2017 (2) TSAR 443

Boekbesprekings
JONATHAN BURCHELL

PRINCIPLES OF CRIMINAL LAW

Juta & Co Ltd Cape Town 2016; lxxxi and 988 p; ISBN 978-1-485-10972-3; price R850 (soft cover)
The fifth edition of Principles of Criminal Law reflecting decisions of the supreme court of appeal, the
constitutional court and legislation as at the end of 2015 was published relatively short on the heels of
the fourth edition which appeared in October 2013. The need for an updated edition of the leading South
African criminal law textbook is however undisputed in view of several important decisions by the
courts inter alia affecting dolus eventualis, common purpose, robbery with aggravating circumstances,
treason and racketeering as well as amendments to the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (v). The handbook was published simultaneously with the fourth
edition of Burchell’s Cases and Materials on Criminal Law (2016) which runs to 1 410 pages and
contains the most important case law, statutory extracts and commission reports referred to in the
textbook. Both works are available electronically as well as in hard copy and when used in tandem
constitute an easily accessible, practical and wide-ranging source of the South African criminal law
for students.
The book comprises 88 chapters which are subdivided into 3 parts: part 1 contains an introduction
to criminal justice whilst the general principles of criminal liability is addressed in part 2 with a
further subdivision containing section A (overview), section B (unlawful conduct/actus reus), section
C (defences excluding unlawfulness), section D (capacity), section E (fault/mens rea), section F (special
forms of liability), section G (participation in crime) and section H (incomplete or inchoate crimes). Part
3 addresses specific crimes which are categorised in section A (crimes against human life), section B
(crimes against the person), section C (crimes against family life), section D (crimes against property),
section E (crimes against community interests), section F (crimes against sexual morality), section G
(collective welfare), section H (maintenance of the government of state), section I (crimes against the
administration of justice) and section J (organised crime).
A table of statutes, table of cases and a comprehensive index enhance the accessibility of the
handbook for research purposes. The footnotes run per chapter and cross-references to previously cited
authorities are user-friendly.
Since its recognition in the South African law in 1945 the concept of dolus eventualis has followed
a winding road in its development. One aspect that arose in respect of its application pertains to the
question whether even the most remote or unlikely possibility would be taken to have been intended
if it was foreseen? Various courts have taken conflicting positions in this regard and on the one hand
recognised foresight of even a remote possibility as dolus eventualis whilst on the other hand foresight
of a real (or reasonable) possibility was required (364). Burchell correctly indicates that dolus eventualis
should be restricted to a “‘real’, ‘substantial’ or ‘reasonable’ possibility” (364). The clarity provided in
S v Makgatho (2013 2 SACR 13 (SCA) par 9) that foresight of a reasonable possibility is required was
however short-lived following the approach in Director of Public Prosecutions, Gauteng v Pistorius
(2016 2 SA 317 (SCA)) which considered the foresight of a possibility as sufficient (par 26; see Watney
2016 TSAR 769 775).
The importance to tread carefully when common law crimes are repealed and replaced with
statutory offences was illustrated in S v Van Ieperen (2016 JDR 1582 (WCC)). The accused was charged
in a magistrate’s court with contravening s 5(1) of the Sexual Offences Act (sexual assault) and in the
alternative with common assault. Although the facts were sufficient to prove a contravention of s 5(1) of
the act, the court incorrectly acquitted the accused on the charge as it found that the facts did not comply
with the definition of sexual violation in s 1 of the act. The court unfortunately failed to take note of the
content and meaning of the common law offence of indecent assault which was repealed and replaced
by s 5(1) of the act. A proper analysis of indecent assault in this instance could have provided guidance
and perspective in respect of the statutory crime of sexual assault and would in all probability have
led to the conviction of the accused. Burchell also argues that the “common law of indecent assault,
although repealed, will help to give substance to the new offence of sexual assault” (602).
It remains unfortunate that a large part of the history of the South African criminal law which
appeared in the third edition of the handbook has been omitted from the fourth and fifth editions.
From a research point of view the chapter on the historical development is irreplaceable and from a
practical point of view the chances of referring to the contents of the third edition will fade as time goes
by.

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© Juta and Company (Pty) Ltd

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The following minor errors were noted: for violation of dignitas is can be read violation of dignitas
can be (590 line 16); reference to Currie and De Waal The Bill of Rights Handbook (2005) whilst
the 2013 edition is available (646 n 62); for clause s 36) which read clause s 3 which (647 line 9); for
Everyone has the inherent dignity read Everyone has inherent dignity (648 line 24); and for a read as
(656 line 13).
The handbook remains indispensable for any student, practitioner or academic involved with
criminal law.
MURDOCH WATNEY
University of Johannesburg

TSAR 2017 . 2 [ISSN 0257 – 7747]

© Juta and Company (Pty) Ltd