and]
(b) ‘suspect’ means any person in respect of whom an arrestor has [or had] a
reasonable suspicion that such person is committing or has committed an
offence; and
(c) ‘deadly force’ means force that is likely to cause serious bodily harm or death
and includes, but is not limited to, shooting at a suspect with a firearm.
(2) If any arrestor attempts to arrest a suspect and the suspect resists the
attempt, or flees, or resists the attempt and flees, when it is clear that an
attempt to arrest him or her is being made, and the suspect cannot be
arrested without the use of force, the arrestor may, in order to effect the
i.e Essential balance =
arrest, use such force as may be reasonably necessary and proportional violence +
seriousness +
in the circumstances to overcome the resistance or to prevent the suspect danger to
public
from fleeing: Provided that the arrestor may use deadly force only if—
» Immediate
(a) the suspect poses a threat of serious violence to the arrestor or any
other person; or
(b) the suspect is suspected on reasonable grounds of having committed
a crime involving the infliction or threatened infliction of serious bodily
harm and there are no other reasonable means of effecting the arrest,
whether at that time or later.’’

5.2.7 CONSENT

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:102-106
OR
Snyman 2014:122-127

123
Court Case:
S v Nkwanyana 2003(1) SACR 67 W

The criterion for legally valid consent as a defence is difficult to describe because so
many factors can influence this.

Burchell (2016:209) defined it as follows:

“For consent to succeed as a defence the following requirements must be
satisfied:
1. the complainant ‘s consent in the circumstances must be recognised by
law as a possible defence;
2. it must be real consent; and
3. it must be given by a person capable in law of consenting.”

It is suggested that the criterion of objective fairness should also be applied here. Thus
consent shall be a valid ground for justification if it is, according to current social norms,
reasonable consent to harm or risk of harm.

On the basis of this criterion, a person cannot consent that someone else may for
instance kill him.

Consent must be voluntary and must not be given or extorted under duress.

The prejudiced person must also be fully aware of the nature and scope of what he
consented to.

NB: Read and study the following court case

S v Nkwanyana 2003(1) SACR 67 W

S v Nkwanyana 2003(1) SACR 67 W

Facts of the case

Legal question for the court to answer

Decision of the court

124
Consent as defence in physician assisted suicide and transformative
constitutionalism

The general rule is that consent shall only be a valid ground for justification if it is,
according to current social norms, reasonable consent to harm. Therefore, the consent
to a charge of murder (Y consents that X may kill him/her) is not a valid defence.
However, the Supreme Court of Appeal made an insightful ruling in Minister of Justice
and Correctional Services and Others v Estate Late James Stransham-Ford and
Others 2017 (3) SA 152 (SCA). In this case a terminally-ill person with lung cancer
applied to the Gauteng High Court that a medical doctor be allowed to assist him to
end his life in a dignified manner. Although the applicant died two hours before the
order was made, the court still granted his application, based on court’s duty to develop
the common law to make it compatible with the Constitution. The court ruled that the
absolute prohibition on voluntary active euthanasia or assisted suicide violates various
constitutional rights, including the right to dignity.

However, in the appeal to the Supreme Court of Appeal, the order was set aside.

125
5.2.8 DE MINIMUS NON CURAT LEX

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:121-122
OR
Snyman 2014:139-140

Court Case:
S v Kgogong 1980(3) SA 600 A

In l980 the Appeal Court (as it was then), recognised triviality as a ground for
justification. There is no unlawfulness where a crime is so trivial that it should not be
threatened with punishment according to the objective standards of fairness.

If the perpetrator was unaware of the triviality (and was thus of the subjective opinion
that he committed a serious crime), he ought to be found guilty of an attempt to commit
that crime.

NB: Read and study the following court case

S v Kgogong 1980(3) SA 600 A

S v Kgogong 1980(3) SA 600 A

Facts of the case

Legal question for the court to answer

Decision of the court

126
5.2.9 NEGOTIORUM GESTIO (UNAUTHORISED ADMINISTRATION)

STUDY: Snyman 2020:106-107 or Snyman 2014:127-128

Snyman also distinguishes negotiorum gestio as a possible ground for justification, but
he admits that it has not yet been raised as defence in a criminal case. The reason is
probably that under circumstances where a person protects the interest of another, in
his absence and without his knowledge, it can usually be stated that the person acted
in an emergency for the protection of the property of a third person. The defence of
necessity can be raised in such a situation.

127
 LEARNING OUTCOMES: UNIT 5

On completion of this Unit, the student will be able to:

1. Explain the meaning of unlawfulness and refer to Snyman’s approach in his/her

description.
2. Compare the test to determine unlawfulness with the test to determine negligence.
3. Map out the various grounds of justification that can be raised against the element
of unlawfulness.
4. Critically discuss the requirements in order to succeed with each one of these
grounds of justification.
5. Distinguish between private defence and necessity.
6. Distinguish between private defence and putative private defence.
7. Compare the South African law on private defence raised in cases of domestic
violence with the legal position in Canada.
8. Reflect on the transformative effect of the Bill of Rights on the defence of disciplinary
chastisement.
9. Reflect on the transformative effect of the Bill of Rights on the statutory defence of
public authority.
10. Apply his/her knowledge about the unlawfulness-element and relevant case law
towards solving practical problems that require an analysis and evaluation of
criminal liability.

*Examples of assessment questions that will be discussed during

tutorial sessions:

o Lerato’s disappointed parents consider to discipline her and approach you for
legal advise. Briefly explain to them the transformative effect of the Bill of Rights
on the defence of disciplinary chastisement.

o Hero walks down the street when he suddenly hears someone shouting for
help. He turns around and sees how Rex assaults his girlfriend. Hero runs
towards Rex and knocks him out by hitting him once with the fist. A few days
later, Rex opens a charge of assault against Hero.

Answer the following questions:

128
 1. State the ground of justification (defence) that Hero can raise as defence?
2. State all the requirements to be met in order to succeed with the defence
stated above.
3. Will Hero succeed with this defence?
4. Explain the difference between private defence and necessity.

NOTES:
___________________________________________________________________
___________________________________________________________________
Requirement to succeed with Consent as GOJ:
___________________________________________________________________
» Conplainant's consent
Murder?___________________________________________________________________
No. Example: uthenasia is still a criminal offence.
Assault?___________________________________________________________________
___________________________________________________________________
Sometimes. You cannot give someone consent to assault you.
Except: ___________________________________________________________________
~ Medical oparations.
___________________________________________________________________
~ In sports-matters; boxing.
___________________________________________________________________
Consent to sexual intercourse:
___________________________________________________________________
» Girls under 12yoa = NO
» Drunk___________________________________________________________________
person = DEPENDENT; level of drunkness.
» Mental___________________________________________________________________
illness = DEPENDENT, on level of illness.

Types of___________________________________________________________________
consent:
» Express___________________________________________________________________
or ___________________________________________________________________
» Tacitly; example when player walks onto field=consents to possible injury (assault).
___________________________________________________________________

129
 LEARNING UNIT 6
CRIMINAL ACCOUNTABILITY

Unit 6 deals with the fifth general element of a crime, namely criminal
accountability/capacity. The test for criminal capacity is discussed as well as the effect
of diminished criminal capacity. The four defences that can be raised against criminal
capacity, also enjoy attention.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:136-139; 156-158; 149-156;192-204;204-208;139-149
OR
Snyman 2014:155-175; 216-235

Court cases:
Diminished accountability:
S v Mnisi 2009(2) SACR 227 SCA
Youth:
S v Pietersen 1983(4) SA 904 E
Mental illness:
S v Kavin 1978(2) SA 731 W
S v Mcbride 1979(4) SA 313 W
Intoxication:
S v Johnson 1969(1) SA 201 A
S v Chretien 1981(1) SA 1097 A
S v September 1996(1) SACR 325 A
Provocation, emotional stress and non-pathological unaccountability:
S v Campher 1987(1) SA 940 A
S v Wiid 1990(1) SACR 561 A
S v Moses 1996(1) SACR 701 K
S v Eadie 2002(1) SACR 663 SCA

6.1 INTRODUCTION

Study: Snyman 2020: 136-139 or Snyman 2014:155-164.

6.2 CRIMINAL ACCOUNTABILITY/CAPACITY

130
What is criminal accountability/capacity?

The mental abilities which a person must have in order to have criminal capacity are:
1. the ability to appreciate the wrongfulness of his conduct, and
2. the ability to conduct himself in accordance with such an appreciation of
the wrongfulness of his conduct.

If one of these abilities are lacking, the person concerned lacks criminal capacity and
cannot be held criminally accountable for the unlawful act he has committed.
* Criminal Cap is step before FAULT *

It is very important to distinguish between:

1. the test for accountability/capacity; and
2. the test for intention.

No person can form intention without criminal accountability. Knowledge of

unlawfulness and the mental ability to exercise self-control are necessary for intention.

To sum up: with criminal accountability the question is whether the person possessed
certain mental abilities at the time of committing an offence, while with intention, the
question is how a person applied these mental abilities.

It is also important to distinguish between involuntary conduct and criminal

incapacity.

Snyman explains that when conduct cannot be controlled by the will, it is involuntary,
such as, for example, when a sleep-walker tramples on somebody, or an epileptic
swings his hand while having an epileptic fit and hits someone in the face. If X’s
conduct is involuntary, it means that X is not the author of the act or omission; it was
then not X who committed an act, but rather something that happened to X.

If a person’s conduct is involuntary, criminal liability is excluded and the accused

cannot be convicted of the crime. Accordingly, it will not be necessary to deal with the
other elements of a crime.

If a person’s conduct is not involuntary, the other elements of a crime (including

criminal incapacity) must also be proven by the state before criminal liability will follow.

The test in order to establish criminal capacity is stated above.

It is important to note that some defences may exclude both voluntary conduct as well
as criminal capacity, for example, intoxication, depending on the degree thereof.

131
From the discussion of the definition of criminal accountability, it is apparent
that the concept comprises two psychological legs. It can be summarised as
follows:

TEST FOR CRIMINAL ACCOUNTABILITY

FIRST LEG SECOND LEG

Ability of the accused to Ability of the accused to act

appreciate the wrongfulness in accordance with such an
of his act or omission appreciation of the wrongfulness
of his act or omission

COGNITIVE CONATIVE

(The ability to differentiate) (The power of resistance)

Cognitive mental functions Conative mental functions

Person’s reason or intellect. A person is not like an animal

Ability to perceive, to reason, and can control his behaviour.
and to remember. Able to make a decision.
Set himself a goal, pursue it.
Able to resist impulses or
desires.
Emphasis on a person’s insight Emphasis is on self-control.
and understanding.

VERY IMPORTANT

TEST FOR CRIMINAL ACCOUNTABILITY/CAPACITY CAN BE FOUND IN

SECTION 78(1) OF THE CRIMINAL PROCEDURE ACT 51 OF 1977

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 defect
which makes him incapable –
(a) of appreciating the wrongfulness of his act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his act or
omission,
shall not be criminally responsible for such act or omission.

132
6.3 DIMINISHED ACCOUNTABILITY

What is diminished accountability?

There is diminished accountability when the ability to distinguish between right

and wrong and the ability to exercise self-control over behaviour are not totally
absent, but are clouded or impeded as the result of one or other circumstance.

Section 78(7) of the Criminal Procedure Act 51 of 1977 provide for diminished
accountability. Diminished accountability only influences punishment – it serves as a
mitigating factor.

NB: Read and study the following court case

S v Mnisi 2009 (2) SACR 227 SCA

S v Mnisi 2009 (2) SACR 227 SCA

Facts of the case *

See

Class

Slides

Legal question for the court to answer *

Decision of the court

6.4 UNACCOUNTABILITY

The defence of unaccountability is mostly based on one of the following four

circumstances:

 Youth
 Mental illness`
 Intoxication
 Provocation, emotional stress (non-pathological criminal unaccountability).

133
Each of these circumstances is discussed separately.

6.4.1 YOUTH

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:156-158
OR
Snyman 2014:173-175

Court case:
S v Pietersen 1983(4) SA 904 E

Sections 7 and 11 of the Child Justice Act 75 of 2008 replaced the common law
provisions relating to the criminal capacity of young persons. The Act provides as
follows:

I. Children under the age of 10 years

Under the criminal law there is an irrefutable presumption that a child under the
age of 10 years is criminally unaccountable. Such a child is considered doli
incapax or culpae incapax.

II. Children between 10 and 14 years

There is a rebuttable presumption9 that children between the ages of 10 and l4
years are not criminally accountable.

III. Children of 14 years and older

A child of 14 years and older is treated the same as an adult.

Test for criminal accountability of youths

The test for criminal accountability based on youth is stipulated by section 11(1) of the
Child Justice Act 75 of 2008 and reads as follows:

(1) The State must prove beyond reasonable doubt the capacity of a child
who is 10 years or older but under the age of 14 years to appreciate the

9 The meaning of this phrase is explained in Snyman 2014:173.

134
 difference between right and wrong at the time of the commission of an
alleged offence and to act in accordance with that appreciation.

In general, youth is also considered as a mitigating circumstance.

See S v Lehnberg and Another 1975(4) SA 553 A.

NB: Read and study the following court case

S v Pietersen 1983(4) SA 904 E

S v Pietersen 1983(4) SA 904 E

Facts of the case

Legal question for the court to answer

Decision of the court

6.4.2 MENTAL ILLNESS

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:149-156
OR
Snyman 2014:164-172

Court cases:
S v Kavin 1978 (2) SA 731 W
S v Mcbride 1979 (4) SA 313 W

135
All persons are normal.

In terms of the common law there is a presumption that all persons are normal. This
presumption gives rise to the fact that there is prima facie proof that an accused was
mentally normal when he committed the crime.

This common law presumption is now a statutory presumption. Section 78 of the

Criminal Procedure Act 51 of 1977 was amended to make it a statutory presumption.
In terms thereof the state does not have to prove criminal accountability in every
criminal case. If an accused person wishes to raise the defence of criminal
unaccountability on the basis of mental illness or disease, he must refute the
presumption on a balance of probabilities. The position will be the same where the
state raises the issue.

The new amended section 78(1A) of the Criminal Procedure Act 51 of 1977 reads as
follows:
Every person is presumed not to suffer from a mental illness or mental defect
so as not to be criminally responsible in terms of section 78(1), until the contrary
is proved on a balance of probabilities.

Section 78(1B) reads as follows:

Whenever the criminal responsibility of an accused with reference to the
commission of an act or an omission which constitutes an offence is in issue,
the burden of proof with reference to the criminal responsibility[capacity] of the
accused shall be on the party who raises the issue.

Historical overview:

English law
Initially our courts adjudicated the question of criminal accountability on the basis of
the so-called "M'Naghten" rules. These rules practically meant that it was merely noted
whether the accused's mental illness or disease caused an inability to differentiate
between right and wrong (the so-called "right-wrong" test).

In South Africa from the beginning of this century the "M'Naghten" rules have been
expanded and mental illness or disease, which leads to an irresistible impulse to
commit an unlawful act, was also regarded as a valid defence even though the
perpetrator realised that what he was doing was wrong.

Basically the "M'Naghten" rules in combination with the irresistible impulse-test require
the same two mental abilities which have been noted previously, namely the ability to
distinguish between right and wrong and the ability to exercise self-control.

Report of Inquiry to the Accountability of Mentally Ill Persons:

However, in l967, the Rumpff Commission recommended that the term "irresistible
impulse" must be disposed of and a new description was proposed.

Section 78(1) of the Criminal Procedure Act 51 of 1977:

136
Consequently, section 78(1) of Act 51 of l977 was placed on the statute book and it
now comprises the current test for criminal accountability in cases of mental illness or
disease.

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 defect which makes him incapable -
(a) of appreciating the wrongfulness of his act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his
act or omission,
shall not be criminally responsible for such act.

Section 78(2) of the Criminal Procedure Act 51 of 1977 now also provides not only for
mental illness or mental defect, but also for any other reason not to be criminally
responsible.

Section 78(2) reads as follow:

If it is alleged at criminal proceedings that the accused is because of mental
illness or mental defect or for any other reason not criminally responsible for
the offence charged, or if it appears to the court at criminal proceedings that the
accused might for such a reason not to be so responsible, the court shall in the
case of an allegation or appearance of mental illness or mental defect and may,
in any other case, direct that the matter be inquired into and be reported on in
accordance with the provisions of section 79.

The word "mental illness" indicates that the condition of the accused does not have
to be permanent.

WHAT DO YOU UNDERSTAND UNDER THE TERMS MENTAL ILLNESS AND

MENTAL DISORDER/DEFECT?

 The words are not defined in the Act.

 One must be suffering from a known or identified mental illness.
 The illness must be of a pathological nature.

MENTAL ILLNESSES THAT CONSTITUTE INSANITY

In terms of the Diagnostic and Statistical Manual of Mental Disorders of the

American Psychiatric Association, mental illness can be classified as follows

i. Organic disorders
Caused by injuries to the brain.
ii. Mental retardation
Usually from an early age.
iii. Substance misuse
Psychoactive medication, alcohol, dagga
iv. Psychological disorders

137
 Psychosis.
v. Neurosis
vi. Personality disorders

In S v Kavin 1978(2) SA 721 W on 737A-C it was decided that the test of section 78(1)
is wider than the test for ‘irresistible impulse’. Not only impulsive behaviour but also
behaviour (as the result of a gradual disintegration of personality)- whereby a person
may suffer a mental illness which makes him incapable to act in accordance with the
realisation of right or wrong, is now accepted as a defence.

NB: Read and study the following court case

S v Kavin 1978(2)SA 721 W
S v Kavin 1978(2) SA 721 W

Facts of the case

Legal question for the court to answer

Decision of the court

NB: Read and study the following court case

S v Mcbride 1979(4)SA 313 A

S v Mcbride 1979(4) SA 313 A

Facts of the case

Legal question for the court to answer

Decision of the court

138
PSYCHOPATHY
Psychopathy was and is still not regarded as a mental illness or disease which in itself
(in the absence of any other additional factors) leads to criminal unaccountability.
Psychopathy combined with other mitigating circumstances has, however, given rise
to the extenuation of punishment.

Mitigating factors
Other mental illnesses which do not lead to criminal unaccountability may also lead to
mitigation of punishment. In S v De Boer l968 (4) SA 866 A a state of "psychological
infection" was accepted as mitigation of punishment.

Diminished accountability
Diminished accountability10 had already been described by Matthaeus and it was
accepted under common law. Mental illness or disease may cause diminished criminal
accountability and it is regulated in section 78(7) of the Criminal Procedure Act.
According to this, it can only affect the sentence.

What happens to an accused if he succeeds with a defence of mental illness or

mental defect?

The court must give a finding of not guilty and declare the accused as a state patient
in terms of section 78(6) of the Criminal Procedure Act 51 of 1977.

S 78(6) (as amended) makes provision for the following orders:

* where the accused is charged with:

-murder;

-culpable homicide;

10 See discussion of diminished accountability under 6.3 above.

139
-rape, compelled rape; or

-another charge involving serious violence; or

* where the court considers it to be necessary in the public interest,

the court can direct that the accused be:

1) detained in a psychiatric hospital or a prison pending the decision of a

judge in chambers;

2) admitted to, detained and treated in an institution;

3) released subject to conditions the court considers appropriate; or

4) released unconditionally.

In all other cases, the court can only direct that the accused be dealt with as set out in
2, 3, or 4 directly above. Detention in a psychiatric hospital or prison is no longer an
option (s.78 (6) CPA).

What happens to the accused if a defence of mental illness is not successful?

The case will resume in the normal manner.

6.4.3 INTOXICATION

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:192-204
OR
Snyman 2014:216-230

Court cases:
S v Johnson 1969 (1) SA 201 A
S v Chretien 1981 (1) SA 1097 A
S v September 1996 (1) SACR 325 A

INTOXICATION

140
VOLUNTARY DRUNKENESS INVOLUNTARY DRUNKENESS

Voluntary drunkenness
According to common law, voluntary drunkenness could never be raised as an excuse
for a crime. For the present position, see S v Chretien 1981(1) SA 1097 A.

Involuntary drunkenness
Involuntary drunkenness is intoxication brought about without X’s will/consent (X is
forced to swallow liquor) or knowledge (alcohol secretly put in X’s drink). Involuntary
drunkenness is a complete defence on a charge of a crime commtted during the
intoxication.

