LEARNING UNIT 3:

CRIMES AGAINST
LIFE AND BODILY
INTEGRITY
 SPECIFIC OFFENCES FOR LEARNING
UNIT 3
◼ CRIMES AGAINST LIFE AND BODILY INTEGRITY

◼ 1. MURDER AND PUNISHMENT

◼ 2. CULPABLE HOMICIDE
◼ 3. ASSAULT IN VARIOUS FORMS
◼ 4. SEXUAL ASSAULT
◼ 5. RAPE
MURDER (Snyman – p. 437 - 441.)
Examples: *Planned
*Alcohol
*Mercy
Statistics: Highest in the world

Death penalty: 1917 – Compulsory for murder, except: younger than 16 years;
woman murder just-born

Current punishment: Life long imprisonment (planned, rape, robbery, witness,

officer, goal) (minimum: 15 years)
 1) MURDER

Def: MURDER IS THE UNLAWFUL &

INTENTIONAL CAUSING OF THE
DEATH OF ANOTHER HUMAN
BEING.
Elements:
 UNLAWFULNESS
- If you have a valid defence – like self-defence,
emergency and statutory authorization – then you
cannot be guilty of murder.

- Consent by the deceased is no valid defence.

(Euthanasia is also not a defence)
(S v Hartman)
(S v Nkwanyana)
 INTENTION
- The state must prove beyond reasonable doubt
that the criminal meant to cause the unlawful
death.
- Any type of dolus sufficient.

Determined subjectively
Not negligence → culpable homicide
 CAUSING THE DEATH
- Causality theories applicable.

 VICTIM – ANOTHER LIVING HUMAN BEING

- Must be another human being – (S v Mshumpa)
- Are there any exclusions?

*Our courts have decided that suicide and attempted

suicide are not crimes. (Grotjohn)
 PUNISHMENT FOR MURDER
◼ DEATH PENALTY (S v Makwanyane).
◼ Criminal Law Amendment Act 105 / 1997.
◼ Content of Section 51 of the Act:
◼ 8 circumstances where imprisonment for life must
sometimes be imposed. Section 51 (1) is applicable and
all 8 circumstances are as per page 440 of Snyman.
 2) CULPABLE HOMICIDE
Def: IS THE UNLAWFUL AND NEGLIGENT
CAUSING OF THE DEATH OF
ANOTHER HUMAN BEING.

 ELEMENTS
1) Unlawful (no valid defence), killing (causation) of
another human being (not yourself).
(Same as in the case of murder)
2) Negligence – the only difference between murder
and culpable homicide.
NEGLIGENCE:

 Reasonable person test. (Objective test)

 Whether the reasonable person in the same

circumstances would have foreseen the possibility
that death may result from that conduct.
Whether the reasonable person would have taken
steps to guard against such a possibility.
Whether the conduct of the perpetrator deviated
from what the reasonable person would have done in
the same circumstances.
 Reasonable expert test. (Doctors)
1) Versari doctrine rejected (examples) (unlawful conduct =
guilty)

2) Partial excuse theory also rejected – examples (exceeding

the boundaries of self-defence)

IMPORTANT:
• There is no such thing as attempted
culpable homicide.
You cannot attempt to be negligent.
 3) ASSAULT
There are three different forms of assault:

 COMMON ASSAULT

 ASSAULT WITH THE Type of injury

Place (finger/heart) J88
INTENT TO DO GRIEVOUS
Weapon
BODILY HARM Violence

 SEXUAL ASSAULT – Assault with indecent nature

(sexual violation)
Def: THE UNLAWFUL AND INTENTIONAL
DIRECT OR INDIRECT APPLICATION OF
FORCE TO THE BODY OF ANOTHER
(Impairment of bodily integrity
of another)
OR

THE UNLAWFUL AND

INTENTIONAL INSPIRING
OF A BELIEF IN ANOTHER
PERSON THAT FORCE
APPLIED TO HIM IS
IMMEDIATELY
THREATENING.
ELEMENTS:

1) UNLAWFULNESS
Usual grounds for justification as a defence:
 Self-defence
 Official authority (police in arresting)
 Consent to harm (when valid?)

Consent – doctor & sport

2) INTENTION
 Any type of dolus sufficient
 There is no such thing as negligent assault (Matle)
 Attempted assault – recognized but limited
3) DIRECT OR INDIRECT APPLICATION
OF FORCE

3.1) DIRECT – Stabbing, hit with clench fist or kick

with shod foot

3.2) INDIRECT – Pull chair; liquor in coffee without

another’s consent; spit in another’s face!
(S v Marx) (S v A) Forcing a person to
drink water.

