SCHOOL OF LAW

DEPARTMENT OF CRIMINAL AND PROCEDURAL LAW

ASSIGNMENT 03

Name: : NDHLOVU N.

Student Number : 18015809

Module : CRIMINAL LAW

Module Code : CRL2541

Lecturer : Adv. SJ RANGOATO

Submission Date : 27 AUGUST 2020

QUESTION 1

 Definitions; Unlawful act is an act that has been prohibited by the law1 and
unlawful omission is a failure to act; Common Law will constitute an actus reus and
give rise to liability only when law imposes duty to act and defendant is in breach of
duty2.
 No one is obliged to act positively to prevent harm from coming to another even if he
can easily and ought morally to do so3. The rule is based on recognition that;

(a) The imposition of such an obligation must inevitably represent a serious invasion of
personal liberty and freedom of action, (b) the law does not, as general rule, seek to
penalize a person for simply doing nothing, (c) and, it is not a proper role of the law to
enforce pure morality4.

 However there are exceptions to general rule; Situations in which there is an

obligation to act and where a person’s failure to do so will accordingly be
regarded as unlawful. An the exceptions are as follows;
1. The general test for liability for omissions
 The circumstances of the case must be of such a nature that the omission not only
excites moral indignation, but also that the legal convictions of the community
demand that it ought to be regarded as unlawful5.
 Punishment shall be inflected when an act is committed which the law made clear to
be punishable or which may appear to be deserving of punishment according to
fundamental idea of a penal law and according to healthy popular feeling6.

2. Crystallized categories of liability for omissions: Some established categories are;

 The accused was in control of potentially dangerous property,

1
Oxford criminal law in South Africa Second Edition (criminal justice).
2
USLegal.com, July 31, 2018.
3
Minister Van Polisie v Ewels 1975 (3) SA 590 (A).
4
Above 1.
5
Above 3.
6
Burchell South African Criminal Law and Procedure Vol I 115-116
 The accused was under a statutory duty to perform the act in question, etc7.
 Under statutory duty; a particular statute may impose a legal duty on a person to act
positively in certain circumstances for the purpose of preventing or limiting harm to
another person8.

3. Under additional requirements we also have; Means and opportunity

 A person can only be held liable for harm that he had the power to prevent had he
chosen to do so. Thus, the state must prove that the accused not only had the
necessary means, ability and resources to prevent the harm in question, and also
that he had sufficient time and opportunity to do so9. In the case of S v Barnes
supra, The second accused who did nothing to prevent further harm to the victim
was found guilty of being an accessory after the fact to culpable homicide and
accused of shielding Barnes as a result of not reporting him to police10.
 Therefore in this case of Mr Tatana; He is experienced in swimming and he had all
means, opportunity and sufficient time to save the 11 year-old child from drowning
and he could be convicted of culpable homicide due to act of omission. However, the
state may be unable to prove that if he acted towards helping the child, would have
not died. Also given in the case of S v Van As en ‘n ander and S v Barnes supra11.
Mr Tatana is obliged to help, under protective relationships; when one person
deprives another of the ability to protect and care for themselves, the former attracts
a duty of protection and care towards the latter.

QUESTION 2

7
Above 1 and Burchell Principles of Criminal Law 77, Snyman CR Criminal Law 6 th edition 92014) P.59-60.
8
Burchell Principles of Criminal Law 194-195.
9
Above 1.
10
S v Barnes supra.
11
Above 1.
Definitions: Criminal liability is a responsibility for any illegal behavior that causes harm
or damage to someone or something12. Unlawful conduct, is an act that is prohibited by
the law and, fault is a mistake done, in which one could be held liable for it13.