If the defence of involuntary alcohol intake is raised, the accused must, after the close
of a prima facie state case, on a balance of probabilities indicate that there is a
reasonable possibility that there was no fault on his part at the time when he took in
the alcohol. See S v Hartyani l980(3) SA 613 T.

Actio libera in causa

However, should drunkenness arise as the result of an actio libera in causa (where a
person drinks himself into a drunken state with the purpose of getting the courage to
commit a crime), then fault is already present at the drinking stage. Such a perpetrator
uses his state of intoxication as an instrument to commit a crime, and will be held
criminally liable therefore.

Intoxication leading to mental illness

When drunkenness leads to mental illness or disease, it is treated as such - R v
Holiday l924 AD 250.

A DEFENCE OF INTOXICATION

A. POSITION BEFORE 1981

What was the position of intoxication as defence before 1981?

NB: Read and study the following court case

S v Johnson 1969(1)SA 201 A

S v Johnson 1969(1) SA 201 A

Facts of the case

141
Legal question for the court to answer

Decision of the court

B. POSITION AFTER 1981

What is the position of intoxication as defence after 1981?

NB: Read and study the following court case

S v Chretien 1981(1) SA 1097 A

S v Chretien 1981(1) SA 1097 A

Facts of the case

Legal question for the court to answer

Decision of the court

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 *Make your own summary: What was the effect of the Chretien
decision on intoxication as defence in criminal proceedings?

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NB. CRIMINAL LAW AMENDMENT ACT 1 OF 1988

As a result of discontent in the community with the consequences of the Chretien case
which, although it was correct according to criminal law, entailed that a person who
commits a crime in a drunken state gets off lighter than a person who commits the
same crime in a sober state, the legislator has now regulated the position by statute.

The Criminal Law Amendment Act No 1 of l988 reads as follows:

1.(1) Any person who consumes or uses any substance which impairs his faculties
to appreciate the wrongfulness of his 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 faculties were impaired as
aforesaid, shall be guilty of an offence and shall be liable on conviction to the
penalty, except the death 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.
2. Whenever it is proved that the faculties of a person convicted of any offence
were impaired by the consumption use of a substance when he committed that
offence, the court may, in determining an appropriate sentence to be imposed
upon him in respect of that offence, regard as an aggravating circumstance the
fact that his faculties were thus impaired."

The effect of this Act is that a person, who commits a crime while he is unaccountably
drunk, is found not guilty on that charge but instead thereof is convicted of the
contravention of section 1(1) of Act 1 of l988. It is not necessary for this section to be
included in the charge sheet as section 1(2) has the effect that a conviction of
contravening section 1(1) of the Act is a competent verdict on any charge if it is
apparent that the accused person's faculties were impaired by the voluntary intake of
alcohol or something else.

143
In terms of section 2 of the Act, the use of alcohol before the commission of a crime is
also not per se a mitigating circumstance.

A valid defence on a charge of the contravention of section 1 of this Act is when an

accused can indicate that he was not aware of the effect of the substance which he
consumed or that he was forced to consume it.

Note that the onus of proof creates a problem for the prosecution. Under normal
circumstances, the prosecution will attempt to prove, beyond reasonable doubt, that
an accused was not unaccountably drunk. However, if the defence can indicate a
reasonable possibility that the accused was indeed unaccountably drunk, the state will
not have acquitted itself of its onus of proof, and it must revert to Act 1 of l988. Now
the State must suddenly prove that the accused was indeed unaccountably drunk -
not only as a reasonable possibility (as indicated by the accused) but that it was so
beyond reasonable doubt.

If the defence succeeds in indicating a reasonable possibility that the accused was not
unaccountably drunk, and the state fails to strengthen the reasonable possibility to a
finding that the accused was beyond reasonable doubt unaccountably drunk, the
accused can still, on the authority of the decision in S v September, be acquitted.

NB: Read and study the following court case

S v September 1996(1) SACR 325 A

S v September 1996(1) SACR 325 A

Facts of the case

Legal question for the court to answer

Decision of the court

INTOXICATION AS A DEFENCE IN SOUTH AFRICAN CRIMINAL LAW

COMPARED TO THE LEGAL POSITION IN CANADA

144
There are mainly two approaches to intoxication as a defence in criminal law.

Firstly, the lenient approach entails that the rules of criminal liability apply to
intoxication as they would to any other crime. Perpetrators of crime who are intoxicated
to such an extent that they
(a) cannot act voluntarily (conduct element is not proven), or
(b) are unaccountable (criminal capacity is not proven) cannot be convicted of the
primary offence charged. Thus intoxication serves as a complete defence.

Secondly, the unyielding approach is based on the premise that it is unacceptable

for a sober person to be punished for a crime while an intoxicated person who commits
the very same crime goes scot-free. Therefore intoxication does not constitute a
complete defence.

Historically, South African criminal law followed the unyielding route, but later adopted
the rule of specific intent. However, in 1981 the Appellate Division in the Chretien
case essentially adopted the lenient approach. To contain the effects of the Chretien
judgment that an intoxicated person who commits a crime may be acquitted, the
Criminal Law Amendment Act 1 of 1988 was promulgated. This Act created a
statutory crime, of which an accused who committed a crime while intoxicated may be
convicted.

The historical position and legal developments on intoxication in South Africa and
Canada show striking similarities. Both countries followed the rule of “specific intent”,
which means that intoxication could exclude “specific intent”, that is required for certain
crimes such as (a) murder or (b) assault with the intent to do grievous bodily harm.
However, the court could still convict the accused of a less serious crime that does not
require a “specific intent”, such as (a) culpable homicide or (b) common assault. Both
jurisdictions later abolished the rule of “specific intent” following radical court rulings –
Chretien in South Africa and R v Daviault 1994 3 SCR 63 (1994) in Canada.
Subsequently, both South Africa and Canada promulgated legislation to curb the
lenient approach.

In essence, the current South African position on voluntary intoxication as a defence

is as follows:
(a) If the accused was too intoxicated to either (i) act voluntarily or (ii) to have criminal
accountability, he cannot be convicted of the primary offence charged, but may be
found guilty of section 1 of Act 1 of 1988.
(b) If the accused was accountable but too intoxicated to form intent, he cannot be
convicted of a crime requiring intent, nor of a violation of section 1 of Act 1 of 1988.
However, he may still be convicted of a crime requiring negligence and his intoxication
will not exclude negligence.

A shortcoming of the 1988 Act is demonstrated in the scenario where a person who
for example commits assault was accountable but too intoxicated to form intent. In
such a case he cannot be convicted of assault (requiring intent), nor of a violation of
section 1 of Act 1 of 1988. There is also no such thing as negligent assault in South
Africa and consequently, a complete acquittal may follow.

145
In Canada the Canadian Criminal Code was amended after the Daviault case.
Different from the South African creation of a statutory crime, the Canadian law
codified the defence of voluntary intoxication and placed restrictions on the use of this
defence. The Canadian law provides that the defence of voluntary intoxication may
exclude specific intent, but it may only be raised against a crime requiring general
intent if the accused did not deviate from a “standard of reasonable care”. In essence,
therefore, the defence may not be raised at all against a crime that involved any
element of violence or assault, irrespective of the degree of intoxication.11

In comparison to the Canadian law, the shortcoming of section 1 of the Act 1 of 1988
is that it is overly broad in scope and makes provision for a complete acquittal on a
charge of assault in a scenario where the accused was accountable, but too
intoxicated to form intent.

6.4.4 PROVOCATION, EMOTIONAL STRESS AND OTHER NON-

PATHOLOGICAL UNACCOUNTABILITY

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:139-149; 204-208
OR
Snyman 2014:230-235

Court cases:
S v Campher 1987 (1) SA 940 A
S v Wiid 1990 (1) SACR 561 A
S v Moses 1996(1) SACR 701 C
S v Eadie 2002(1) SACR 663 SCA

Section 78(2) of the Criminal Procedure Act 51 of 1977 provides not only for mental
illness or mental defect, but also for any other reason not to be criminally responsible
(accountable).

Section 78(2) reads as follow:

If it is alleged at criminal proceedings that the accused is by reason of mental
illness or mental defect or for any other reason not criminally responsible
for the offence charged, or if it appears to the court at criminal proceedings that
the accused might for such a reason not to be so responsible, the court shall in

11Botha, R. and Van Rooyen, M. 2016. Dronkenskap as verweer in die Suid-Afrikaanse strafreg: ’n
Sober benadering? LitNet Akademies 13(2):556-593.

146
 the case of an allegation or appearance of mental illness or mental defect and
may, in any other case, direct that the matter be enquired into and be reported
on in accordance with the provisions of section 79, ….

PROVOCATION

Various approaches

There are three approaches that a country may follow regarding provocation, namely:
o Not to recognise provocation as defence, but to allow provocation to serve as
a ground for mitigation of punishment;
o To recognise provocation as a complete defence that can lead to an acquittal;
o The middle course approach – where provocation can serve as a partial
defence and the provoked person is (because of the provocation) convicted of
a less serious offence.

South Africa originally followed the middle course approach in the nineteenth century.
One of the main reasons for following this approach was that the death penalty was
still mandatory for a murder conviction and the courts felt that a provoked killing could
not be treated the same as an unprovoked killing. During this period, provocation could
thus serve as a partial defence and a provoked killing result in a conviction of culpable
homicide instead of murder.

There is evidence that for a short period of time, between 1987-2002, South African
courts recognised provocation as a complete defence (better known as non-
pathological criminal incapacity). S v Widd 1990(1) SACR 561 A is one of a few
examples where the defence of provocation/emotional stress was successfully raised
and led to a complete acquittal on a charge of murder.

Since 2002, after the decision of S v Eadie 2002(1) SA 663 (SCA), it seems as if South
African courts are reluctant to accept provocation as a complete defence. At present,
provocation mostly serve as a ground for mitigation of punishment.

NB: Read and study the following court case

S v Campher 1987(1)SA 940 A

S v Campher 1987(1)SA 940 A

Facts of the case

Legal question for the court to answer

147
Decision of the court

NB: Read and study the following court case

S v Wiid 1990(1) SACR 561 A

S v Wiid 1990(1) SACR 561 A

Facts of the case

Legal question for the court to answer

Decision of the court

NB: Read and study the following court case

S v Moses 1996(1) SACR 701 (K)

S v Moses 1996(1) SACR 701 (K)

Facts of the case

The accused was a 24 year old man who killed his lover by striking the deceased with an
ornament of a black cat and slashing his throught and wrists. The accused testified that after
having anal intercourse with the deceased he informed the accused that he had HIV. The
accused testified that his actions was outside of his controll because of his anger.

148
Furthermore, it was testified by the accuseds mother that he was sexually abused by his father and the
accused testified that he was homeless and angry at period of time he commited the murder.
Legal question for the court to answer
*Did the accused have criminal capacity @ time of offence?
*Was the accused extremely provoked to raise the provocation and
*non-pathological criminal incapacity as a defence?
Decision of the court
*Yes and the accused was aquitted.
** The state could not prove beyond a reasonable doubt that the accused had the necessary
criminal capacity to commit the crime of murder.

NB: Read and study the following court case

S v Eadie 2002(1)SACR 663 SCA

S v Eadie 2002(1)SACR 663 SCA

Facts of the case

Legal question for the court to answer

Decision of the court

COMPARISON OF THE SOUTH AFRICAN LAW ON PROVOCATION AS DEFENCE

EXCLUDING CRIMINAL CAPACITY WITH THE LEGAL POSITION IN CANADA

A person being seriously provoked by another person sometimes kills the provoker
and may then face a murder charge. Such an accused usually raises either self-
defence, as was discussed in the previous unit, or non-pathological criminal

149
incapacity. An accused, who raises non-pathological criminal incapacity as defence in
these circumstances, encounters several legal obstacles in their search for justice.

The defence of non-pathological criminal incapacity is raised where non-biological

factors, such as emotional stress or fury, temporarily deprive persons of the ability to
appreciate the wrongfulness of their actions and to behave in accordance with that
appreciation. A subjective test is applied to determine the success of this defence in
South Africa. The defence was successfully raised in a few cases before 2002.
However, in S v Eadie 2002 1 SACR 663 (SCA) the court found that there was no
distinction between non-pathological criminal incapacity due to emotional stress or
provocation on the one hand and the defence of automatism (involuntary action) on
the other. In general, the courts seldom accept automatism as defence on conduct.
Eadie’s judgment thus brought about legal uncertainty on whether the defence of non-
pathological criminal incapacity is still a defence or whether it has been abolished.
Currently, according to South African case law, even severe provocation and
emotional stress will only serve as mitigation of punishment at most.

In contrast to the uncertain legal position in South Africa, the Canadian legal system
fully recognises the defence of non-pathological criminal incapacity. Two consecutive
tests are applied to determine the success of the defence. Firstly, the Canadian penal
code stipulates that an objective test of the reasonable person should be applied. The
first question to be answered is whether the conduct (provocation) of the deceased
would cause the reasonable person to lose his or her self-control - in other words, to
lack criminal capacity.

Secondly, the Canadian case law confirms that such an objective test should be
followed by a subjective test in order to establish whether the accused indeed lacked
criminal capacity. In other words, was the accused in an excusable state of
provocation at the time of the killing? Thus a twofold test containing objective and
subjective elements is applied to ascertain whether the defence is successful. 12

The South African uncertain position on the defence of non-pathological criminal

incapacity based on provocation or emotional stress needs to be addressed. Adopting
a similar approach to that of the Canadians may be considered in this regard.

12
Botha, R. 2014. Strafregtelike struikelblokke in die mishandelde persoon se stryd om geregtigheid. LitNet
Akademies 11(3):190-192; 209-212.

150
 LEARNING OUTCOMES: UNIT 6

On completion of this Unit, the student will be able to:

1. Distinguish between involuntary conduct and lack of criminal capacity.

2. Discuss the effect of both criminal incapacity and diminished accountability on
criminal liability.
3. Explain the test applied to determine criminal capacity.
4. Map out the various defences that can be raised against the element of criminal
capacity.
5. Critically discuss the legal position regarding intoxication as a defence in criminal
proceedings.
6. Critically discuss the future existence of provocation as defence excluding criminal
capacity.
7. Compare the South African rules and legislation regulating intoxication with the legal
position in Canada.
8. Compare the South African law on provocation as defence excluding criminal
capacity with the legal position in Canada.
9. Apply his/her knowledge about the element of criminal capacity and relevant case
law towards solving practical problems that require an analysis and evaluation of
criminal liability.

*Examples of assessment questions that will be discussed during

tutorial sessions:

o Discuss the development of the South African law on provocation as defence

in criminal proceedings and briefly compare to the legal position in Canada.

o On 1 January 2020 Jack Daniels attends a party and voluntarily consumes

alcohol. On his way home he causes an accident as a result of which 1 person
dies and 1 is seriously injured. Discuss Jack’s criminal liability in the following
scenarios and briefly motivate your answer:
 Where the evidence reveals that Jack was drunk to the state (degree)
that he was unable to perform a voluntary act.
 Where the evidence reveals that Jack was drunk to the state (degree)
that he was only unable to form intention.

151
NOTES:

152
 LEARNING UNIT 7
FAULT

The last general element of a crime is discussed in Unit 7. The focus of the unit is on
fault in the form of both intention and negligence. The various forms of intention are
discussed as well as the objective test to determine negligence. Defences that can be
raised against the element of fault also enjoy attention.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 159-170; 170-172; 180-182; 175-180; 182-192; 208-212
OR
Snyman 2014:176-189; 193-197; 199-216; 236-241

Court cases:
Itention:
S v Hartman 1975 (3) SA 532 K
S v Makgatho 2013(2) SACR 13 (SCA)
Error of law:
S v De Blom 1977 (3) SA 513 A
Going astray of the blow/ Aberratio ictus:
S v Mkansi 2004(1) SACR 281
S v Raisa 1979 (4) SA 541 O
For negligence:
S v Bernardus 1965 (3) SA 287 A
S v Ngema 1992(2) SACR 615 D
S v Xaba and Others 2018(2) SACR 387 KZP
For strict liability:
Amalgamated Beverage Industries, Natal v City Council of Durban 1994
(3) SA 170 A

7.1 INTRODUCTION

From an early age we are faced with the term "fault". Something breaks in a room
where two children are playing. Mother investigates. The one child says: "It is his fault,
he did it on purpose". The other child defends himself and says: "But it was by

153
accident". The children referred to both forms of fault as encountered in criminal law,
namely intention and negligence.

FAULT

INTENTION NEGLIGENCE

Fault (culpa in the broad sense of the word) consists in the form of intention (dolus)
or negligence (culpa in the narrower sense). De Wet and Swanepoel describe fault as
a blameworthy or reprehensible state of mind.

The English textbooks on criminal law refer to the Latin "mens rea" or "fault" to
describe fault.

Van der Merwe and Olivier advocate a partly normative approach to fault and state
that fault "is a reproach which strikes the perpetrator by law". A more objective test is
carried out on the basis of specific norms as to whether the perpetrator must indeed
be blamed.

When we say that we make use of a subjective test, it means that we are looking for
evidence which can show what a person thought, perceived or felt at a specific time,
without taking into account existing factors at that time of which the person himself
was unaware.

When we say that we make use of an objective test, it means that from the evidence
we look at circumstances or factors which were visible from the outside without taking
into account the person's thoughts in the situation.

Imagine a situation where X holds Y at toy gunpoint in the hope that Y would be
frightened and thus surrender his money. Y is frightened and takes out a real revolver
and shoots X. If we test Y's behaviour subjectively, we can infer from the evidence that
he thought that X was pointing a real revolver at him and that his life was actually in
danger. He felt that it was justified under those circumstances to defend himself and
took out his own revolver and shot X in self-defence. If we test Y's behaviour
objectively, we note that he shot X with a real revolver when X pointed a mere toy gun
at him. From an objective point of view it seems like a gross excess of the limits of
self-defence. From a subjective point of view it seems like justified self-defence.

In terms of the strict application of the psychological guilt concept, a subjective

test ought to be applied for intention and negligence. With intention one asks whether
the perpetrator indeed and subjectively willed the unlawful act whilst he knew that it
was unlawful. If one wants to test negligence subjectively, one ought to ask whether
the perpetrator's state of mind was one of unnatural carelessness.

154
In terms of the strict application of the normative guilt concept, both intention and
negligence ought to be tested objectively against an external norm. For intention one
would look through the evidence for specific circumstances in order to determine
whether the perpetrator did deviate from the standard normal behaviour to such a
degree that it can be inferred that he willed the unlawful behaviour. With negligence
one ought to use the reasonable person test. Did the perpetrator deviate from the
conduct which a reasonable person would display under the same circumstances to
such a degree that it can be said that he was negligent?

In practice, fault is rarely dealt with as one term. Either intention or negligence is
described. Practice follows a subjective test for intent and a mainly objective test for
negligence.

Van der Merwe and Olivier's normative guilt concept is, therefore, not fully adhered to.
Neither is the guilt concept fully followed as a psychological notion.

The current position is that we follow a psychological approach with respect to

intention and a basically normative approach with respect to negligence. It was argued
in the Appeal Court that South African law must adopt the normative guilt concept, but
the court rejected this.

7.2 INTENTION

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:159-170; 170-172; 180-182; 175-180
OR
Snyman 2014:176-187; 196-197; 187-189; 199-204; 193-196

Court cases:
S v Hartman 1975 (3) SA 532 C
S v Makgatho 2013 (2) SACR 13 SCA

7.2.1 DEFINITION

In general, intention is the state of mind of an accountable perpetrator to want to

perform an unlawful act with the knowledge that it is unlawful.

There are two main components of intention. It must be tested subjectively whether
the perpetrator willed a crime, whilst he knew that it was a crime. Therefore
"maliciously" is sometimes used as a synonym for "intentionally" and the word
"willingly and knowingly" sometimes appears on charge sheets to indicate intention.

155
The term "knowledge of unlawfulness," indicates that the perpetrator knew that he
committed a crime. (He was aware of the unlawful nature of his act).

It can be said that intention consists of:

- the will (conative element) and
- the knowledge of unlawfulness (cognitive element).

Note that motive and intention are not synonymous. An evil motive can help to prove
intention whilst a good motive does not necessarily exclude intention.