(Cause injury without touching)

4) INSPIRING A BELIEF
(Waves fists, pretends to stab etc.)
Requirements for inspiring a belief:

Personal violence. The threat of violence must be against the person body. A
threat to damage ones property does not constitute assault in the form of
inspiring a belief.
Must be immediately threatening
Victim must fear the assault against him as person
(Belief that the accused is going to assault him)
Not sufficient if accused believes that he inspires such fear in the victim.
Subjective state of anxiety of the threatened person must thus be tested.
Fear need not be reasonable – tested subjectively.
Words are sufficient to constitute assault.
 ASSAULT WITH THE INTENT TO DO
GRIEVOUS BODILY HARM

Regarded as more serious than Common assault.

Elements the same BUT:
Intention to cause grievous bodily harm!
(J88 – weapon, degree of violence, part of body,
injuries)
• IS IT POSSIBLE TO COMMIT
THE CRIME OF
ATTEMPTED ASSAULT
 RAPE AND ASSOCIATED
ELEMENTS

◼ 1. SEXUAL OFFENCES:
➢ RAPE
➢ SEXUAL ASSAULT
 1) SEXUAL OFFENCES
1) Rape
2) Sexual Assault

OTHER: *Compelled Rape

*Compelled sexual assault
*Bestiality
*Necrophilia
*Sexual offences against children
*Incest
*Prostitution

IN PRACTICE: Problems – false statements, incomplete medical

reports, etc.
 Statutory Sexual Offences
The Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 consolidates all crimes relating
to sexual offences. “The Act repeals the common-law
crime of rape and replaces it with an expanded statutory
crime of rape, which is applicable to all forms of sexual
penetration without consent, irrespective of the gender of
the perpetrator or the victim”.
 RAPE
New definition (Act 32/2007):
Section 3:
Any person who unlawfully and intentionally commits an act of
sexual penetration with a complainant, without the consent of the
complainant, is guilty of the offence of rape.
Parties to the crime:
1) Perpetrator? – both male or female
2) Victim? – both male or female

ELEMENTS:

• UNLAWFULNESS

• INTENTION

• SEXUAL PENETRATION

• WITHOUT CONSENT
 1. UNLAWFULNESS
1) Consent?
2) Necessity
3) Public authority

Question:
1) Can a husband rape his wife? Is that unlawful?

 Sec. 56 of Act 32/2007 – husband and wife can rape each other.
 2) INTENTION
• Must have intention to have act of sexual penetration without
permission
• Was the accused under the impression that he had
permission?
• Girl younger that 12 cannot give consent (according to
common law) – did accused realize that the girl was younger
than 12?
 3) SEXUAL PENETRATION
◼ A – The genital organs of one person into or beyond the genital organs, anus
or mouth of another person;

◼ B – Any other part of the body of one person or, any object, including any
part of the body of an animal, into or beyond the genital organs or anus of
another person; or

◼ C – The genital organs of an animal, into or beyond the mouth of another

person
4) ABSENCE OF CONSENT:
 Consent by way of force = not valid

 Submission is NOT consent

 Consent acquired through fraud is not valid consent in
the following cases:
a) Misrepresentation with regards to identity. (Example
-The victim believed it was her husband with whom
she committed an act of sexual penetration)
b) Misrepresentation with regard to the
nature of the act. (Example - Operation)
(Valid consent were the victim agree to commit act of sexual
penetration, believing that she will be cured from a medical
condition.)
 What about false information given with regard to status
(wealth, etc)? – consent = valid
 Sleeping, unconscious or intoxicated people CANNOT
CONSENT – depending on degree of intoxication. ( Must be
able to appreciate what she/he is consenting to)
 Mentally retarded/deficient – can normally not consent –
depending on degree – see above.

 Younger than 12 – cannot give consent.

 Younger than 16?

 HIV-positive?
 SEXUAL ASSAULT
◼ Indecent assault (a common law offence), was recently replaced by sexual
assault. (Now a statutory offence in terms of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007.
◼ Section 5 of the Act defines Sexual assault:

Any person who unlawfully and intentionally sexually violates a

complainant without his/her consent, is guilty of the crime of sexual
assault.
(or inspiring of a belief of sexual violation)
The meaning of sexual violation = VERY WIDE (See Snyman p361.
 Sexually violates
◼ Causes direct or indirect contact between: genitals and body;
◼ anus and body;
◼ breasts (of female) and body;

genitals, anus, breasts of women and body of an animal;

◼

◼ genitals, anus and breasts of women and any object (including those resembling genitals or anus of
humans and animals)
◼ Contact between mouth and
◼ genitals (male and female)
◼ anus (male and female)
◼ breasts (of female)
◼ mouth
◼ body parts that can be used in act of sexual penetration
◼ Body parts that can be sexually aroused
◼ Body parts that causes sexual arousal
◼

◼ Object resembling genitals/anus of human/animal/ breasts of female;

◼ genitals/anus of animal

◼ Masturbation of another
 SEXUAL VIOLATION
◼ Placing object (resembling genitals of person / animal)
into or beyond mouth
◼ of another.

(Look at words: includes, causes etc.)

THE END