 There are requirements that must invariably be met to satisfy the unlawful conduct;
(a) The conduct performed must be of a human being,
(b) The conduct raised must have been voluntary, and,
(c) Conduct must’ve been defined by law as crime at the time the conduct took place14.
 There are some acts that can be voluntary, called, “voluntary”: even though, there
are some acts that can be voluntary, called “automatism” which is the performance
of actions without conscious thought or intension, and their types are as follows; (a)
Sane automatism, the state must prove that the act was performed voluntarily, and
(b) Insane automatism, report from medical practitioner that proves mental illness
must be provided15.

 Instances where a person may escape criminal liability are;

 Sleepwalking; when one is asleep, don’t lie perfectly still all time, instead, he turn
and move limbs mostly without being conscious of that. Others commit unlawful
acts, but works up remembering nothing, and this is also regarded as sleep disorder.
Actions performed while sleepwalking are involuntary, the general rule states that
they cannot consider it criminal liability16. In the case of R v Dhlamini, Dhlamini was
acquitted after the court found that what he did was just being awaken out of
nightmare and that he was a ting mechanically, without intention, volition or motive 17.

 Blackouts and Amnesia; Blackout is a temporary loss of consciousness and

Amnesia is a loss of memory. It stands to reason that it is impossible for a person to
remember events that occurred during a period when he was unconscious.

12
Cambridge.dictionary.org.
13
Above 23.
14
Above 1.
15
Above 1.
16
Above 1.
17
R v Dhlamini 121.
 The accused may genuinely have no subsequent recollection of voluntary act
giving rise to criminal responsibility18. And, by contrast, in S v Evans, the accused
satisfied the court that he had suffered a genuine blackout and the Court held that
this was valid defence19.
 Duress; is a compulsion by threat or force, coercion, or constraint20. While duress
is not a justification for committing a crime, it can serve as an excuse when a
defendant committed a crime because they were facing threat or use of physical
force. An appeal was granted to the accused due to that the accused was under a
threat and was physically tortured and new trial was set to take place 21.

Question 3

1) Private defence; is a self-defence, defence of other persons and defence of

property. Lawful in private defence when in response to an unlawful imminence 22
and the defence is allowed only when it is immediately necessary against threatened
violence23.
2) Necessity; may apply when an individual commits a criminal act during an
emergency situation in order to prevent a greater harm from happening24.
3) Impossibility; is the appropriate defence in cases where the law places a person
under a legal duty to perform a positive act and the person is unable to comply with
this duty25.
4) Obedience to order; it often applies to members of military and paramilitary forces,
and sometime to an extent to police officers and members of protection services 26.
5) Consent; this may operate to defeat an element of the actus reus of a crime and
thus render the action lawful as oppose to unlawful act 27.

18
S v Henry 1999 (1) SACR 13 (SCA) 20G.
19
S v Evans 1985 (2) SA 865 (Zs).
20
Law.dictionary.com.
21
R v Hibbert [1995] 2 S.C.R. 973.
22
Above 1.
23
Www.awctopus.com_academike.
24
Www.justia.com.
25
Above 1 and Burchell South African Criminal Law and Procedure Vol I 170.
26
S v Mostert 2006 (1) SACR 560 (N).
27
Www.e-lawresources.co.uk-defenceofcensent.
 BIBLIOGRAPHY

Burchell South African Criminal Law and Procedure Vol I 170

Burchell Principles of Criminal Law 194-195
Burchell Principles of Criminal Law 77, Snyman CR Criminal Law 6th edition 92014)
P.59-60
Burchell South African Criminal Law and Procedure Vol I 115-116
Cambridge.dictionary.org

Law.dictionary.com
Minister Van Polisie v Ewels 1975 (3) SA 590 (A)
Oxford criminal law in South Africa Second Edition (criminal justice)
R v Dhlamini 121

R v Hibbert [1995] 2 S.C.R. 973

S v Barnes supra
S v Evans 1985 (2) SA 865 (Zs)
S v Henry 1999 (1) SACR 13 (SCA) 20G
S v Mostert 2006 (1) SACR 560 (N)
Www.USLegal.com
Www.awctopus.com_academike
Www.e-lawresources.co.uk-defenceofcensent
Www.justia.com