NB: Read and study the following court case

S v Hartman 1975(3)SA 532 C

S v Hartman 1975(3) SA 532 C

Facts of the case

Legal question for the court to answer

Decision of the court

NB: Read and study the following court case

S v Makgatho 2013(2) SACR 13 (SCA)

S v Makgatho 2013(2) SACR 13 (SCA)

Facts of the case

Legal question for the court to answer

156
Decision of the court

7.2.2 FORMS OF INTENTION

The following forms of intention are encountered:

- dolus directus
- dolus indirectus
- dolus eventualis
- dolus indeterminatus or alternativus.

7.2.2.1 DOLUS DIRECTUS

Direct intention or actual intention.

Ben wants to kill Amy. He takes a gun and kills her. The intention to kill and the
objective to get rid of Amy, coincide.

7.2.2.2 DOLUS INDIRECTUS

Indirect intention or intention with the knowledge of certainty.

Where the accused foresaw the unlawful circumstance or consequence as certain or
substantial certainty to occur.
Example:
Alice wants to kill Billy. She takes a gun and knocks on Billy's door. When Alice
hears that Billy is there, she fires a few shots through the door and thus kills
Billy. Alice still has dolus directus with respect to the death of Billy. Alice has
dolus indirectus with respect to damage to the door (malicious injury to
property). Although her objective was to kill Billy and not to damage the door,
she was aware that she could not shoot Billy through a door without damaging
it. It can thus be said that, with respect to the malicious injury to property, Alice
had intention with knowledge of certainty.

7.2.2.3 DOLUS EVENTUALIS

157
Intention with knowledge of possibility.
Where the accused foresees the possibility that the prohibited consequence might
occur, in substantially the same manner in which it actually does occur, or the
prohibited circumstance might exist and he or she accepts this possibility into the
bargain.

Example:
Ntabiseng wants to kill Bongani. She takes a gun and knocks on Bongani's
door. Ntabiseng hears that another person, Unlucky, is also in the flat and talks
to Bongani. Ntabiseng foresees the possibility that she may possibly shoot
Unlucky if she fires shots at Bongani. However, reckless of this knowledge of
possibility, Ntabiseng fires a few shots through the door and kills both Bongani
and Unlucky. Ntabiseng had dolus directus with respect to the death of
Bongani. With respect to damage to the door there was dolus indirectus and
there was dolus eventualis with respect to the death of Unlucky. It was not
Ntabiseng's objective to kill Unlucky. Neither was she certain as to whether she
would hit Unlucky if she fires shots at Bongani through the door. However,
Ntabiseng foresaw the possibility that she could hit Unlucky and she recklessly
proceeded.

7.2.2.4 DOLUS INDETERMINATUS OR DOLUS ALTERNATIVUS

Unspecified or indifferent intention.

This type of intention occurs when Andrew does not have a specific victim in mind. For
instance, if Andrew derails a train for political motives, his objective is not to kill
passengers Xero, Yzo and Zana. (He does not even know them). Since he foresees
the possibility that passengers may die, and recklessly proceeds with the derailment
of the train, this type of intention is often considered as a subdivision of dolus
eventualis.

Dolus indeterminatus/alternativus can also be a subdivision of dolus directus.

Of all these types of intention, dolus eventualis provides the most problems in practice.
As mentioned above dolus eventualis occurs where the perpetrator foresees the
possibility that an unlawful consequence can arise from his action and nevertheless
recklessly proceeds with his action.

7.3 DEFENCES EXCLUDING FAULT

7.3.1 ERROR

INTRODUCTION

It has been pointed out that intention comprises the following:

- the will and

- the knowledge of unlawfulness.

158
A person often commits an unlawful act without being aware of the unlawful nature
thereof. He therefore commits a crime but defends himself by stating that he did not
realise that he was committing a crime. The courts classify the lack of knowledge of
unlawfulness into two types.

The perpetrator does not have knowledge of unlawfulness when he erred:

* with respect to the factual circumstances of the deed, or
* with respect to the legal aspects concerning the deed.

We thus distinguish between an error of fact and an error of law. This distinction is
not absolute. The law with respect to a specific situation is also a fact - it can thus be
said that every error of law is also an error of fact.

7.3.2 ERROR OF FACT

When a perpetrator makes a substantial error of fact, this excludes knowledge of

unlawfulness and intention - and he cannot be found guilty of an intentional crime.

An error is substantial when it pertains to an element of the crime concerned. If we

take murder as an example it can be defined and illustrated as follows:

“Murder is the unlawful, intentional, killing of another person”.

One of the elements of murder is that "another person" must be killed.

When Katlego shoots a tree trunk which crashes down, and it transpires that the tree
trunk was Neo on her way to a masked ball, then this is a substantial error of fact.
Katlego thought he was firing at a tree trunk, not a person.

However, when Katlego shoots his neighbour Clive whom he hates and upon close
investigation it appears to be his neighbour Sam, whom he likes, there is no substantial
error of fact, because Katlego was still aware of the fact (he had knowledge of
unlawfulness) that he was committing an unlawful intentional killing of another person.

Besides the condition that the error must be substantial in order to exclude intention,
the courts in general also set the condition that the error of fact must be bona fide.
This only means that the perpetrator did not foresee the possibility that he may be
wrong, and yet recklessly proceeded with his action. The perpetrator would then
indeed have intention in the form of dolus eventualis.

Another condition has also been set for the defence of error of fact in intentional
crimes, namely that the substantial, bona fide error must also be reasonable in order
to exclude intention. Intention is then tested objectively and this is not generally
accepted. It is suggested that the condition of reasonableness must refer to the
credibility of the alleged error and it must not be an essential characteristic.

7.3.3 ERROR OF LAW

159
Contrary to error of fact, error of law was not accepted in the past as a valid defence.
The well-known maxim ignorantia iuris neminem excusat (ignorance of the law
excuses no-one) was strictly upheld. The reason was that, should ignorance of the law
be accepted as an excuse, everybody would raise it as a defence.

This situation changed in l977 when the Appellate Division of the Supreme Court (now
the Supreme Court of Appeal) decided that ignorance of the law can indeed be an
excuse provided it is bona fide and reasonable.

NB: Read and study the following court case

S v de Blom 1977(3)SA 513 A

S v de Blom 1977(3)SA 513 A

Facts of the case

Legal question for the court to answer

Decision of the court

7.3.4 ABBERRATIO ICTUS

Aberratio ictus or the going astray of a blow is where the object aimed at is missed
and someone else is hit and injured in the process.

Aberratio ictus must be distinguished from error of fact.

If Tebogo aims at Kelly with a gun and shoots and hit Kelly, but upon closer
examination it is found that it was not Kelly but Clive who was aimed at and hit, this
cannot be an instance of the going astray of the blow. The shot hit the object aimed
at. The perpetrator only erred with respect to the identity of the object (error in objecto).

Study the following two cases regarding aberratio ictus:

160
S v Mkansi 2004(1) SASV 281
S v Raisa l979(4) SA 541 O.

NB: Read and study the following court case

S v Mkansi 2004(1) SACR 281

S v Mkansi 2004(1) SACR 281

Facts of the case

Legal question for the court to answer

Decision of the court

NB: Read and study the following court case

S v Raisa 1979(4)SA 541 O

S v Raisa 1979(4)SA 541 O

Facts of the case

Legal question for the court to answer

Decision of the court

161
Versari in re illicta – doctrine
Many of our court decisions on aberratio ictus are indeed influenced by the doctrine of
versari in re illicita. According to this doctrine, the perpetrator who commits an unlawful
act is held liable for all the unlawful consequences arising therefrom, irrespective of
whether he foresaw them or not and irrespective of whether the reasonable person
would have foreseen them or not.

However, this doctrine was rejected in the decisions of S v Van der Mescht l962(1) SA
521 A and S v Bernardus 1965(3) SA 287 A.

This doctrine will again be referred to under negligence below.

7.4 NEGLIGENCE

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:182-192
OR
Snyman 2014:204-216

Court Cases:
S v Ngema 1992(2) SACR 615 D
S v Bernardus 1965 (3) SA 287 A
S v Xaba and Others 2018(2) SACR 387 KZP

7.4.1 INTRODUCTION

Fault (culpa in the wide sense of the word) comprises intention (dolus) and negligence
(culpa in the narrow sense of the word).

TEST TO DETERMINE NEGLIGENCE

A person’s conduct is negligent if:

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

162
ii. the reasonable person would have taken steps to guard against such a
possibility; and
iii. the conduct of the person whose negligence has to be determined differed from
the conduct expected of the reasonable person.

With consequence crimes the test is whether the reasonable person would have
foreseen the possibility of the unlawful consequences and would have
prevented these consequences in circumstances in which the accused found
himself.

In non-consequence crimes the test is whether the reasonable person would

have abstained from the action in circumstances in which the accused found
himself.

Burchell and Hunt are of the opinion that negligence is not actually a "state of mind"
and that it does not resort under mens rea. However, because it is a kind of "fault", it
is usually classified under mens rea.

De Wet and Swanepoel are of the opinion that a person's state of mind is not only
blameworthy if he deliberately (and thus intentionally) ignores the provisions of law,
but also when he is careless about the wrongfulness of his commission or omission.
With intention a person is blamed because he wills an unlawful commission or
omission, but with negligence he is blamed because he does not exert his mental
powers to avoid unlawful behaviour.

Negligence can thus be described as a blameworthy careless state of mind.

In practice, the courts follow an objective “reasonable person test” to determine

negligence (explained above).

"Reasonable person" is described as follows by Nicholas AJA in S v Bochris

Investments (Pty) Ltd and Another l988(1) PH H33 A:
"The reasonable man is the diligens paterfamilias of Roman Law, the average
prudent person, 'that notional epitome of reasonable prudence', in the words of
Holmes JA in Peri-Urban Areas Health Board v Munarin l965(3) SA 367(A)
at 373F. The reasonable man is the embodiment of the social judgments of the
Court, which applies 'common morality and common sense to the activities of
the common man'. (Per Diplock LJ in Doughty v Turner Manufacturing
Co.Ltd. (l964) 1 QB 518 (CA) at 531). The criterion of liability for culpa in both
civil and criminal cases is reasonable foreseeability.

It is said that the juridical test for negligence is the same in criminal and private law. In
R v Meiring l927 AD 41 at 46 Innes CJ decides the following:
"In civil actions we have adopted as the simple test that standard of care which
would be observed by the reasonable man. And it seems right as well as
convenient to apply the same test in criminal trials...".

The reasonable person test is primarily an objective test. In the heterogeneous

population of South Africa, problems can be caused by adhering too strictly to this test.

163
It has been decided that race, personal traits, superstition or the intelligence level of a
person is irrelevant when determining his negligence in given circumstances.

However, in S v Ngema 1992 (2) SACR 651 D on 657F it was decided to test
negligence by the yardstick of the reasonable person of the same background and
educational level, culture, sex and race of the accused.

NB: Read and study the following court case

S v Ngema 1992(2) SACR 615 (D)

S v Ngema 1992(2) SACR 615 (D)

Facts of the case

Legal question for the court to answer

Decision of the court

NB: A degree of subjectivity is also obtained by:

- Cognisance of the specific circumstances in which the accused found himself.

- Cognisance of specific expertise of the accused.

- Cognisance of the youth of the accused.

In S v Southern 1965(1) SA 860 N at 861 the following was decided in a case where
the accused was the driver of a bus of which the brakes failed.
"In judging the appellant's conduct by that of a reasonable man, we must judge
it against that of a reasonable man driving a fully loaded passenger bus in the
particular circumstances which existed on the day of the accident."

164
In the case S v Mahlalela l966(1) SA 266 A, it was decided that when determining a
witchdoctor's negligence, his specific knowledge of poisonous leaves, etc. ought to be
taken into account.

DOCTRINE OF VERSARI IN RE ILLICTA

According to this doctrine – versari in re illicta -, the perpetrator who commits an

unlawful act is held liable for all the unlawful consequences arising from his action,
irrespective of whether he foresaw this or not and irrespective of whether the
reasonable person would have foreseen it or not.

This doctrine was, however, rejected in the cases of S v Van der Mescht l962 (1) SA
521 A and S v Bernardus l965 (3) SA 287 A.

The result of the rejection of the versari doctrine is that the State, at present, has to
prove intention in order to secure a conviction of a crime that requires fault in the form
of intention (for example murder) and negligence in order to secure a conviction of a
crime that requires fault in the form of negligence (for example culpable homicide).

NB: Read and study the following court case

S v Bernardus 1965(3)SA 287 A

S v Bernardus 1965(3)SA 287 A

Facts of the case

Legal question for the court to answer

Decision of the court

Doctrine of sudden emergency.

165
In some cases of alleged negligence, the so-called doctrine of sudden emergency is
raised. According to this doctrine, an accused is not found to be negligent if he finds
himself in a sudden dangerous situation which he himself did not create and which
then caused an accident. We do not really deal here with a doctrine, but recognition is
simply given to the fact that the reasonable person would also act strangely or
irrationally in a sudden dangerous situation. In such circumstances the accused
person's behaviour (not complying with the norm of the reasonable person) will not be
regarded as negligent. Examples of sudden emergency situations are found in the
cases of S v Naik l969(2) SA 231 N and S v Crockart l971(2) SA 496 RAD.

In S v Ngubane l985(3) SA 677 A it was decided that intention does not necessarily
include negligence although it is difficult to imagine an accused killing another person
intentionally without not also being negligent with respect to this death. The tests for
negligence and intent are, however, different and therefore the one does not
necessarily include the other.

What about a belief in witchcraft?

Belief in witchcraft does not exclude negligence, but may be a mitigating circumstance
which influence sentencing.

The following cases support the above contention:

S v Mathoka and Others l992(2) SACR 443 NC
S v Lukhwa en ‘n Ander 1994(1) SACR 53 A

WHAT ROLE DOES A BELIEF IN WITCHCRAFT PLAY ON CRIMINAL LIABILITY?

Beliefs and practices associated with magic and the supernatural have existed in
European, American and African societies for generations. In African societies, the
term “witchcraft” probably only became used as a result of colonial influence. 13
Cultural beliefs in witchcraft was an integral part of daily life even before colonial rule
in Africa, and are still a reality in contemporary South Africa. It is believed that persons
who use witchcraft powers can perform supernatural acts, for example, diagnose and
cure illnesses, but also cause diseases, sudden death and other misfortune to
others.14 Accordingly, when any misfortune occurs, these cultural beliefs may cause
people to suspect others of engaging in witchcraft, which often result in violent attacks
on persons suspected of witchcraft.15

13 SALRC (South African Law Reform Commission). 2016. Discussion paper 139. The review of the
Witchcraft Suppression Act 3 of 1957. Project 135: 28.
14Singh, A and Msuya, MH. 2019. Witchcraft accusation and the challenges related thereto: can
South Africa provide a response to this phenomenon experienced in Tanzania? Obiter: 106-116:
106.
15 Singh and Msuya 2019:106.

166
Criminal law play a crucial role to restore justice when offences are committed in
witchcraft-related crimes. Accused persons who kill or harm others as a result of a
belief in witchcraft, may raise the defence of criminal incapacity or putative self-
defence (error of fact), or may present such a belief as mitigating factor in sentencing
proceedings.

With regard to the defence of criminal incapacity, it seems that the courts do not
equate superstition, or belief in witchcraft, to mental illness. However, there is merit in
Burchell’s proposal that the subjective factors to be considered as part of the test for
criminal capacity should include belief in witchcraft or superstition. Without necessarily
equating belief in witchcraft to mental illness, it could affect one’s notion of the
unlawfulness of your actions and your ability to act in accordance with such notion.
Still, case law has not yet clearly and unanimously ruled that a sincere belief in
witchcraft is a defence that eliminates criminal capacity.

Another defence, namely putative self-defence (error of fact), may be raised as a

justification for criminal actions that stemmed from a genuine belief in witchcraft.
Persons whose defensive violent behaviour were instigated by a deep fear of occult
powers may comply with the following requirements of the defence of putative self-
defence:
(i) Such defenders with a genuine belief in witchcraft and occult violence may sincerely
believe that they are protecting themselves or others against an unlawful attack.
(ii) A threat of occult violence may be deemed an immediate danger by such
defenders. Since occult violence is profoundly mysterious and unpredictable, those
with a deep-seated belief in witchcraft live in constant fear of supernatural forces
striking at any given moment.
(iii) Defenders’ actions against the witch are intentional attempts to protect a statutorily
entrenched interest of either own bodily integrity or others’ safety.
(iv) Finally, in terms of the necessity of defensive actions, it is noted that obtaining
alternative protection from occult violence is rare. The Witchcraft Suppression Act 3 of
1957 renders it an offence to identify someone as a witch or sorcerer, and mere
reporting to the police may therefore constitute a crime. Therefore a person with this
belief can easily form the perception that his/her conduct is indeed necessary. Putative
self-defence may thus be a possible good fit for these cases involving belief in
witchcraft.16

Although the courts were hesitant to acknowledge a belief in withcraft as a defence,

they often considered it as a mitigating or extenuating factor in determining an
appropriate sentence. However, it has been pointed out that too much leniency in
sentencing may hamper the prevention of witchery-related crime. The courts have
therefore established concrete guidelines in terms of which belief in witchery could be
considered as extenuating circumstances:
(i) Where belief in witchery culminates in the homicide of the witch or sorcerer, and
this is accompanied by unnecessary cruelty, belief in witchcraft should not serve as
extenuation.

16 Botha, R. 2018.Geloof in heksery – ’n grondige verweer in die strafhof, of ’n gegoël met die reg?
LitNet Akademies 15(1):456-503.

167
(ii) Where it is believed that the witch or sorcerer caused the death of a close family
member, and the subsequent actions are aimed at that particular witch or sorcerer,
this should be considered as extenuating circumstances.
(iii) Where a witchdoctor was consulted, the belief in witchcraft should be deemed
more credible, and it would more readily be considered as an extenuating factor.17

However, recently heavy sentences were imposed despite the belief in witchcraft. This
tendency seems to indicate that the courts attach limited significance to such a belief,
in deciding on an appropriate sentence. Furthermore, section 51 of the Criminal Law
Amendment Act 105 of 1997, extended the list of offences punishable by compulsory
life imprisonment to include cases where “the death of the victim resulted from, or is
directly related to, any offence contemplated in section 1(a) to (e) of the Witchcraft
Suppression Act 3 of 1957”. If belief in witchcraft loses its extenuating effect, it would
imply that the criminal justice system does not accommodate such a belief, which is
worrying within the South African context.

NB: Read and study the following court case

S v Xaba and Others 2018(2) SACR 387 KZP

S v Xaba and Others 2018(2) SACR 387 KZP

Facts of the case

Legal question for the court to answer

Decision of the court

17 Botha, R. 2018.Geloof in heksery – ’n grondige verweer in die strafhof, of ’n gegoël met die reg?
LitNet Akademies 15(1):456-503.

168
7.5 ABSOLUTE / STRICT LIABILITY

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:208-212
OR
Snyman 2014:236-241.

Court cases:
Amalgamated Beverage Industries, Natal v City Council of Durban 1994 (3) SA
170 A

In the past our courts convicted persons of statutory crimes, although the state did not
prove fault (intent or negligence) on the part of the accused. In such cases the accused
were thus held absolutely liable for contravening a statutory provision.

This absolute liability is in conflict with the maxim pertaining to common law nulla
poena sine culpa (no punishment without fault) and actus non facit reum nisi mens sit
rea (the act does not render the perpetrator culpable unless he was conscious of its
wrongfulness).

There is no common law crime for which fault is not a prerequisite. In order to find a
person guilty of any common law crime, the State must prove beyond reasonable
doubt that the accused was at fault.

However, in statutory crimes, the legislator often does not mention whether fault is a
prerequisite for conviction of such crimes. In the past, such provisions were interpreted
in such a way that fault was not a prerequisite for conviction.

Since the fifties, however, our courts steered away from absolute liability. Botha
decided as follows in S v Arenstein l964(1) SA 361 A at 365C:

"The general rule is that actus non facit reum nisi mens sit rea and that in
construing statutory prohibitions or injunctions, the legislature is presumed, in
the absence of clear and convincing indication to the contrary, not to have
intended innocent violations thereof to be punishable."

There is now authority in S v De Blom (supra) that in the interpretation of a statutory

crime it is presumed, until the State proves the contrary, that the legislator did not
intend to make an unlawful but faultless act punishable.

In S v Ndlovu l986(1) SA 510 N, the court moved even further away from absolute
liability. It was held that in the case of unlawful possession of a prohibited publication,
where the legislator did not specify the required form of fault (if any), negligence is not

169
sufficient as form of mens rea. The State must prove intention before the accused can
be found guilty. This decision was confirmed on appeal in Attorney-General, Natal v
Ndlovu l988(1) SA 905 A.

In Attorney General Cape v Bestall l988(2) PH H60 A the following guidelines were
laid down to ascertain which form of fault the legislator intended, namely intention,
negligence or no fault:
i. The language and context of the prohibition.
ii. The ease with which the provision can be evaded when intention is the
one and only required form of fault.
iii. The reasonableness or not thereof if negligence is regarded as sufficient
form of fault.
iv. The degree of caution required by law. Relevant to this guideline are
(a) the purpose and scope of the statute, and
(b) the nature of the punishment which may be imposed.

NB: Read and study the following court case

Amalgamated Beverage Industries Natal (Pty) Ltd v The City Council of the City
of Durban 1992(2) PH H 34 N

Amalgamated Beverage Industries Natal (Pty) Ltd v The City Council of the City
of Durban 1992(2) PH H 34 N
Facts of the case

Legal question for the court to answer

Decision of the court

170
 LEARNING OUTCOMES: UNIT 7

On completion of this Unit, the student will be able to:

1. Define intention as well as the test to determine negligence.

2. Compare the various forms of intention and provide an example of each.
3. Distinguish between negligence and dolus eventualis.
4. Explain the defences that can be raised against the element of fault as well as the
requirements in order to succeed with these defences.
5. Distinguish between error of fact and aberratio ictus.
6. Critically discuss the effect of the belief in witchcraft on criminal liability.
7. Explain the meaning and purpose of strict liability offences.
8. Apply his/her knowledge about the element of fault and relevant case law towards
solving practical problems that require an analysis and evaluation of criminal
liability.

*Examples of assessment questions that will be discussed during

tutorial sessions:

o Distinguish between the following:

 error of fact and aberratio ictus;
 negligence and dolus eventualis.

o Discuss the effect of the belief in witchcraft on criminal liability.

o David wants to kill Tau. He knows Tau takes Bonolo, his son, to school every
morning. David parks near the school and waits for Tau. David notices Tau
driving in his car towards him and sees Bonolo is sitting behind him on the back
seat. David knows that he is not an accurate shooter, but still shoots at Tau
through the windscreen of his car. He misses Tau, but kills Bonolo on the back
seat.

Discuss the criminal liability of David.

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 LEARNING UNIT 8
PARTICIPATION IN CRIME

Unit 8 deals with the various role-players in crime and their criminal liability. Before
discussing the specific crimes that can be committed against the person, state,
community and property (Units 10-14), it is important to know that various role-players
can be involved in each one of these crimes.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:219-240
OR
Snyman 2014: 249-274.

Court Cases:
S v Thebus 2003 (6) SA 505 (CC); 2003 (2) SACR 319 (CC)
S v Molimi 2006 (2) SACR 8 (SCA)
S v Tsotetsi 2019 (2) SACR594 (WCC)
S v Terblanche 2011 (1) SACR 77 (ECG)

8.1 INTRODUCTION
Those who participate in a crime can be divided into three groups, namely:
 Perpetrators;
 Accomplices; and
 Accessories after the fact.

These groups/participants are discussed below.

173
8.2 PARTICIPATION
8.2.1 Perpetrators

Reference: See Snyman: 2020:222-225 OR Snyman 2014 (252-255).

Definition:
A perpetrator complies with all the elements of a crime and perpetration consists of
the following:
i. Self-perpetration (direct): Where the perpetrator single-handedly commits a
crime.
ii. Vicarious perpetration (indirect): Where the perpetrator commits a crime by
means of someone else, such as in a successful incitement.
iii. Co-perpetration: Where the perpetrator co-operates with others in the
commission of a crime. This usually involves the doctrine of common purpose.

8.2.2 Accomplices

Reference: See Snyman 2020:233-237 OR Snyman 2014:265-270.

Definition:
A person is guilty of a crime as an accomplice if:
Although he does not satisfy all the requirements for liability contained in the
definition of the crime and although the conduct required for a conviction is not
imputed to him by virtue of the principles relating to common purpose, he
unlawfully and intentionally engages in conduct whereby he furthers the
commission of a crime by somebody else.

The following are the requirements for criminal liability of an accomplice:

 He/she had to further the commission of the crime (by giving assistance, advice,
encouragement or orders). There must however be a visible act.
 The commission of the crime must have been furthered intentionally. (The
unintentional "forgetting" to close a safe is not similar to complicity in the
subsequent theft.)

174
  He/she must further the commission of the crime via someone else (if not,
he/she is a perpetrator.)
 He/she must not himself/herself comply with the elements of the crime.

An accomplice can participate actively or passively in the commission of an offence.

To establish liability there must be a causal connection between the assistance and
the commission of the offence.

8.2.3 The doctrine of common purpose

Reference: See Snyman 2020:225-232 OR Snyman 2014: 255-264.

Definition of common purpose

If two or more people have a common purpose to commit a crime and in the execution
of this purpose, act together, the act of each of them in the execution of this purpose
is imputed to the others.

However, it is only the act (and causation) that is imputed to the others, and not
culpability (fault).

Example:
If a group of 100 people stoned X to death, it will often be difficult for the State
to prove whose ‘stone’ caused the death. It will be unfair to let all members who
participated in this criminal conduct off the hook simply because the state
cannot prove whose conduct caused the death of X. Here the doctrine of
common purpose is then applied and the conduct (and causation) of each
member in the group is imputed to the others.

Common purpose can be based on prior agreement or active association

The finding that a person acted together with other persons in a common purpose to
commit a crime is usually based on a prior agreement (conspiracy) amongst the
members of the group. However, without a prior agreement, the common purpose may
also be based on active association in the execution of such a common purpose. In
S v Mgedezi and Others 1989 (1) SA 687 (A), the following requirements for such

175
active association are set in cases where there was no previous agreement to commit
the crime:
o The person (X) must be present at the scene of the crime where one or
more persons assault Y.
o X must be aware that Y is assaulted by somebody else .
o X must intend to have a common purpose with the attacker(s).
o X must show that he shared a common purpose by himself performing an
act of association with the conduct of the attacker(s).
o X must intend to kill Y (meet the requirements of the fault element of the
crime).

Doctrine not applicable to autographic crimes

The doctrine of common purpose cannot be applied to autographic crimes, because
such crimes can only be committed by a person’s own body e.g. bigamy, perjury and
driving under the influence of liquor.

Applying the doctrine in charges of culpable homicide

According to the doctrine of common purpose, the act of causing the victim’s death is
attributed to all perpetrators that share the common purpose to assault Y. However,
one perpetrator’s culpability (intent/negligence) cannot be attributed to another. For a
conviction of culpable homicide, the state must still prove that each perpetrator
negligently caused the death of Y. In other words, according to the reasonable person-
test, each participant must have been negligent in killing Y.

Common purpose doctrine is constitutional

The Constitutional Court in S v Thebus 2003 2 SACR 319 CC held that the doctrine is
compatible with the Constitution, because it serves the lawful aim of combating crime
perpetrated by a number of people acting together.

NB: Read and study the following court case

S v Thebus 2003 (6) SA 505 (CC); 2003 (2) SACR 319 (CC)

S v Thebus 2003 (6) SA 505 (CC); 2003 (2) SACR 319 (CC)

176
Facts of the case

Legal question for the court to answer See

Slides

*
Decision of the court

Read and study the following court case

S v Molimi 2006 (2) SACR 8 (SCA)

S v Molimi 2006 (2) SACR 8 (SCA)

Facts of the case

Legal question for the court to answer

Decision of the court

8.2.4 The latecomer (joiner-in)

Reference: See Snyman 2020:232-233 OR Snyman 2014:264-265.

177
Z is a late-comer or joiner-in when:
o he joins the attack on Y only after X has already inflicted a fatal wound on Y.
o Z then also inflicts an injury on Y -
o while Y is still alive, but that injury does not hasten Y’s death.
o Z did not act with a common purpose based on prior agreement..

In such cases the “late-comer”-accused is at most found guilty of attempted murder.

In S v Motaung 1990(4) SA 485 A, it was decided that the doctrine of common

purpose does not apply to the “late-comer”.

Read and study the following court case

S v S v Tsotetsi 2019 (2) SACR594 (WCC)

S v Tsotetsi 2019 (2) SACR594 (WCC)

Facts of the case

Legal question for the court to answer

Decision of the court

8.3 Accessory after the fact

Reference: See Snyman 2020:237-240 OR Snyman 2014:271-274.

Definition:
An accessory after the fact is someone who, after the completion of the crime,
unlawfully and intentionally engages in conduct intended to enable the perpetrator or
the accomplice to evade liability for his/her unlawful act.

178
Example:
An accessory is a person who, for instance, helps to hide the body of the
deceased or who intentionally tries to lead the police astray from the accused.

Two approaches to accessories after the fact may be followed, namely, a wide or a
narrow approach.

The narrow approach limits accessories to those persons who assist the
perpetrator/accomplice to prevent the discovery of the crime. He protects the
perpetrator against the law by e.g. hiding the accused or the profits of a crime from the
police, or by wiping out any trace of the crime, or by assisting the perpetrator to
escape.

The wide approach merely requires that the accessory should have associated
himself in a broad sense with the offence committed.

In S v Morgan and Others 1993 (2) SACR 134 (A) the Appellate Division has
unambiguously decided in favour of the narrow approach. In the court a quo the wide
association approach was still followed: The third appellant was not present when the
complainants and the deceased were assaulted at her house. She only learnt of this
later at her arrival and she must have noted the swollen eye of one of the victims.
Nevertheless, she allowed the continued detention of the complainants and the
deceased at her house. According to the trial court, this behaviour proved her
association with the crime and she was found guilty as an accessory to assault and
sentenced to one-year imprisonment. On appeal Chief Justice Corbett decided as
follows:

“... the case law would seem to indicate two different approaches to the
definition of an accessory after the fact: a wide approach, which merely requires
that the accessory should have associated himself in a broad sense with the
offence committed; and a narrow approach, which requires that the association
takes the form of helping the perpetrator to evade justice. Insofar as it may be

179
 necessary in this case to do so I would express a preference for the so-called
narrower approach...".

By reason hereof it was found that the third appellant's conduct did not comply with
the requirements of an accessory after the fact, and the conviction and sentence were
set aside.

Snyman raises the question whether the crime of being an accessory after the fact is
necessary as part of our law, since it overlaps with the crime of defeating or obstructing
the course of justice.

Read and study the following court case

S v Terblanche 2011 (1) SACR 77 (ECG)

S v Terblanche 2011 (1) SACR 77 (ECG)

Facts of the case

Legal question for the court to answer

Decision of the court

180
 LEARNING OUTCOMES: UNIT 8

On completion of this Unit, the student will be able to:

1. Identify the different role-players/participants in a crime in a given set of facts.

2. Explain the rules regarding the doctrine of common purpose and apply it to a given
set of facts.
3. Discuss the criminal liability of the late-comer/“joiner-in”.

*Example of assessment questions that will be discussed during

tutorial sessions:

o Dolla, Daisy and Daffney plan a robbery at a chocolate factory. The morning of
the planned robbery, they arm themselves with pistols and depart to the
factory. On arrival, Daffney is instructed to wait in the car and guard the factory.
Dolla and Daisy storm inside the factory and instruct the owner, Mr. Cadbury,
to hand all the money in the factory to them. When he refuses, Dolla shoots
him dead. His shocked wife, Candy, immediately puts all the money into a bag
and hands it to Dolla. Meanwhile, Daisy helps herself to some chocolates and
collects a few boxes with the purpose of removing them from the factory.

Dolla, Daisy and Daffney are only arrested the next morning. It seems as if
Dolla’s neighbour, Sarie Soettand, assisted them in hiding the chocolates.

Having read the above, answer the following questions:

2. May Daffney be held criminally liable for the murder of Mr. Cadbury?
Motivate your answer without reference to case law.

2. State and explain the approach that is currently followed in South Africa with

regards to roleplayers like Sarie Soettand.

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 LEARNING UNIT 9
INCOMPLETE CRIMES

This Unit deals with the incomplete crimes of attempt, conspiracy and incitement.
Before discussing the specific crimes that can be committed against the person, state,
community and property (Units 10-14), it is important to gain knowledge about what
the state must prove to ensure a conviction of attempt to commit these crimes.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:241-263
OR
Snyman 2014: 275-296.

Court Cases:
S v Phiri 2014 (1) SACR (GNP)
R v Schoombie 1945 AD 545
R v Davies 1956 (3) SA 52 (A)
S v Sibuyi 1993 (1) SACR 235 (A)
R v Dick 1969 (3) SA 267 (R)

9.1 INTRODUCTION
Mere thoughts to commit a crime is not punishable. However, perpetrators may be
convicted of a crime even though the crime that they wanted to commit was never
completed. Attempt, conspiracy and incitement are referred to as inchoate or
incomplete crimes, but they are, in fact, substantial crimes. A culpable attempt is a
statutory crime in terms of section 18(1) of the Riotous Assemblies Act. The act
provides that the same punishment can be imposed for an attempt to commit a crime
as for a conviction of actually committing that crime. In practice, lighter sentence is
usually imposed for an attempted crime than for the completed.

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9.2 ATTEMPT

Reference: See Snyman 2020: 241-251 OR Snyman 2014 :276-286.

 Criterion for punishable attempt

It is difficult to ascertain when does a specific act constitute a punishable attempt or

not. The criterion used to determine whether an attempt is punishable is by
distinguishing between:
a) acts of preparation to commit a crime, which do not constitute a punishable
attempt) and
b) acts of execution (consummation), which is required for a punishable crime
of attempt.

 Subjective and objective approaches

The courts apply subjective as well as objective approaches or tests relating to
attempt.

When a subjective test is used, the subjective state of X’s mind or her intention when
she performed the act is decisive. The subjective test focuses on the intention of the
perpetrator and this subjective approach is applied for attempt to do the impossible.

In contrast, when an objective test is applied, only the facts from the outside is
considered, without the subjective intentions that X had when he performed the act.
The objective test regards mere intention as insufficient and focuses objectively on the
facts of the case.

 Intention
Intention is the form of fault required for a conviction on an attempt to commit a crime.

 Types of attempt
There are four different types of attempt:

184
 1
o Completed attempt: The perpetrator, whose conduct qualifies as acts of
execution, does everything in his/her power to commit the crime, but does not
succeed.
For example: X shoots at Y to kill her, but misses.

Read and study the following court case

S v Phiri 2014 (1) SACR 211 (GNP)

S v Phiri 2014 (1) SACR 211 (GNP)

Facts of the case

Legal question for the court to answer

Decision of the court

2
o Interrupted attempt: The perpetrator’s acts, which are not merely preparatory but
already acts of execution, are interrupted and, therefore, the crime cannot be
completed.
For example: The perpetrator is caught, or another factor arises which obstructs
the completion of the planned crime.

Read and study the following court case

R v Schoombie 1945 AD 552

R v Schoombie 1945 AD 552

Facts of the case

185
Legal question for the court to answer

Decision of the court

o 3 Attempt with voluntary withdrawal: Although the perpetrator’s conduct

already qualifies as acts of execution, she decides of her own free will not to
proceed and complete the crime.
For example: X poisons Y’s drink, but due to regret, she throws the poisoned
drink away before Y can drink it.

4
o Attempt to commit the impossible: In this case it is impossible for the
perpetrator, whose conduct qualifies as acts of execution, to commit or
complete the crime, because
a) the means used are inefficient and cannot bring about the desired result
(e.g. X wants to poison Y, but by mistake puts sugar in his drink), or
b) it is impossible to commit the crime in respect of the particular object in
respect of which the crime is committed. (e.g. X intends to kill Y and stab
her in the heart while she believes Y is sleeping, but Y already died an hour
earlier due to a heart attack).

A subjective test is used in cases of attempt to commit the impossible in that

the law punishes the X’s intention (evil state of mind) to attempt to commit the
impossible.

186
Read and study the following court case
R v Davies 1956 (3) SA 52 (A

R v Davies 1956 (3) SA 52 (A

Facts of the case

Legal question for the court to answer

Decision of the court

5
 Mistake (committing a putative crime)
An accused can only be found guilty of attempt to commit the impossible if he was
mistaken about the material facts.
For example: X tries to murder Y by putting poison in his food, but by mistake uses
salt and not poison - he was mistaken about the facts.

However, if X thinks that he is committing a crime, but he is mistaken about the law
because such a crime does not exist, he is committing a putative crime. An attempt to
commit a putative crime is not a punishable attempt.
For example: If X thinks that it is a crime to give another person a knife, and X gives
a knife to Y, X is mistaken about the law. X thinks he commits a crime, but such a
crime does not exist. X is not guilty of a punishable attempt to commit the impossible,
because he was mistaken about the law.
Another example: When a person thinks that adultery is still a crime and he attempts
to commit adultery, he cannot be convicted of attempted adultery based on his
mistaken view of the law.

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9.3 CONSPIRACY
Reference: See Snyman 2020:252-254 OR Snyman 2014:286-289.

Definition:
Conspiracy is a statutory crime established in terms of section 18(2)(a) of the Riotous
Assemblies Act 17 of 1956, which reads as follows:
Any person who …conspires with any other person to aid …or to
commit…any offence…shall be guilty of an offence.

Conspiracy to commit a specific crime is an agreement between two or more persons

to commit a crime. The conduct element of the crime of conspiracy is completed the
moment when an agreement is reached between the parties to commit the crime –
how the crime is to be committed need not be agreed upon. However, there is no
conspiracy while the parties are still only negotiating to commit the crime. An
accidental simultaneous but separate decision to commit a crime is also not a
conspiracy.
Further, the actual commission of the crime, which was conspired to, must not be
completed – otherwise, the main crime is committed and both parties must be charged
with that crime and not for conspiracy.

Intention is the required form of fault. The State needs to prove that X not only had the
intention to conspire with another, but also that she intended to commit a crime or to
assist in the commission thereof.

Read and study the following court case

R v Sibuyi 1993 (1) SACR 235 (A)

R v Sibuyi 1993 (1) SACR 235 (A)

Facts of the case

188
Legal question for the court to answer

Decision of the court

9.4 INCITEMENT

Reference: See Snyman 2020:255-263 OR Snyman 2014:289-296.

Definition:
Incitement is also a statutory crime established in terms of section 18(2)(b) of the
Riotous Assemblies Act 17 of 1956, which reads as follows:

Any person who …incites, instigates, commands or procures any other

person to commit any offence…shall be guilty of an offence.

An inciter is someone who unlawfully communicates with another person with the
intent to influence him to commit a crime.

The crime of incitement only applies when the one who is incited does not commit the
planned crime (to which he was incited). Should he commit the crime, the inciter and
the person who was incited are both responsible (as perpetrators) for the commission
of the planned main crime.

According to the decision in S v Nkosiyana 1966 (4) SA 655 A a degree of persuasion

is not required before incitement is constituted – a mere request to commit a crime is
sufficient. Even when the other party refuses to commit the crime, the conduct element
is still completed as soon as the inciter communicated to the other party the request

189
to commit the crime. The communication must reach the person who is incited,
otherwise it is at the most an attempted incitement.

Similar to attempt and conspiracy, the State needs to prove fault in the form of intention
in order to secure a conviction of incitement.

Even where the planned crime cannot be committed as the result of, for instance,
mistake of fact, the inciter can still be found guilty of incitement on the basis of the
more subjective approach – similar to attempt.

Read and study the following court case

S v Dick 1969 (3) SA 267 R

S v Dick 1969 (3) SA 267 R

Facts of the case

Legal question for the court to answer

Decision of the court

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 LEARNING OUTCOMES: UNIT 9

After completing Unit 9 students will be able to:

1. Define the incomplete crimes of attempt, conspiracy and incitement.

2. Identify the different forms of attempt.
3. Map out the general elements of the incomplete crimes of attempt, conspiracy and
incitement.
4. Distinguish between the incomplete crimes of attempt, conspiracy and incitement.
5. Apply his/her knowledge about incomplete crimes and relevant case law towards
solving practical problems that require an analysis and evaluation of criminal liability.

*Example of assessment questions that will be discussed during

tutorial sessions:

o Explain whether the person whose name is underlined is guilty of attempted

theft. Motivate your answer.
 Jealous makes a mistake of fact, he thinks a wild cat (that does not
belong to anyone and can thus not be stolen) is domesticated and
belongs to Manyanya. Jealous takes this wild cat home with the intention
to keep it permanently.

o Distinguish between the following:

 Conspiracy and common purpose;
 Incitement and vicarious perpetration.

Notes:
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191
 LEARNING UNIT 10
CRIMES AGAINST THE PERSON

The purpose of Unit 10 is to introduce students to specific elements of selected crimes

that can be committed against a person. The Unit furthermore aims to enable students
to solve problems by applying their knowledge and skills to authentic scenarios
involving crimes that can be committed against a person.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:387-391
OR
Snyman: 2014 (437-441).

Court cases:
S v Mshumpa and Another 2008 (1) SACR 126 E
S v Nkwanyana 2003 (1) SACR 67 (W)
Ex parte the Minister of Justice: In re S v Grotjohn 1970 (2) SA 355 (C)

10.1 MURDER

10.1.1. Definition:
Murder is the unlawful and intentional causing of the death of another human being.

 Interest protected
The crimes of murder and culpable homicide protect everyone’s right to life
which is enshrined in section 11 of the Constitution.

10.1.2 Elements of the crime:

 1 Conduct and causation (causing the death)

192
 On a charge of murder the act consists of a voluntary act or omission which
causes the death of another human being. The various causality theories apply
to determine whether the accused person was the factual and legal cause of
the victim’s death.

2
 The victim: a living human being
The victim must be another human being. Neither suicide nor attempted suicide
is a crime. A live but unborn foetus, still in his mother’s womb, is not regarded
as a “living human being” on a charge of murder.

Read and study the following court case

S v Mshumpa and Another 2008 (1) SACR 126 E

S v Mshumpa and Another 2008 (1) SACR 126 E

Facts of the case

Legal question for the court to answer

Decision of the court

 3 Unlawfulness
X’s conduct must be unlawful. If the homicide was committed in circumstances
that constitute a ground for justification, the killer cannot be found guilty of
murder. Common grounds of justification raised on a charge of murder include
private defence, necessity, obedience to orders and statutory official
authorisation. Note that the deceased’s consent to be killed is considered as

193
 contra bonos mores and therefore unlawful. Consent does not constitute a valid
defence on a charge of murder.

Read and study the following court case

S v Nkwanyana 2003 (1) SACR 67 (W)

S v Nkwanyana 2003 (1) SACR 67 (W)

Facts of the case

Legal question for the court to answer

Decision of the court

 4 Criminal capacity
4.1
 Intention
The State must prove beyond a reasonable doubt that the perpetrator intended
to cause the unlawful death. The test for intent is subjective. The perpetrator
must be aware that causing the death of the victim is unlawful, but still have the
will to proceed.

X’s motive is irrelevant and not an element of the crime. Sometimes X’s motive
may help to prove intent.

A mistake concerning a material element of the crime excludes intent.

Read and study the following court case

Ex parte the Minister of Justice: In re S v Grotjohn 1970 (2) SA 355 (A)

194
Ex parte the Minister of Justice: In re S v Grotjohn 1970 (2) SA 355 (A)
Facts of the case

Legal question for the court to answer

Decision of the court

10.2 CULPABLE HOMICIDE

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:391-392
OR
Snyman: 2014 (442-443).

Court cases:
S v Burger 1975 (4) SA 877 (A)
S v Van As 1976 (2) SA 921 (A)

10.2.1 Definition
Culpable homicide is the unlawful and negligent causing of death of another living
human being.

10.2.2 Elements of the crime

 1 Conduct and causation

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 X must negligently cause the death of another living human being.
 2 Unlawfulness
X’s conduct must be unlawful.
 3 Criminal capacity
 3 Negligence
.
1 The only element that distinguishes culpable homicide from murder is the form

of culpability. Whereas intent is required for murder, negligence is required for

culpable homicide.
The test for negligence is, in principle, objective. The test for liability on a
charge of culpable homicide is therefore
a) whether a reasonable person, in the same circumstances as the
accused, would have foreseen the possibility that Y’s death may result
from X’s conduct;
b) whether the reasonable person would have taken steps to guard against
such a possibility.
c) whether X’s conduct deviated from what the reasonable would have
done.
The slightest divergence from the test for negligence is sufficient to create
criminal liability.

According to the principle imperitia culpae adnumeratur, an accused is

charged with negligence if he/she ventured into a field whilst being aware of the
fact that he has no knowledge of that field.

When an expert, for example a doctor, causes the death of a person, the test
for the reasonable expert and not the test for the reasonable person, applies.

Read and study the following court case

S v Burger 1975 (4) SA 877 (A)

S v Burger 1975 (4) SA 877 (A)

Facts of the case

196
Legal question for the court to answer

Decision of the court

Read and study the following court case

S v Van As 1976 (2) SA 921 (A)

S v Van As 1976 (2) SA 921 (A)

Facts of the case

Legal question for the court to answer

Decision of the court

10.3 ASSAULT

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:395-401; 320-327

197
OR
Snyman: 2014 (447-454); 2014 (360-368).

Court cases:
S v Matle 1984 (3) SA 748 (NC)
S v Smith 2003 (2) SACR 135 (SCA)

There are different forms of assault:

 Common assault.
 Assault with intent to do grievous bodily harm.
 Sexual assault.

10.3.1 ASSAULT (COMMON)

See Snyman 2020:395-401 OR Snyman 2014:447-453.

10.3.1.1 Definition
Assault is the unlawful and intentional act or omission
a) which results in another person’s bodily integrity being directly or indirectly
impaired (apply force to the body of another); or
b) which inspires a belief in another person that impairment of bodily integrity
is immediately threatening.

 Interest protected
Section 12 of the Constitution enshrines everyone’s right to freedom and security of
the person, which includes the right to bodily integrity. The criminalisation of the
various forms of assault in criminal law thus protects the right to bodily integrity.

10.3.1.2 Elements of the crime

 1 Conduct
o Direct or indirect application of force
Direct force:
Perpetrators usually apply force directly by stabbing the victim with a knife,
kicking him or punching him with a clenched fist. It is not a requirement that X

198
injures Y. Subject to the de minimus non curat rule, the slightest contact with
Y’s body may be sufficient to constitute assault.

Indirect force:
Indirect force is when X does not use part of his body to apply force to Y’s body,
but uses an instrument or other strategy to violate Y’s bodily integrity. For
example, when X hits Y with a stick, let a dangerous dog loose on Y or slips
drugs into Y’s coffee without his consent, it may constitute assault.

Assault may be committed through the instrumentality of a third party. For

example, when X orders Z to assault Y en Z complies with the order.

It is not required that Y be conscious of the application of indirect force on her.

If Y cuts off Y’s hair when she is asleep or unconscious, it may still constitute
assault.

o Inspiring fear that force will be applied

Inspiring fear in another that force against him is immediately threatening
requires that the victim must fear that the accused would assault him.

Requirements for liability on inspiring fear that force will be applied:

a) Subjective test
It is not sufficient if an accused thinks that he inspires fear in the victim. The
subjective state of anxiety of the threatened person must thus be tested. For
example, where the threatened person is sleeping and is not aware of the
attempt to inspire fear, the accused can at the most be found guilty of attempted
assault.
b) Personal violence
The threat of violence must be against the person or body of Y and not a threat
against his property.
c) Immediate violence
Y must believe that physical force against him will take place immediately. A
threat of future assault is not sufficient.
d) Y’s fear need not be reasonable

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 The test is not whether the reasonable person would be frightened, but it will
suffice even if an unduly timid, superstitious or credulous person is frightened
by the threat.

 2 Unlawfulness
The slightest threat may constitute assault. Still, the crime of assault is limited
by unlawfulness and therefore minimal threats according to the de minimus rule
will not be considered as unlawful.

The usual grounds of justification as a defence against the charge of assault

are self-defence, public authority and consent to harm.

Consent may for example be raised as a ground of justification when a patient

charges a doctor following a therapeutic operation, or where someone is injured
during a sports competition.

 3 Intention
There is no crime such as negligent assault in our criminal law – it must take
place intentionally although dolus eventualis is a sufficient form of intent.

Read and study the following court case

S v Matle 1984 (3) SA 748 (NC)

S v Matle 1984 (3) SA 748 (NC)

Facts of the case

Legal question for the court to answer

Decision of the court

200
  4 Attempted assault
A conviction of attempted assault is possible when Y is unaware of the threats
because she is asleep or does not understand the threats. X may also be
convicted of attempted assault when X intends to assault Y and kicks Y in the
belief that Y is alive, whereas Y is already dead.

10.3.2 ASSAULT WITH THE INTENT TO DO GRIEVOUS BODILY HARM

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:400-401
OR
Snyman: 2014 (453-454).

Court case:
S v Smith 2003 (2) SACR 135 (SCA)

10.3.2.1 Definition:
Apart from all the requirements for assault discussed above, X must also have the
intent to do grievous bodily harm. Factors which may indicate that X had such an
intention are, for example, the nature of the weapon used, the degree of violence used,
the persistence or continuation of the attack and the part of the body aimed at.

10.3.2.2 Elements of the crime:

Read Snyman 2020: 400-401 OR Snyman 2014:453-454.

Read and study the following court case

S v Smith 2003 (2) SACR 135 (SCA)

201
S v Smith 2003 (2) SACR 135 (SCA)
Facts of the case

Legal question for the court to answer

Decision of the court

10.3.3 SEXUAL ASSAULT

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:320-327
OR
Snyman: 2014 (360-368).

10.3.3.1 Definition

The common law offence of indecent assault was repealed and replaced by a new
statutory offence called sexual assault. Section 5 of the new Criminal Law (Sexual
Offences) Amendment Act 32 of 2007 defines sexual assault as follows:

“(1) A person (X) who unlawfully and intentionally sexually violates a

complainant (Y), without the consent of Y, is guilty of the offence of sexual
assault.

202
 (2) A person (X) who unlawfully and intentionally inspires the belief in a
complainant (Y) that Y will be sexually violated, is guilty of the offence of sexual
assault.”

This crime criminalises sexual acts which fall short of non-consensual sexual
penetration (rape) of another person.

10.3.3.2 Elements of the crime:

1
 Conduct element: sexual violation
According to section 1 of this Act (32 of 2007), sexual violation includes the following:
“Any act which causes –
(a) direct or indirect contact between the –
(i) genital organs or anus of one person or, in the case of a female, her
breasts, and any part of the body of another person or an animal, or any
object, including any object resembling or representing the genital
organs or anus of a person or an animal;
(ii) mouth of one person and –
(aa) the genital organs or anus of another person or, in the case
of a female, her breasts;
(bb) the mouth of another person;
(cc) any other part of the body of another person, other than the
genital organs or anus of that person or, in the case of a female,
her breasts, which could –
(aaa) be used in an act of sexual penetration;
(bbb) cause sexual arousal or stimulation; or
(ccc) be sexually aroused or stimulated thereby; or
(dd) any object resembling the genital organs or anus of a person,
and in the case of a female, her breasts, or an animal, or
(iii) mouth of the complainant and the genital organs or anus of an
animal;
(b) the masturbation of one person by another person; or

203
 (c) the insertion of any object resembling or representing the genital organs of
a person or animal, into or beyond the mouth of another person, but does not
include an act of sexual penetration.

 2 Materially defined crime

The words “any act which causes” in the definition of the conduct element of
“sexual violation” mean that sexual assault is a materially defined crime which
consists of causing a specifically prohibited result, namely “sexual violation”.

Study the elements of sexual assault in Snyman 2020:320-327 OR Snyman 2014:

360-368.

10.4 RAPE

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:307-319
OR
Snyman: 2014 (343-358).

Court cases:
S v Willemse 2011 (2) SACR 531 (ECG)
S v SM 2013 (2) SACR 111 (SCA)

Rape existed for a long period as a common law offence in South Africa and was
known as the unlawful and intentional sexual intercourse of a male with a female,
without her consent (non-consensual penile penetration of a woman’s vagina).
.
10.4.1 Definition
In terms of the Criminal Law (Sexual Offence) Amendment Act 32 of 2007, the
common law definition of rape was replaced by the following statutory offence as
defined in section 3 of the Act. It reads as follows:

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 “Any person (“A”) who unlawfully and intentionally commits an act of sexual
penetration with a complainant (“B”), without the consent of B, is guilty of the
offence of rape.”

A new statutory offence called “compelled rape” was also created in terms of section
4 of this Act. Section 4 reads as follows:
“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.”

 Interest protected
The criminalisation of rape protects the constitutional rights to dignity (section
10) and bodily integrity (section 12).

10.4.2 Elements of rape

 1 Conduct element: sexual penetration

According to section 1 of this Act, “sexual penetration” includes any act which
causes penetration to any extent whatsoever by:
The genital organs of one person into or beyond the genital organs,
anus, or mouth of another person;
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; or
The genital organs of an animal, into or beyond the mouth of another
person.”

 2 Genital organs
The Act defines “genital organs” as including the male and female genital
organs, as well as surgically constructed or reconstructed genital organs.

 3 Materially defined crime

205
 The words “which causes penetration” in the definition of the conduct element
of “sexual penetration” mean that rape is not a formally defined crime, which
consists of merely committing a specifically prohibited act. Rape is a materially
defined crime which consists of causing a specific result, namely “sexual
penetration”.

 4 Parties to the rape

The crime is gender-neutral, therefore both the perpetrator as well as the victim
may be male or female.

 5 Lack of consent
Lack of consent is an essential characteristic of rape. The absence of consent
is defined in section 1(3) of the Act.
o The requirements for consent to succeed as a defence, entail that consent
must have been given by Y:
a) consciously and voluntarily, either expressly or tacitly,
b) by a person who has the mental ability to understand what he or she is
consenting to and
c) the consent must be based on a true knowledge of the material facts
relating to the intercourse.

o Factors nullifying valid consent

*Submission as a result of force, intimidation or threats
When Y submits to a sexual act (such as sexual assault or rape) because of
fear instilled by X who applies force to Y’s body or threatens to harm Y or
another person, voluntary consent is not present. Thus, consent obtained by
force is invalid. An example is where Y, following threats by a police officer that
he would arrest her if she does not submit, agrees to an act of sexual
penetration with X.

*Abuse of power or authority

In cases where X does not threaten Y with physical violence, but X abuse his
position of power or authority to influence Y to consent, there is also no

206
 voluntary consent. X may for example be the father, church leader or teacher
who abuses his position of authority to influence a child to consent to
intercourse.

*Consent obtained by fraud.

Fraud may be raised as a defence by the victim in the following circumstances:
a) when Y was defrauded about the identity of X
For example, when X misrepresented himself as the husband of Y.
b) when Y was misled about the nature of the act of sexual penetration to
believe that it is for example a medical operation ( R v Williams 1931 (1) PH
H38 (E)).

*Incapable in law to appreciate the nature of sexual acts

The following persons are incapable of giving valid consent to an act of
sexual penetration:
 A sleeping person.
 An intoxicated, drugged or mentally challenged person
(depending on the degree).
 A child under the age of 12 years.

6
 Unlawfulness:
Grounds of justification may be raised as defence on the element of
unlawfulness. X may raise necessity in the form of duress when a third party,
Z, threatens to kill X if he does not rape Y. Importantly, a marital relationship is
no defence. A husband may be convicted of sexually assaulting or raping his
wife, because a married person (husband or wife) charged with these crimes
cannot raise the fact that they are married to the complainant as a defence.18
.
7
 Intent

1818 Section 56(1).of Act 32 of 2007.

207
 Rape can only take place with intent. This means that the accused must have
intended to commit an act of sexual penetration, without consent, and with
knowledge of unlawfulness.

Read and study the following court case

S v Willemse 2011 (2) SACR 531 (ECG)

S v Willemse 2011 (2) SACR 531 (ECG)

Facts of the case

Legal question for the court to answer

Decision of the court

Read and study the following court case

S v SM 2013(2) SACR 111 (SCA)

S v SM 2013(2) SACR 111 (SCA)

Facts of the case

Legal question for the court to answer

Decision of the court

208
10.5 CRIMEN INURIA

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:407-412
OR
Snyman: (2014:461-467).

Court cases:
S v Holiday 1927 CPD 395
S v Momberg 1970 (2) SA 68 (C)
S v Sharp 2002 (1) SACR 360 (Ck)

10.5.1 Definition
Crimen iniuria is the unlawful, intentional and serious violation of the dignity or privacy
of another.

 Interest protected
This crime protects everybody’s constitutional rights to dignity( section 10) and to
privacy ( section 14). Snyman distinguishes between dignity and privacy. Dignity refers
to a person’s self-respect or mental tranquillity and Y’s dignity can only be impaired if
Y is aware of X’s conduct. In contrast, Y’s privacy may be infringed without Y being
aware of it.

Read and study the following court case

S v Holiday 1927 CPD 395

S v Holiday 1927 CPD 395

Facts of the case

209
Legal question for the court to answer

Decision of the court

10.5.2 Elements of the crime

10.5.2.1 Conduct
The act consists of violating another person’s privacy or dignity. A conviction
on this crime does not require that X’s offending conduct or words should have
come to the attention of people other than Y (the victim).

* Violation of privacy
Privacy is violated by unwanted intrusion of Y’s privacy, for example, by reading
his private messages or planting hidden cameras or listening-in devices in his
home.

*Violation of dignity
Y’s dignity can be violated either by word or by deed and both a subjective and
objective test is applied:
- The subjective test requires that Y must (a) be aware of X’s offending
conduct and (b) feel humiliated or degraded by it. The exception to this rule
is when Y is a young child or a mentally challenged person, who does not
feel degraded by X’s conduct, because they cannot understand the nature
of X’s conduct.
- An objective test is applied to determine whether X’s conduct would at least
also offend the feelings of a reasonable person.
10.5.2.2 Unlawfulness

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Only serious violation of dignity or privacy is considered unlawful. A conviction on
crimen iniuria requires that the violation of Y’s dignity or privacy is of such a serious
nature that it justifies punishment in the interests of society. Everyday minor insults
uttered against a person, is considered a triviality according to the de minimus rule
and not punishable.
Various factors are taken into account to determine the unlawfulness and
seriousness of the violation, including:
 the time when and place (public or private) where the violation
occurs;
 the respective ages of the complainant and accused;
 the sex and social status of the complainant and accused;
 whether the insult has a racial or sexual connotation;
 whether the insult is addressed to a public official on duty.

Read and study the following court case

S v Momberg 1970 (2) SA 68 (C)

S v Momberg 1970 (2) SA 68 (C)

Facts of the case

Legal question for the court to answer

Decision of the court

Read and study the following court case

211
S v Sharp 2002 (1) SACR 360 (Ck)

S v Sharp 2002 (1) SACR 360 (Ck)

Facts of the case

Legal question for the court to answer

Decision of the court

10.5.23 Intention
Intent in any form is sufficient.

10.6 CRIMINAL DEFAMATION

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:412-415
OR
Snyman: (2014:467-469).

Court cases:
S v Hoho 2009 (1) SACR 276 (SCA)

10.6.1 Definition

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Criminal defamation consists of the unlawful and intentional publication of defamatory
allegations to third parties concerning another, which tends to injure the other person’s
reputation.

 Interest protected
This crime protects everybody’s constitutional rights to dignity (section 10).

10.6.2 Elements of the crime

10.6.2.1 Conduct
The prohibited conduct entails the defamation of a person’s good name or reputation
amongst others. A person’s reputation or fama is violated when a publication exposes
him to hatred, contempt or ridicule. The violation of another person’s reputation
constitutes criminal defamation even if the degree of violation is not serious. A
conviction on this crime requires that X’s publication of accusations against Y must
come to the notice of someone other than Y.

10.6.2.2 Unlawfulness
General grounds of justification such as consent, necessity or self-defence are often
raised on a charge of criminal defamation. There are also special grounds of
justification that are exclusive to criminal defamation:
 The defamatory publication is the truth and in the public interest that it be made
known
 The defamatory publication amounts to fair comment
o This protects the public interest in freedom of speech.
o The test is whether the reasonable person will consider the
accusations as commentary and not as facts.
 The defamatory allegation is made at a privileged occasion such as in
Parliament.

10.6.2.3 Intent
Any form of intent is a sufficient.

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Read and study the following court case
S v Hoho 2009 (1) SACR 276 (SCA)

S v Hoho 2009 (1) SACR 276 (SCA)

Facts of the case

Legal question for the court to answer

Decision of the court

10.7 KIDNAPPING

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:417-420
OR
Snyman: (2014:471-474).

Court case:
S v Mellors 1990 (1) SACR 347 (W)

10.7.1 Definition
Kidnapping consists in unlawfully and intentionally depriving a person of his or her
freedom of movement and/or if such person is under the age of 18 years, a child, the
parents or custodians of their control over the child.

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  Interest protected
Kidnapping protects the constitutional right to freedom of movement (section 21).

10.7.2 Elements of the crime

10.7.2.1 Conduct
The conduct element mainly consists of depriving a person, who may be a child or an
adult, of their freedom of movement by violent, cunning or any other means. This
happens when X captures Y, drives her to his home and locks her up. When Y is a
child under the age of 18 years and X removes her from the control of her parents it
also constitutes kidnapping, even though the child consented so such a removal. A
parent cannot commit this crime in respect of his or her own child.

 Deprivation of freedom of movement

X need not physically remove Y from one place to another, but may deprive her
of her freedom of movement by detaining her where she is. Persons who are
held as hostages in one place are also deprived of their freedom of movement.

 Duration of deprivation
The duration of the deprivation is usually irrelevant. Deprivation for a short time
(even only about an hour) is regarded as sufficient.

10.7.2.2 Unlawfulness
Grounds of justification, including a court order, consent, public authority (when a
police officer lawfully arrests a person) or necessity, may be raised on a charge of
kidnapping. A child’s consent to the removal in a kidnapping case is not a valid
defence.

10.7.2.3 Intention
Intent must be proved with respect to each element of the crime. The accused’s
intention must be (or he/she should at least have foreseen the possibility thereof) to
deprive the kidnapped person of his freedom of movement, while knowing that it is
unlawful to do so. The duration during which a person is deprived of his freedom of
movement can be indicative of intent, but a long time is no requirement for the crime.

215
X need not intend to deprive Y permanently of her freedom of movement. X’s motive
in depriving Y of her freedom of movement or the parents of their control over the child
is immaterial for liability – motive is not an element of a crime.

Read and study the following court case

S v Mellors 1990 (1) SACR 347 (W)

S v Mellors 1990 (1) SACR 347 (W)

Facts of the case

Legal question for the court to answer

Decision of the court

10.8 CRIMES AGAINST THE PERSON IN TERMS OF THE WITCHCRAFT

SUPPRESSION ACT 3 OF 1957

There are various forms of witchcraft, such as European witchcraft, African witchcraft
(busakatsi) and Euro-American witchcraft. The absence of definitions for “witchcraft”
and other core concepts in the Witchcraft Suppression Act 3 of 1957 are therefore
problematic and obstructs legal certainty. The term “witchcraft” within an African
context usually refers to the cultural belief that a person, who possesses magical or
supernatural powers, has influence on another person’s property, mind or body. 19
Customary law provides for sanctions aimed at restitution for witchcraft abuses, while
criminal law legislation created crimes to protect the innocent against harm caused by
witchcraft.

19Singh, A and Msuya, MH. 2019. Witchcraft accusation and the challenges related thereto: can
South Africa provide a response to this phenomenon experienced in Tanzania? Obiter: 106-116:105.

216
  Key witchcraft-related offences in South African law
The following key offences are created in the Witchcraft Suppression Act 3 of 1957:

o Witchcraft accusation
A believer in witchcraft sometimes accuses another person of using witchcraft to cause
injury to others or damage to property. Such accusation, which often lead to violence
or the killing of the other person, is criminalised in the Act. Although witchcraft is
practiced by both women and men, victims being accused of witchcraft are mostly
women. Because witchcraft accusation discriminates against women, it is a gender
phenomenon and may be viewed as a form of gender-based violence.20
o Witch identification
People who suspect that they are the victims of witchcraft often hire a person, usually
a witch-finder, witchdoctor or traditional healer, to identify the person, who has harmed
them by using witchcraft.21 In terms of the Act, any person who identifies another
person as a witch or a wizard commits a crime. Therefore, even a person who reports
to the police that another person is a witch, may be convicted of this crime.

o Practicing witchcraft
Witchcraft is used for various criminal purposes, namely
- to advise another how to bewitch/injure/damage;
- to injure/damage;
- to find stolen or lost items for gain.

Section 1 of the Witchcraft Suppression Act 3 of 1957, based on the colonial British
Witchcraft Suppression Act of 1735, creates the following crimes:
Any person who
a) accuses (imputes to) another person of causing, by supernatural means,
any disease or injury to another person or damage to property; or
identifies (names/indicates) another person as a wizard;
b) while admitting (professing) or pretending to use any supernatural power,
witchcraft or sorcery,22 accuses (imputes to) another person of causing the
death, injury, disease or disappearance of another person or damage to property;
c) employs any witchdoctor, witch-finder or any other person to identify
(name/indicate) any person as a wizard;23
d) admits (professes) knowledge of witchcraft, or the use of charms, and
advises any person how to bewitch, injure or damage any person or thing;

20 Singh and Msuya 2019:106-108.

21 Singh and Msuya 2019:106.

22 The Witchcraft Suppression Act 3 of 1957 does not provide a definition of the concepts “witchcraft”
or “sorcery”.

23 The Witchcraft Suppression Act 3 of 1957 does not provide a definition of the concept “wizard”.

217
e) on the advice of any witchdoctor, witch-finder or other person or on the ground
of any pretended knowledge of witchcraft, uses any means which is calculated
to injure another person or damage property;
f) for gain pretends to exercise or use any supernatural power, witchcraft or
sorcery, or undertakes to tell fortunes, or pretends from his skill in or knowledge
of any occult science to discover where and in what manner anything supposed
to have been stolen or lost may be found,
is guilty of an offence.

Sec. CRIMES in terms of the Witchcraft Suppression Act 3/1957

1(a) Witchcraft accusation X accuses Y of causing disease /injury/damage
by Y using supernatural means
1(b) Witchcraft accusation X uses supernatural power/witchcraft 
to accuses Y of causing disease/death/disappearance/damage
1(a) Witch identification X identifies Y as a wizard

1(c) Witch Identification X employs Z to identify Y as a wizard

1(d) Advise how to bewitch X admits (use) knowledge of witchcraft 

to advises Y how to bewitch /injure/damage
1(e) Practicing witchcraft X (bewitch) use any means to injure Y or damage
to injure/damage -on advice of any person/witchdoctor or
-based on own witchcraft knowledge
1(f) Practicing witchcraft for to discover where stolen or lost thing may be found
gain

 Sanctions
A person convicted on section 1(a) or (b) may be sentenced to a maximum of 10 years
imprisonment, but if the victim is killed or the accused is proven to be a witchdoctor or
witch-finder, the maximum imprisonment is 20 years. For a conviction on section 1(c),
(d) or (e) the maximum imprisonment is 5 years and for section 1(f) it is 2 years.

 Effect of witchcraft criminalisation within cultural context

The cultural belief in witchcraft is a complex issue. Witchcraft accusation and
the subsequent killing of witches are still part of the culture of certain
communities. Consequently, punishing the killing of alleged witches as
murder creates a conflict between criminal law principles and the cultural
belief in witchcraft. 24 It also requires the balancing of conflicting
constitutional rights, namely the right to be free from all forms of violence
and the right to exercise one’s culture, religion and beliefs.

Critical assessment of the Witchcraft Suppression Act 3 of 1957

The Witchcraft Suppression Act has been criticised from various perspectives.
Members of the South African Pagan Council (SAPC) argue that they are self-
defined witches and bear testimony to the existence of witchcraft, but that they are
24 Singh and Msuya 2019:111.

218
neither evil nor criminals. SAPC, therefore, proposed the repeal of the Act, because it
criminalises witchcraft and self-defined witches such as Pagans. The basis of their
proposal is that witchcraft is part of their religion, and the provisions of the Act violates
their constitutional rights, such as their rights to religious freedom (section 15);
freedom of expression (section 16); equality (section 9) and human dignity (section
10). Importantly, they also criticise the Act’s failure to define “witch” and “witchcraft.”
The SAPC acknowledges that historically in the South African context, the words
“witch” and ”witchcraft” have been used to describe evil or criminal practices
associated with ritual killings and misfortune in general.25 However, they argue that no
legislation on witchcraft is needed and that the misuse of witchcraft should be dealt
with in terms of the common law.26

Traditional Healers Organisation (THO) also proposed that the colonial-era

Witchcraft Suppression Act should be repealed, but that it be replaced by a new Act.
The new Act should address abuses and violence associated with witchcraft, and
should provide a definition of busakatsi, which refers to witchcraft in an African context.
Busakatsi includes the use of harmful medicine; harmful magic; and other means that
may cause illness, misfortune or death to a person or damage to property. The THO
further argues that there is a need for legislation that will identify and control busakatsi
practices. This would enable the courts not only to protect innocent people who are
accused by others of busakatsi, but also to punish people convicted of practising
busakatsi.27

Against this background, the South African Law Reform Commission (SALRC)
published in 2014 an Issue Paper28 on the review of the Witchcraft Suppression Act 3
of 1957 followed by a Discussion Paper29 in 2016, inviting submission for reform on
this branch of law. However, by 2020 no further progress has been made to finalise
law reform by introducing new legislation on witchcraft.

Witchcraft and the transformative role of the Constitution

25
This assertion by SAPC is confirmed by the Ralushai Commission’s definition of a “witch” as a
person who “ through sheer malice… employs magical means to inflict all manner of evil on their
fellow human beings. They destroy property, bring disease or misfortune and cause death, often
entirely without provocation to satisfy their inherent craving for evil doing.” Furthermore, the
Mpumalanga Witchcraft Suppression Bill defines “witchcraft” as “…the secret use of muti, zombies,
spells, spirits, magic powers, water, mixtures, etc, by any person with the purpose of causing harm,
damage, sickness to others or their property” – see SALRC 2014:3 foot note 6.

26
SALRC (South African Law Reform Commission). 2014. Issue paper 29. The review of the
Witchcraft Suppression Act 3 of 1957. Project 135:1-2.

27 SALRC 2014:2.

28
SALRC (South African Law Reform Commission). 2014. Issue Paper 29. The review of the
Witchcraft Suppression Act 3 of 1957. Project 135.

29
SALRC (South African Law Reform Commission). 2016. Discussion Paper 139. The review of the
Witchcraft Suppression Act 3 of 1957. Project 135.

219
Witchcraft practices that causes harm to others violate various constitutional
rights, including the right to life, freedom and security of the person, to be free
from all forms of violence, as well as not to be tortured or treated in a cruel,
inhuman and degrading way.

The Constitution of the Republic of South Africa is of crucial importance in issues

concerning witchcraft-related crimes. On the one hand, the Constitution guarantees
every person’s right not to be discriminated against based on religion, belief or culture.
Still, the right to practice witchcraft as religion or culture may, however, not be
exercised in a manner inconsistent with the Bill of Rights.30 On the other hand, the
Constitution also compels the state to protect its citizens against all forms of violence.
There is, therefore, an urgent need to replace the pre-constitutional Witchcraft
Suppression Act with legislation that is compatible with the Constitution and balances
these conflicting constitutional rights. It is suggested that the intentional use of
witchcraft to harm others should be criminalised to protect people against all forms of
violence and not the cultural and religious practice of witchcraft itself.

LEARNING OUTCOMES: UNIT 10

After completing Learning unit 10, students will be able to:

1. Give a definition for and analyse the specific elements of the following crimes that
can be committed against a person:

30 Sec 9 and 31.

220
 1. Murder;
2. Culpable homicide;
3. Assault (common);
4. Assault with intent to do grievous bodily harm; and
5. Sexual assault;
6. Rape;
7. Crimen iniuria;
8. Criminal defamation; and
9. Kidnapping

2. Identify and discuss the various offences that can be committed against the person
in terms of the Witchcraft Suppression Act 3 of 1957.

3. Critically discuss the effect of criminalising witchcraft within cultural context.

4. Identify the different crimes (against a person) a perpetrator may be convicted of in

a given set of facts as well as the possible defences that can be raised by a perpetrator
in the given scenario.

*Example of assessment questions that will be discussed during

tutorial sessions:

o Identify and discuss the various offences that can be committed against the
person in terms of the Witchcraft Suppression Act 3 of 1957.

o State the crime/crimes, if any, of which you will prosecute X in each one of the
following scenarios.Briefly motivate your answers:
 X is aware of his HIV-positive status and while withholding this information
from Y, engages in unprotected sexual intercourse with her, with the
consent of Y.
 X penetrates the genitals of Y without her consent. During this act of
penetration, he stops, turns Y on the side and then also penetrates her anus.
 X uses an object resembling the genital organs of an animal to force into the
mouth of Y, without his consent.
 X uses a stick to hit Y on the head. Y gets 10 stitches.
 X threatens Y with immediate and deadly violence – not knowing that Y
cannot hear him.

Notes:
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222
 LEARNING UNIT 11
CRIMES AGAINST THE STATE – PUBLIC VIOLENCE

The purpose of this Unit is to introduce students to the crime of public violence as
example of a crime that can be committed against the state. The Unit furthermore aims
to enable students to solve problems by applying their knowledge and skills to
authentic scenarios involving this crime.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020:277-279
OR
Snyman: 2014 (311-314).

Court Case:
S v Mlotshwa 1989 (4) SA 787 (W)

11.1 DEFINITION
“Public violence consists in the unlawful and intentional commission, together with a
number of people, of an 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.”

 Interest protected
The Constitution provides in section 17 that everyone has “the right, peacefully
and unarmed, to assemble, to demonstrate, to picket and to present petitions”.
If it is not done peacefully, a conviction on public violence may follow.

11.2 ELEMENTS OF THE CRIME

223
 *Use Snyman 2020:277-279 OR Snyman 2014:311-314 to make your
own summary of the elements of the this crime.

*Conduct
"Act/acts... which are intented to disturb public peace and tranquality or
___________________________________________________________________
invade rights of others"
For example: faction fighting, violent resistance to police by a mob, rioting,
___________________________________________________________________
etc.
___________________________________________________________________
Note:
___________________________________________________________________
* Conduct can take place on private or public property
* Must be violence/ threat of violence.
___________________________________________________________________
* Mere intention to disturb public peace/ invade rights = Public Violence.
*Number of people
* NOT SINGULAR PERSON ACING INDEPENDENTLY
___________________________________________________________________
* Must be people acting in concert.
* Specifying No. people = UNNECCESSARY
___________________________________________________________________
* Each case judged on its own merrits.
___________________________________________________________________
* Regard is given in each case to character and dimensions of the
disturbance.
___________________________________________________________________
___________________________________________________________________
*Serious dimensions
* Mere THREAT or INTENDED disturbance of peace = INSUFFICIENT.
___________________________________________________________________
?: To prevent ABUSE of crime, so for instance - using crime to bring quarrelsome people to justice
when identification and involvement proves tricky.
*___________________________________________________________________
SAFETY is of concern, MEANING safety of others being thretened in a serious nature = Public
Violence.
*___________________________________________________________________
Factors of "serious dimention":
-___________________________________________________________________
Time - Locality & Duration of fight
- Cause - Status of participants
-___________________________________________________________________
Outcome - Armed or unarmed
- Assault / Property damage committed
*Unlawfulness
Both acts of the whole GROUP and participation of INDIVIDUALS in the group must
___________________________________________________________________
be UNLAWFUL.
* INDIV NOT UNLAW = ex. coercion or any other valid GoJ.
___________________________________________________________________
* GROUP NOT UNLAW = ex. private defece or any other valid GoJ.
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
*Intention
___________________________________________________________________
INDIVIDUAL participation = AWARE of group's CONDUCT being UNLAWFUL.
___________________________________________________________________
* Common Purpose = Group Members + Forcible disruption of peace and tranquiliy.
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________

224
Read and study the following court case
S v Mlotshwa 1989 (4) SA 787 (W)

S v Mlotshwa 1989 (4) SA 787 (W)

Facts of the case

Legal question for the court to answer

Decision of the court

225
 LEARNING OUTCOMES: UNIT 11

After completing Unit 11, students will be able to:

• Define the crime of Public Violence.
• Map out the elements of Public Violence.

In a given set of facts, identify the crime of Public Violence as well as the possible
defences that can be raised by an accused in the given scenario.

*Example of assessment questions that will be discussed during

tutorial sessions:

o Summarise the case of S v Mlotshwa 1989 (4) SA 787 (W) with reference to:
 The facts;
 The legal question;
 The decision of the court; and
 The reason for the court’s decision.

Notes:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
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226
 LEARNING UNIT 12
CRIMES AGAINST THE COMMUNITY
ABDUCTION

Unit 12 deals with the common law offence of abduction as an example of a crime that
can be committed against the community (family). The possible conflict between the
custom “ukuthwala” and criminal law also enjoy attention. Furthermore, the Unit aims
to enable students to solve problems by applying their knowledge and skills to
authentic scenarios involving this crime.

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 351-354
OR
Snyman 2014: 395-399.

Court cases:
S v Sashi 1976 (1) SA 446 (N)
S v Jezile 2015 (2) SACR 452 (WCC)

12. COMMON-LAW ABDUCTION

12.1 Definition
Abduction is the unlawful and intentional removal of an unmarried child (below the age
of 18 years) from the control of his or her parents (or guardian) and without the parents’
consent with the intention that such a person or somebody else may marry the child
or have sexual intercourse with the child.

 Interest protected

227
 The twofold interests of parents or guardians are protected, namely
a) their factual exercise of control over the minor and
b) their right to consent to the minor’s marriage.

12.2 Elements of the crime

12.2.1 Conduct
The conduct element requires that X must
a) remove the child, being either a boy or a girl, from the parents’ control and
b) that the removal must be without the consent of the parents.
Whether the removal takes place constructively, by force or whether the child is a
willing party (leaves voluntarily), is immaterial.

 An unmarried child
The crime of abduction cannot be committed with respect to a major, a widow or
divorced person, but it can be committed with respect to an emancipated minor. The
minor can be male or female. The fact that the minor is a prostitute or a virgin does
not affect criminal liability of the doer, although it can affect the punishment.

 From the control of the parents/guardian

The minor must be under the control or authority of a parent or guardian. When the
minor visits another place with the consent of the parent or guardian, authority or
control is not absent.

12.2.2 Unlawfulness
The removal must be unlawful and for instance not in terms of a court order or an
emergency (necessity). X cannot raise Y’s (the child’s) consent to the removal as a
defence, because the crime is not committed against Y but the parents or guardian.
The usual requirements for valid consent by the parents apply, namely that it must be
given voluntarily and without force.

12.2.3 Intent

228
X must intend (at the time of removal) to remove a minor without the consent of
parents or guardians from their control to enable him or herself or another person
either to marry the minor or to have sexual intercourse with the minor. X must also
intend to remove Y either permanently or at least for a substantial period.

Read and study the following court case

S v Sashi 1976 (1) SA 446 (N)

S v Sashi 1976 (1) SA 446 (N)

Facts of the case

Legal question for the court to answer

Decision of the court

It may be argued that the very existence of common law abduction as a crime is in
conflict with custom of ukuthwala. S v Jezile 2015(2) SACR 452 WCC provides more
clarity on this matter.

Read and study the following court case

S v Jezile 2015 (2) SACR 452 (WCC)

S v Jezile 2015 (2) SACR 452 (WCC)

Facts of the case

229
Legal question for the court to answer

Decision of the court

230
 LEARNING OUTCOMES: UNIT 12

After completing Learning unit 12, students will be able to:

1. Define the crime of common law abduction.
2. Analyse the elements of common law abduction.
3. Identify common-law abduction in a given set of facts.

Explain the legal position of the custom ukuthwala as defence in criminal proceedings.

*Example of assessment questions that will be discussed during

tutorial sessions:

o Distinguish between common law abduction and kidnapping.

o Does the custom of ukuthwala serve as defence in criminal
proceedings?
o Choose the most appropriate answer:The following statement/s on the
legal position of the crime of common law abduction is/are incorrect:

 the crime prohibits the unlawful and intentional removal of an

unmarried child of under 18 years old from the parents’ or
guardian’s control without their permission;
 the crime represents a wrong committed against the parents or
guardian of the minor;
 the minor’s consent to be removed from the control of the
parents is no defence;
 the legal interest that is protected by this crime is the parents’
exercise of control over the minor and the parents’ right to
consent to the minor’s marriage;
 when an adult man removes a 17-year-old boy for a substantial
time from his parents’ control for homosexual practices and the

231
 adult engages in consensual anal sexual penetration with the
boy, the crime of common law abduction is not committed;
 Abduction cannot be committed with respect to a widow or
divorced child under the age of 18 years;
 None of the above;
 (e) and (f).

Notes:
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232
 LEARNING UNIT 13
CRIMES AGAINST THE ADMINISTRATION OF
JUSTICE

The purpose of this unit is to introduce students to crimes that can be committed
against the administration of justice. The unit furthermore aims to enable students to
solve problems by applying their knowledge and skills to authentic scenarios involving
the crimes of defeating and obstructing the course of justice and perjury.

13.1 INTRODUCTION
Crimes against the administration or course of justice can be subdivided into contempt
of court, defeating or obstructing the course of justice, perjury, statutory perjury and
making a conflicted statement under oath. Defeating or obstructing the course of
justice and common-law perjury are discussed hereunder as examples of these
crimes.

13.2 DEFEATING AND OBSTRUCTING THE COURSE OF JUSTICE

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 292-296
OR
Snyman: 2014 (327-331).

Court case:
S v Bazzard 1992 (1) SACR 302 (NC)

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13.2.1 Definition
The crime of defeating or obstructing the course of justice consists in unlawfully and
intentionally engaging in any conduct which defeats or obstructs the course or
administration of justice.

13.2.2 Elements of the crime

13.2.2.1 Conduct

 The course of justice

The interest protected by this crime is the due administration of justice by the superior
and lower courts in either civil or criminal proceedings.

 Difference between defeating or obstructing

A person can only be convicted of defeating the course of justice if it is proved that
justice has indeed been defeated. When an innocent person has been convicted or a
guilty party acquitted, the course of justice has been defeated. A conviction on
obstructing the course of justice may follow when the course of justice was not
defeated but X for example gave false information to the police, tampered with exhibits
in a case, unlawfully tried to buy a police docket from the prosecutor or asked the
complainant to withdraw a charge.

13.2.2.2 Unlawfulness
Ordinary grounds for justification may be raised as a defence.

13.2.2.3 Intent
The doer must have the intent to defeat or obstruct the course of justice. It is suggested
that the decision in S v Perera 1978 (3) SA 523 (T) is correct, where it was decided
that if a motorist warns another person of a speed trap he only commits a crime if it
can be proved that he subjectively foresaw that the other driver exceeded the speed
limit.

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Read and study the following court case
S v Bazzard 1992 (1) SACR 302 (NC)

S v Bazzard 1992 (1) SACR 302 (NC)

Facts of the case

Legal question for the court to answer

Decision of the court

13.3 PERJURY

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 296-300
OR
Snyman: 2014: 332-335.

Court cases:
R v Malianga 1962 (3) SA 940 (SR)
R v Beukman 1950 (4) SA 261 (O)

13.3.1 Definition
13.3.1.1 Common-law Perjury

235
Perjury consists in the unlawful and intentional making of a false statement under oath,
or any form of warning which the law allows instead of the oath, in the course of a
judicial proceeding and before a competent authority.

As there are gaps in the definition of common-law perjury, the legislature intervened
and created statutory perjury.

13.3.1.2 Statutory Perjury

Statutory perjury is described in Section 319(3) of the old Criminal Procedure Act No
56 of 1955. This section was not recalled by the present Criminal Procedure Act 51 of
1977. The offence of statutory perjury is committed if there are two different statements
made at different times under different oaths. It is only necessary for the State to prove
that the statements conflict with each other and it is not necessary to prove which, if
any, statement is untrue. (Snyman 2020: 299-300 OR Snyman 2014:336).

13.3.2 Elements of common law perjury

13.3.2.1 Conduct
 Making a false declaration
X must make a false declaration concerning a factual circumstance. From an objective
point of view, the declaration must be false. If the witness thinks that he does not tell
the truth, but he in reality does talk the truth, he commits attempted perjury only.

 Under oath
Perjury is committed only if the false declaration is made under oath.
o Taking an oath
An oath can be administered by a ‘competent person’ concerning verbal or
written declarations. A commissioner of oaths or a justice of the peace qualify
as competent persons. (Section 162 of the Criminal Procedure Act 51 of 1977).
o Solemnly confirms
o For conscientious objectors, the Criminal Procedure Act 51 of 1977
prescribes a procedure in terms of which such a person confirms that he
is talking the truth.
o Merely warned

236
 Young children who do not understand the meaning of an oath, are warned to
tell the truth. For perjury, this confirmation and warning have the same effect as
an oath. (Section 164 of the Criminal Procedure Act 51 of 1977).

 In the course of judicial proceedings

The declaration must be made in the course of judicial proceedings which usually
refers to proceedings in a court of law and includes both criminal and civil cases.

13.3.2.2 Unlawfulness
An ordinary ground for justification such as coercion (necessity) can be raised
successfully against a charge of perjury.

13.3.2.3 Intent
Intent in any form is sufficient.

Read and study the following court case

R v Malianga 1962 (3) SA 940 (SR)

R v Malianga 1962 (3) SA 940 (SR)

Facts of the case

Legal question for the court to answer

Decision of the court

Read and study the following court case

237
R v Beukman 1950 (4) SA 261 (O)

R v Beukman 1950 (4) SA 261 (O)

Facts of the case

Legal question for the court to answer

Decision of the court

238
 LEARNING OUTCOMES: UNIT 13

After completing Learning Unit 13, students will be able to:

• Define the crimes of defeating/obstructing the administration of justice as well
as perjury.
• Analyse the elements of the above-mentioned crimes.
• Distinguish between defeating and obstructing the administration of justice.
• Distinguish between common law perjury and statutory perjury.

Identify the offences against the administration of justice in a given set of facts.

*Example of assessment questions that will be discussed during

tutorial sessions:

o Distinguish between common law perjury and statutory perjury.

o Discuss the differences between (compare) S v Malianga 1962 (3) SA 940 (SR)
and R v Beukman 1950 (4) SA 261 (O) pertaining to the:
 the courts’ decisions and
 the reasons for the courts’ decisions.

Notes:
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239
 LEARNING UNIT 14
CRIMES AGAINST PROPERTY

The purpose of this unit is to introduce students to crimes that can be committed
against property. The unit furthermore aims to enable students to solve problems by
applying their knowledge and skills to authentic scenarios involving the crimes that
can be committed against property.

14.1 THEFT

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 421-436
OR
Snyman: 2014 (475-502).

Court cases:
S v Cele 1993 (2) SACR 52 (N)
S v Mostert and Another 2010 (1) SACR 223 (SCA)

14.1.1 Definition
Theft is the unlawful and intentional appropriation of movable corporeal property which
belongs to:
a) another person and is in the other person’s possession;
b) another person, but is in the possession of the perpetrator (embezzlement); or
c) the perpetrator, but is in the possession of another person who has the right to
possess it,
with the intention to permanently deprive such other person thereof.

240
14.1.2 Elements of the crime

14.1.2.1 Conduct: Appropriation

The act required to commit theft was previously described as a contrectatio, which
means the touching of a thing. However, a thing can be stolen without touching it: it
happens when X chases Y’s chickens from Y’s property onto his own property without
touching them.

Snyman prefers to describe the conduct element as “appropriation”, which requires

two components, namely that the perpetrator must:
a) exclude the lawful owner/possessor from exercising control (his rights) over his
property; and
b) assume control over the stolen property as if he is the owner.

If X only complies with one of the two components only, the act of appropriation is not
completed and X can only be convicted of attempted theft.

 Moveable, corporeal property

To qualify as property capable of being stolen, the property must comply with the
following requirements:
a) The property must be movable.
Immovable property such as a house or a farm cannot be stolen.

b) The property must be corporeal (a physical thing).

The appropriation of a non-corporeal property is not theft. A design, idea or tune
(composition of a song) cannot be stolen, but X may be convicted of fraud if he
fraudulently represents the idea or tune to be his own.

The exception to this rule is the theft of money. Stealing money in the form of
corporeal coins and banknotes complies with the requirement that the property
must be a physical thing. However, when X steals money by making false
entries in a bank account, or manipulate a cheque, etc., he does not steal a
corporeal thing, but the economic value of money in its incorporeal form of
“credit”. “Credit” usually means the bank client’s right to claim money from a

241
 bank, because the bank is the owner of the money in the the bank. X also
commits theft of credit when he unlawfully uses Y’s credit card and his secret
“PIN” number to draw cash for himself from an automatic teller machine.

c) The property must be available in commerce (in commercium)

In other words, the property must be capable of being privately owned and
forming part of commercial dealings such as selling, exchanging or pledging
the property.
The following types of property are not available in commerce and thus not
susceptible to theft:
i. Res communes: namely property that belongs to everybody, such as the
air, water in the ocean or public streams or rivers.
ii. Res nullius: namely property belonging to nobody, such as wild bees,
birds or other wild animals. Still, when these wild animals are captured
and then owned by someone, they can be stolen. ( e.g. animals in a zoo)
iii. Res derelictae: namely property abandoned by its owners with the
intention to get rid of it, such as rotten food or broken furniture thrown
into garbage containers or onto rubbish dumps.

d) The property must belong (in principle) to someone else

In general, one cannot steal one’s own property. However, where X removes
his property from someone else’s possession who rightly has the the right of
possession against X, e.g. a pledge or holder of a right of retention, X also
commits theft.

Read and study the following court case

S v Cele 1993 (2) SACR 52 (N)

S v Cele 1993 (2) SACR 52 (N)

Facts of the case

242
Legal question for the court to answer

Decision of the court

Read and study the following court case

S v Mostert and Another 2010 (1) SACR 223 (SCA)

S v Mostert and Another 2010 (1) SACR 223 (SCA)

Facts of the case

Legal question for the court to answer

Decision of the court

14.1.2.2 Unlawfulness
Grounds for justification:
The unlawfulness of the appropriation may be excluded by grounds of justification
such as necessity or consent by the owner.

14.1.2.3 Intention: intend to permanently remove

Theft must be committed with the intention to appropriate the property in that X intend
to deprive Y of his control over the property and also intend to exercise the rights of

243
an owner over the property himself.

X must also have the intention to permanently deprive the owner of control over his
property. Therefore, it does not constitute theft when X uses Y’s car or other property
temporarily without Y’s consent, but with the intention to restore it to Y. 31

Motive is not an element of the crime. X need not intend to benefit or enrich himself.
Even when X has a generous motive and gives all the stolen goods to an orphanage,
it does not exclude the intention to steal.

14.2 THEFT FROM A SELF-SERVICE SHOP

It is sometimes difficult to determine exactly when the shop owner’s control ceases
and control of the thief commences. There are two possibilities:
i. A person removes an article from the shelf and conceals it in his clothing with
the intention of stealing it, but he is apprehended by a shop assistant before he
passes through the check-out point.
ii. A person removes an article from the shelf and conceals it in his clothing with
the intention of stealing it, but he is apprehended by a shop assistant after he
passes through the check-out point.
The test to be applied in such cases is the same as the general test to determine
whether there was an act of appropriation. The current trend in our case law as ruled
in S v Lujaba 1987 (1) SA 226 (A), is to convict the shoplifter of completed theft if, in
a self-service shop, he concealed an article in his clothing and was apprehended
before he could pass through the check-out point.

14.3 ROBBERY

VERY IMPORTANT

31Y may still be convicted of the removal of property for use in terms of section 1(1) of Act 50 of
1956.

244
It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 448-452
OR
Snyman: 2014 (508-512).

Court cases:
Ex parte Minister of Justice: In re S v Seekoei 1984 (4) SA 690 (A)
S v Sithole 1981 (1) SA 1186 (N)
S v Yolelo 1981 (1) SA 1002 (A)

14.3.1 Definition
Robbery is the unlawful and intentional stealing of property by using violence or threats
of violence to take the property from another person (possessor).

14.3.2 Elements of the crime

14.3.2.1 Conduct
 Theft
The normal requirements for theft (discussed above) also apply to robbery.

 Violence or threats of violence

The normal requirements for assault (discussed in Unit 10) also apply to robbery.

The violence must be directed at the person of Y by infringing his physical integrity.
The violence inflicted by X may be slight and need not injure Y.

Instead of applying violence, a threat of physical harm directed at Y to hand over her
property in its removal is sufficient. As is required for assault, the threat must be one
of immediate, physical violence against Y and not against someone else, such as her
child.

 Property need not be in Y’s immediate vicinity

The property need not be taken from Y’s person or even in his presence. It suffices if
the violence and the taking of the property form part of the same continuous

245
transaction and there is a causal link between the violence and the taking of the
property. When an employee is bound to a chair and her employer’s house is
thereafter stolen lock stock and barrel, this constitutes robbery.

Read and study the following court case

Ex parte Minister of Justice: In re S v Seekoei 1984 (4) SA 690 (A)

Ex parte Minister of Justice: In re S v Seekoei 1984 (4) SA 690 (A)

Facts of the case

Legal question for the court to answer

Decision of the court

 Bag-snatching cases
Handbag snatching amounts to robbery and nor merely theft when X intentionally
applies force, however slight, to Y’s person by snatching Y’s handbag out of her hands
in a sudden and unexpected movement. It is not required that Y offer resistance to the
taking. However, if Y is not holding or clutching the bag or object with her hand and X
snatches the object that is, for example, protruding from Y’s jacket pocket, X only
commits theft because no violence is directed at the person of Y.

Read and study the following court case

S v Sithole 1981 (1) SA 1186 (N)

S v Sithole 1981 (1) SA 1186 (N)

Facts of the case

246
Legal question for the court to answer

Decision of the court

14.3.2.2 Causal link between violence and removal of property

X must obtain the property as a result of the violence or threat. The violence must thus
precede or accompany theft and cause Y’s submission. However, it will still constitute
robbery even if the violence follows the completion of the theft as long as the link
between the theft and violence is so close that they are regarded as connecting
components of the same action.

However, if an accused decides only after assaulting Y to steal her property as well, it
is not robbery, but assault and theft.

Read and study the following court case

S v Yolelo 1981 (1) SA 1002 (A)

S v Yolelo 1981 (1) SA 1002 (A)

Facts of the case

Legal question for the court to answer

247
Decision of the court

14.3.2.3 Unlawfulness
Grounds for justification:
Unlawfulness may be excluded by the general grounds of justification such as
necessity.

“Consent” by a robbed person to hand over the property to X rather than to be held up
does not dispose of the unlawfulness of X’s conduct.

14.3.2.4 Intention
In a case of robbery, the State needs to prove that X had the intention (in any form) to
apply violence to the person of Y, in order to subject Y to the handing over of her
property. Needless to say, X should also have knowledge of the unlawfulness of his
conduct.

14.4 RECEIVING STOLEN PROPERTY

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 452-454; 458
OR
Snyman: 2014 (512-514; 519-521).

14.4.1 Definition

248
X commits the crime of receiving stolen property when he unlawfully and intentionally
receives into his possession property knowing, at the time that he does so, that it has
been stolen.

14.4.2 Elements of the crime

14.4.2.1 Conduct: Receiving stolen property

X must receive stolen property. Mere negotiation between the thief and X or X’s
physical inspection of the stolen goods does not qualify as “receiving”. The property
must be capable of being stolen, that is, movable corporeal property available in
commerce (in commercium). Property is stolen if it is obtained by theft, robbery,
housebreaking with intent to steal and theft or theft by false pretences. However, if X
receives the proceeds of the sale of stolen property, he is not committing this crime.

14.4.2.2 Unlawfulness
If X receives the property with the consent of the owner or with the intention of handing
it over to the police or the owner, his conduct is not unlawful.

14.4.2.3 Intention
X must know that he is receiving goods and know that the goods are stolen when he
receives it. Dolus eventualis suffices, in other words, it is sufficient if X is aware of the
possibility that the goods may be stolen and still reconcile himself with the possibility
by receiving the goods.

14.4.3 STATUTORY RECEIVING (SECTION 37 OF ACT 62 OF 1955)

Reference: Snyman 2020: 458 OR Snyman 2014: 519

.
*Make your own summary of statutory receiving en compare to
common law receiving of stolen property, discussed above:

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14.5 FRAUD

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 461-469
OR
Snyman: 2014 (523-532).

Court cases:
S v Myeza 1985 (4) SA 30 (T)
R v Dyonta 1935 AD 52
S v Mngqibisa 2008 (1) SACR 92 (SCA)

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

14.5.2 Elements of the crime

14.5.2.1 Conduct

 Misrepresentation

250
A misrepresentation (distortion of the truth) is a deception by means of a falsehood. X
must represent to Y that a fact exists which does not exist. Misrepresentation may be
in the form of spoken or written words or even mere conduct (nod of the head).

The misrepresentation may be either express or implied. When Y steals Y’s credit card
and uses it to buy clothes for himself in a shop, X misrepresents implicitly to the shop
assistant that he is the owner of the credit card, while he is not.

The misrepresentation may be either a positive act (commission) or an omission An

omission by X to disclose a fact may constitute a misrepresentation if there was a legal
duty on X to disclose the fact. Legislation may create a legal duty: ratepayers are
obliged by statute to supply certain facts concerning their income to the South African
Revenue Service.

It is possible to make a misrepresentation to another person or even to a computer or

a machine such as a parking meter. It is sufficient if X unlawfully uses Y’s credit card
to draw money for himself at an ATM. X is then falsely and impliedly representing to
the bank’s electronic system that Y is withdrawing money, whereas X knows that he
is withdrawing money without Y’s consent.

Read and study the following court case

S v Myeza 1985 (4) SA 30 (T)

S v Myeza 1985 (4) SA 30 (T)

Facts of the case

Legal question for the court to answer

Decision of the court

251
 Prejudice of another
o Proprietary or non-proprietory prejudice
Fraud usually results in financial or proprietary prejudice (real or potential) to
another. However, non-proprietary prejudice also suffices, such as producing a
false licence to a traffic officer or writing an examination on behalf of another
student and thereby misrepresenting to the examiners the student’s identity.
Real or potential prejudice is sufficient.

o Potential prejudice entails the following:

 Potential prejudice means that the misrepresentation, looked at objectively,
involve a risk of prejudice to another, or is likely to prejudice. There should
be a possibility of prejudice: it is required that another can be, not will be,
prejudiced.
 The possibility of prejudice must be a reasonable possibility, not a remote
possibility. The objective test is whether a reasonable person could, in the
normal course of events, have suffered prejudice.
 The prejudice need not be suffered by Y, the representee, but prejudice to a
third party, to the state or the community also suffices.
 The conduct element is completed the moment X makes the
misrepresentation and it comes to the attention of Y. It is irrelevant whether
X’s fraudulent scheme is successful or not, or whether Y, the representee,
was misled by the misrepresentation or not.

o Causation is not required

Telling a lie does not always constitute fraud. It is required that the telling of a
lie must bring about some harm or the risk of harm ( real or potential prejudice)
to another. However, a causal link between the misrepresentation and the
prejudice is not required, because potential prejudice suffices even if no real
prejudice occurred.

252
 “The law looks at the matter from the point of view of the deceiver. If
he intended to deceive, it is immaterial whether the person to be
deceived is actually deceived or whether his prejudice is only potential”.
(R v Dyonta 1935 Ad 52).

Read and study the following court case

R v Dyonta 1935 AD 52

R v Dyonta 1935 AD 52
Facts of the case

Legal question for the court to answer

Decision of the court

14.5.2.2 Unlawfulness
Grounds for justification such as force (necessity), consent or obeying of orders may
in specific circumstances serve as grounds of justification.

14.5.2.3 Intent
Intention in the form of dolus eventualis suffices, but negligence is not a sufficient form
of fault. X must know or foresee the possibility that his representation is false and that
it can prejudice another person or institution. It does not suffice that X is aware of the
falseness of his misrepresentation, but he does not intend to prejudice. X must have
the intention to defraud Y, which means that X must intend to induce Y to take action
prejudicial to herself as a result of the misrepresentation.

253
X’s motive is immaterial and no intention to gain an advantage is required.

Read and study the following court case

S v Mngqibisa 2008 (1) SACR 92 (SCA)

S v Mngqibisa 2008 (1) SACR 92 (SCA)

Facts of the case

Legal question for the court to answer

Decision of the court

14.5.3 Attempted fraud

Attempted fraud is committed when the misrepresentation is made, but it is not
communicated to the representee because, for example, the letter or e-mail in which
it is made is lost or intercepted.

14.6 FORGERY AND UTTERING

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 469-471

254
OR
Snyman: 2014 (532-535).

14.6.1 Definitions
Forgery and uttering are merely species of fraud

14.6.1.1 Definition of forgery

Forgery consists in unlawfully and intentionally making a false document to the actual
or potential prejudice of another.

 Conduct: falsification of a document

In forgery the misrepresentation is made by falsifying a document, such as a driver’s
licence, receipt or certificate of educational qualification. Besides this, all requirements
for the crime of fraud must be present.
A document is not falsified or forged when it merely contains a lie or untrue statement.
A document is false when it purports to be something other than it is, for example:
- a medical certificate purports to be signed by a doctor while in fact, it is signed by
somebody else or
- a bank statement which contains information which it did not originally contain
because the figures and dates have been changed.
A document can be falsified by the erasure, addition or alteration of particulars on the
document.

Noteworthy is the following difference between fraud and forgery: fraud is completed
only when the misrepresentation comes to the attention of the representee, but forgery
is completed the moment the document is falsified. When the falsified document is
then presented to another person, another separate crime is committed, namely
uttering of the document.

14.6.1.2 Definition of uttering

Uttering consists in unlawfully and intentionally passing off a forged document to the
actual or potential prejudice of another.

255
The phrase “passing off” of a document means that that the falsified document is
communicated to another person. If the document does not reach the person to whom
it is addressed, attempted uttering is committed.

14.6.2 Elements of the crime

See Snyman 2020: 469-471 OR Snyman 2014: 532-535 for the elements of these
crimes.

14.7 EXTORTION

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 369-371
OR
Snyman: 2014 (417-419).

Court cases:
S v J 1980 (4) SA 113 (E)
R v N 1955 (2) SA 647 (T)

14.7.1 Definition
Extortion is the unlawful and intentional obtainment of a patrimonial or non-patrimonial
advantage from another by subjecting the latter to pressure which induces him to hand
over the advantage.

Extortion may overlap with some other crimes. Extortion can overlap with specific
cases of rape (where “consent” is extorted). When the threat is one of bodily harm
against Y, extortion and robbery overlap.

 Difference between extortion and robbery

In the case of Ex parte Minister of Justice: In re R v Gesa 1959 (1) SA 234 (A), the
differences between extortion and robbery are set out as follows:

256
 i. In robbery (and theft) the advantage that is obtained is restricted to a
corporeal movable thing. In extortion, the advantage can also consist of
services or other actions by the person who is extorted.
ii. In robbery, the advantage must be surrendered immediately after the
threat, whilst in extortion there may be a long period between extortion
and the handing over of the advantage.
iii. In robbery, the pressure lies in physical violence whilst in extortion
pressure takes the form of blackmail with defamation, inconvenience,
damage to property, dismissal, prosecution, etc.

14.7.2 Elements of the crime

14.7.2.1 Conduct

 Applying pressure
The conduct element consists of obtaining an advantage by exercising some form of
pressure on Y to which the latter submits. The pressure is a threat or intimidation that
harm will occur to Y or even to a third party. The threat can be one of bodily harm
(violence) or of defamation, dismissal, arrest or prosecution. The pressure exercised
by X can be either express or tacit.
“All that is necessary to constitute the crime of extortion is that there should be
illegitimate pressure exercised which causes the victim to part with money or
other things of value which is not due.” (S v Mntonintshi 1970 (2) SA 443 (EC)).

 Obtaining of advantage
The conduct element is not completed until X has obtained the advantage. If X is
arrested after the threat or intimidation of Y, but before X obtained the advantage, X
committed attempted extortion only.

 Patrimonial or non-patrimonial advantage

257
In 1989 the Appeal Court32 ruled that the advantage in extortion must be patrimonial
(financial/monetary/pecuniary). This narrowing of the crime of extortion was not in the
public interest. Therefore, the legislator intervened and expanded the scope of the
common-law crime of extortion so that the exercise of unlawful pressure aimed at
obtaining a non-patrimonial advantage also constitutes extortion.33 A non-patrimonial
(non-pecuniary) advantage may be sexual gratification or some service rendered by
Y.

Read and study the following court case

S v J 1980 (4) SA 113 (E)

S v J 1980 (4) SA 113 (E)

Facts of the case

Legal question for the court to answer

Decision of the court

(The original trial court case of S v J 1980(4) SA 113 E is prescribe because it reflects
the current legal position (after the implementation of section 1of the General Law
Amendment Act 139 of 1992.)

32 Ex parte the Minister of Justice; In re S v J and S v Von Molendorff 1989 (4) SA 1028 (A).

33 Section 1 of the General Law Amendment Act 139 of 1992.

258
14.7.2.2 Causal link between applied pressure and obtaining of
advantage
There must be a causal link between the pressure (threat or intimidation) applied by X
and X’s acquisition of the advantage. If there is no such causation, X can still be found
guilty of attempted extortion.

14.7.2.3 Unlawfulness
The exercise of pressure must be unlawful. To determine this, one must look at the
threat and the aim for which it was used. Sometimes the threat is in itself unlawful (e.g.
assault) but sometimes it is lawful (e.g. arrest by a police officer). However, if the police
officer tells an arrested thief that she will be prosecuted, unless she pays the officer
some money, the threat is then unlawful.

Read and study the following court case

R v N 1955 (2) SA 647 (T)

R v N 1955 (2) SA 647 (T)

Facts of the case

Legal question for the court to answer

Decision of the court

14.7.2.4 Intent
Intention must be proven. It is required that X intend:
a) to apply pressure to cause Y to submit so that X obtain some advantage that
he is not entitled to;

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 b) while knowing that such pressure is illegal.

X’s motive is irrelevant.

14.8 MALICIOUS INJURY TO PROPERTY

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 475-478
OR
Snyman: 2014 (539-541).

Court cases:
R v Bowden 1957 (3) SA 148 (T)
R v Malamu Nkatlapaan 1918 TPD 424

14.8.1 Definition
Malicious injury to property is the unlawful and intentional damaging of:
a) property belonging to another; or
b) his own insured property, intending to claim the value of the property from the
insurer.

14.8.2 Elements of the crime

14.8.2.1 Conduct

 Damage
Damage includes the total or partial destruction of property. It is also regarded as
damaging property when the property has been tampered with in such a way that it
will cost the owner money or at least some effort or labour to restore it to its original
form

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  The property
The damaged property must be corporeal and may be either movable or immovable.
The crime cannot be committed in respect of property that belongs to nobody (res
nullius). In principle, the crime cannot be committed in respect of one’s own property
because the owner is free to do with his property what he likes.

The Appeal Court erroneously ruled in R v Mavros 1921 AD 19 that when X sets fire
to his own insured property to claim its value from the insurance company he commits
arson, which is a species of malicious injury to property. The decision is criticised
because if X falsely represents to an insurance company that another person
destroyed his property, he commits fraud. However, Snyman argues that the courts
will not easily diverge from the Mavros ruling, since it is an Appeal Court decision.

Read and study the following court case

R v Bowden 1957 (3) SA 148 (T)

R v Bowden 1957 (3) SA 148 (T)

Facts of the case

Legal question for the court to answer

Decision of the court

14.8.2.2 Unlawfulness
The unlawful injury to property may be justified by the usual grounds for justification,
such as emergency (necessity), de minimus non curat lex, official capacity or consent.

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14.8.2.3 Intent
Any form of intent is a sufficient form of fault. Negligent injury to property, however, is
not a crime – although a delictual claim on the basis thereof can be lodged. When the
accused is wrongly under the impression that he is damaging his own property, while
it is someone else’s property, there is no awareness of unlawfulness and therefore he
lacks the necessary intention to commit the crime.

Read and study the following court case

R v Malamu Nkatlapaan 1918 TPD 424

R v Malamu Nkatlapaan 1918 TPD 424

Facts of the case

Legal question for the court to answer

Decision of the court

14.10 ARSON

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 478-479
OR

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Snyman: 2014 (542).

Court cases:
R v Mavros 1921 AD 19
S v Dalindyebo 2016 (1) SACR 329 (SCA)

14.9.1 Definition
Arson is the unlawful and intentional setting of fire to
a) immovable property belonging to another; or
b) his own immovable insured property, in order to claim the value of the property
from the insurer.

Arson is a specific form of malicious injury to property.

14.9.2 Elements of the crime

14.9.2.1 Conduct

The common-law crime of arson can only be committed when setting fire to
immovable property, such as a building, house or factory.

As in malicious injury to property, one cannot in principle commit arson in respect of

one’s own property. However, the Appellate Division in S v Mavros 121 AD 19 ruled
that X commits arson if he sets fire to his own insured property in order to claim its
value from the insurer. As mentioned above under malicious injury to property, the
decision is criticised because such conduct constitutes the crime of fraud.

Read and study the following court case

R v Mavros 1921 AD 19

R v Mavros 1921 AD 19
Facts of the case

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Legal question for the court to answer

Decision of the court

Read and study the following court case

S v Dalindyebo 2016 (1) SACR 329 (SCA)

S v Dalindyebo 2016 (1) SACR 329 (SCA)

Facts of the case

Legal question for the court to answer

Decision of the court

14.9.2.2 Unlawfulness
The unlawful setting of fire to immovable property may be justified by the usual
grounds for justification, such as emergency (necessity).

14.9.2.3 Intent
An intention to damage immovable property by setting fire to it and thereby causing
patrimonial harm to another, is required.

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14.10 HOUSEBREAKING WITH INTENT TO COMMIT A CRIME

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Textbook:
Snyman 2020: 479-486
OR
Snyman: 2014 (543-550).

Court cases:
S v Small 2005 (2) SACR 300 (C)
S v Mavela 2008 (2) SACR 608 (Ck)
S v Temmers 1994 (1) SACR 357 (C)

14.10.1 Definition
Housebreaking with intent to commit a crime is the unlawful and intentional breaking
into and entering a building or structure, with the intention to commit a crime.

Housebreaking in itself does not constitute a crime: it must take place with the intent
to commit a crime.

14.10.2 Elements of the crime

14.10.2.1 Conduct

The conduct element consists of two components, namely first breaking into the
structure and then entering it.

 Breaking
Breaking into the structure consists of:
a) the removal or displacement;
b) of any obstacle that bars entry to the structure; and
c) which obstacle forms part of the structure.

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The displacement of the obstacle need not inflict damage to the structure. Pushing
open a closed or partially closed door or window suffices, but entering through a widely
open door or window does not. The breaking must be into the building and not breaking
out of it. X may also use another person as an instrument to open the door from the
inside and let X inside.

The obstacle which is removed must form part of the structure, but need not be a
permanent attachment to the structure. The shifting of blinds fixed in front of an open
window qualifies as a “breaking in”, but not the mere moving of a curtain since it is not
regarded as an “obstruction”.

Read and study the following court case

S v Small 2005 (2) SACR 300 (C)

S v Small 2005 (2) SACR 300 (C)

Facts of the case

Legal question for the court to answer

Decision of the court

 Entering
Conduct qualifying as “breaking in” without entering into the building does not
constitute the crime, but may amount to an attempt to commit the crime. The entry is
complete when X inserted any part of his body or even an instrument (stick or rake)
he is using for that purpose, into the opening.

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Read and study the following court case
S v Mavela 2008 (2) SACR 608 (Ck)

S v Mavela 2008 (2) SACR 608 (Ck)

Facts of the case

Legal question for the court to answer

Decision of the court

 Building or structure
The place that is broken into must be a building or something similar that is ordinarily
used for human habitation or the storage of goods. The material of which the structure
is made is of little importance and may vary from a canvas tent to a brick or concrete
structure.

The criterion to determine whether a structure qualifies as one in respect of which

housebreaking can be committed, is vague. The courts’ classification of structures
varies. De Wet and Swanepoel state that if a structure is used for human habitation, it
can be movable or immovable, but if the structure is used for the storage of goods, it
must be immovable. This criterion was rejected in S v Temmers 1994 (1) SACR 357
(C). The court held that housebreaking requires that a structure for the storing of goods
must be a structure “in which goods are kept or stored to safeguard them from the
elements or misappropriation, or placed for functional reasons”. However, a structure

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in which goods “are stored for ease of storage or conveyance” does not qualify. This
criterion is criticised for its vagueness.

The normal use of a caravan is for human habitation and therefore a caravan qualifies
as a structure in respect of which housebreaking can be committed. In Temmers the
court held that a caravan merely used for storage of goods may also qualify as a
structure when the caravan was used as a shop, not moved around and positioned in
one particular place “with a relative degree of permanency”.

It has been decided that an office within a building can be broken into, as well as a
cabin on a ship or a glass showcase cemented on the floor in front of a shop, but not
a built-in cupboard in a house. The following structures do not qualify as structures in
respect of which the crime can be committed:
 Car;
 Railway truck used for conveying goods;
 Fowl-run made of tubes and wire-netting;
 Enclosed backyard.

Read and study the following court case

S v Temmers 1994 (1) SACR 357 (C)

S v Temmers 1994 (1) SACR 357 (C)

Facts of the case

Legal question for the court to answer

Decision of the court

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14.10.2.2 Unlawfulness
The breaking into and entering of the structure must be unlawful. Grounds for
justification such as official capacity (e.g. a search warrant), emergency (necessity) or
consent are valid defences and can exclude unlawfulness. Where a person is entitled
to entry to a building, but only at certain times, e.g. during the day, then he/she can be
found guilty of housebreaking with the intent to commit a crime if he/she enters the
building unlawfully at night.

14.10.2.3 Intent
X must have the intention to (a) unlawfully break into and enter a structure and
(b) intend to commit a crime inside the structure, while knowing that his conduct is
unlawful.

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 LEARNING OUTCOMES: UNIT 14

After completing Learning Unit 14, students will be able to give a definition for and
analyse the elements of the following crimes that can be committed against property:

• Theft;
• Robbery;
• Receiving stolen property/statutory receiving;
• Fraud;
• Extortion;
• Malicious injury to property
• Arson; and
• Housebreaking.

Students will also be able to identify the different crimes against property in a given
set of facts.

*Example of assessment questions that will be discussed during

tutorial sessions:

o Terry, the traffic officer, rigs up a tent for the day where he and his colleague is
on duty. Unlucky is the first driver that exceeds the speed limit on the specific
day and is furious when he is stopped by Terry. When Terry approaches him,
Unlucky uses all the swear words that he knows to insult Terry in front of his
wife, terrible twins and mother-in-law sitting in the back seat of the car. This
also happens in the presence of Terry’s colleague.

Terry hands over a fine to Unlucky. When he walks away, Unlucky gets out of
his car and approaches the tent. He pulls away the door of the tent and enters
it. Inside, Unlucky finds an expensive watch and half a bottle of brandy that he
appropriates for himself. Just before he leaves the tent, het sets fire to the tent.

By the time Terry realises that his tent is on fire, Unlucky and his family is long
gone. Inside his car, Unlucky spoils his wife with the stolen watch. His wife
suspects that the watch might be stolen but accepts it anyway. He then also
takes his own watch that he received as a gift for his birthday and offers it for
sale to his mother-in-law. Unlucky believes that the watch is worth only R200
but informs his mother-in-law that it is worth R2 000. Unbeknown to Unlucky,
the watch is worth more than R2 000. His mother-in-law buys the watch for
R2000.

The next day Unlucky phones Terry and informs him that he will tell Terry’s
boss about the bottle of brandy that he found inside the tent (during working
hours) if Terry attempts to lay any charges against him (Unlucky). Out of fear

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 of losing his job, Terry obeys Unlucky’s instruction and do not open any charges
against him.

Having read the above, answer the following questions:

1.1 Indicate whether Unlucky can be successfully prosecuted of the following crimes
or not. Motivate your answers and only where requested, refer to and discuss the
applicable case law:

 Housebreaking with the intent to commit theft?

 Arson?
 Crimen Iniuria? (Also refer to and discuss the applicable case law).

1.2 Only state the crime that Unlucky committed, if any, with regards to the following:
 The selling of the watch to his mother-in-law.
 The phone call that he made to Terry.

1.3 State and define the common law crime that was committed by Unlucky’s wife.

Notes:
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 LEARNING UNIT 15
DRAFTING OF A CHARGE SHEET

Drafting a charge sheet forms part of the state prosecutor’s daily responsibilities. The
purpose of Unit 15 is to familiarise students with the drafting of a charge sheet. Having
discussed all the elements of crime as well as the specific crimes that can be
committed against the person, state, community and property, the focus of this Unit
will be the drafting of a charge sheet (that is based on a practical case scenario).

VERY IMPORTANT

It is expected of you TO STUDY the following material:

Guide: Unit 15

15.1 Introduction
When preparing for a criminal trial, it is of paramount importance to study the charge
sheet, since it is the point of departure in the trial. The charge sheet contains the crime
with which the accused is charged, as well as the time, place and circumstances of
the crime. Further details on charge sheets are dealt with in the module on the Law of
Criminal Procedure. Integrate your knowledge of criminal procedure with the principles
of Criminal Law when you draw up or analyse a charge sheet in this module.

15.2 Guidelines for drawing up charge sheets:

Common Law crimes

 Begin the charge by fully naming the crime.
 Formulate the charge.

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  The charge must cover all the elements of the crime. Therefore, know the
definition of the crime, because it contains all the elements of the crime;
 Indicate the time when and the place where the offence was committed;
 If applicable, give the full name of the person against whom the offence was
committed;
 Give a clear description of the property, if the offence was committed in regard
to particular property.

Example of a charge sheet for a Common Law crime:

THE ANNEXURE TO THE CHARGE SHEET

Case no. 199/2021

THE STATE versus 1. …………….. (Troubles Taylor)

2. .…………………….(Lerato Le Roux)
(hereafter referred to as the accused)

That the said accused is/are guilty of the crime of MURDER.

In that on or about 1 June 2021 and

at or near 5 Main Road, Cape Town,
in the district of Cape Town,
the said accused unlawfully and intentionally
caused the death of Unlucky Botha, an adult male.

Statutory offences

 Begin the charge with the full citation of the statutory enactment and the number
of the section that creates the offence.
 Also name all the other applicable sections of the Act pertaining to the specific
case, e.g.
 definitions (usually in section 1 of an Act);
 sections that create presumptions;

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  penalty clause.
 Formulate the offence by following the wording of the provision that creates the
offence.
 Indicate the time when and the place where the offence was committed;
 If applicable, give the full name of the person against whom the offence was
committed;
 Give a clear description of the property, if the offence was committed in
regard to particular property.

Example of a charge sheet for a statutory offence:

THE ANNEXURE TO THE CHARGE SHEET

Case no. 200/2021

THE STATE versus 1. …………. (Troubles Taylor)

2. .………………
(hereafter referred to as the accused)

WITCH IDENTIFICATION

That the said accused is guilty of a contravention of section 1 (a) and read with
sections 2 (presumption) and 1 (i);(ii) (penalty clause) of the Witchcraft Suppression
Act 3 of 1957.

In that on or about 1 June 2021 and

at or near 4 Church Street, Cape Town,
in the district of Cape Town,
the said accused did unlawfully and intentionally name Unlucky Botha as wizard to
Kele Lebohang.

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 LEARNING OUTCOMES: UNIT 15

After completing Unit 15, students will be able to:

• Draft a proper charge sheet (based on a practical case scenario).

*Example of assessment questions that will be discussed during

tutorial sessions:

o Draw up a charge sheet which sets out the correct charge against .....

(based on the given set of facts provided in the test / assignment)

Follow the format of the examples of charge sheets discussed in the guide. Ensure
that all the elements of an offence that the state must prove to secure a conviction,
are included in the charge sheet. You are thus expected to apply your theoretical
knowledge of Criminal Law in drawing up a charge sheet for one of the offences dealt
with in this module (practical application).

Notes:
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The end, or … only the beginning of your career in Criminal Law.

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