IURI 211-

CRIMINAL LAW: NOTES

INTRODUCTORY TOPICS

Distinguish between material and formal law:

 Material law:
Comprises substantive legal rules setting out the rights and duties of subjects or of
the state.
 Formal law:
Comprises rules setting out the procedure or methods by which the rules of
substantive (or material) law are enforced.

Explain the place of criminal law in the legal system:

 Law is traditionally subdivided into two main categories, namely public law and
private law.
 Criminal law forms part of substantive law.
Criminal procedure is, from the point of view of criminal law, an important
auxiliary branch of the law.
It lays down the procedure by which alleged criminals are brought before court and
tried for their alleged crimes.
Some other important branches of law and related spheres of study which may
influence or which may be influenced by criminal law are the law of delict, the law of
evidence, criminology and penology.
 Law may also be subdivided in another way, namely to distinguish between
substantive law and formal law.
 Material law – substantive legal rules setting out rights and duties of the state or
subjects.
 Formal law – rules setting out the procedure or methods by which the rules of
substantive law are enforced.

Material law(substantive law):

- private law: legal relationship between private individuals – their property (e.g. law
of succession)
- public law: legal relationship -state and private individuals
Legal relationship between states
Criminal law
- Human conduct constitutes crimes and what punishment (e.g. constitutional law)

Formal law:
-law of evidence:
Rules relating to proving facts in issue in criminal- and civil cases
-criminal procedure:
Rules setting out procedures and methods by which law are enforced in criminal cases
(criminals are brought before court and tried)
-civil procedure:
Rules and procedures in civil cases
Explain the difference between crimes and delicts:
 Both can be described as unlawful, blameworthy acts or omissions.
 Delict:
An unlawful, blameworthy act or omission resulting in damage to another and in a
right on the part of the injured party to compensation.
The injured party may if he wishes, institute an action for damages against the
offender.
 Crime:
Unlawful, blameworthy conduct punishable by the state

Crimes Delict
Public interest Private interest
Public law Private law
State prosecutes Private party institutes action
Imposition of sentence Damages /solatium
State decides Injured party decides
Criminal procedure Civil procedure
Possible damages not necessary Damages

NOTE:
Be able to recognize them.
Explain them.
Identify them.
Explain the difference between common law and statutory crimes:
 Common law:
- Codified
- Rules of law not contained in an Act of parliament or of legislation enacted by
some other subordinate legislature
- Such as a provincial legislature
- But which are nevertheless just as binding as any legislation.
- = roman dutch law

 Statutory crimes:

- In considering the sources of our criminal law, legislation must occupy the first
place, since an Act creating a crime or containing a provision relating to the
determination of criminal liability must obviously be applied and receive priority
over the provisions of common law.
- Not yet codified
- SA legislature has been silent on the general principles of criminal law, with
important exception of the rules governing the defence of mental illness, which
were set out in section 77 to 79 of the CPA 51 of 1977.
- The constitution of the republic of south Africa 108 of 1996 towers above all
legislation in importance.
- Chapter 2 contains the bill of rights
- All rules of law must be compatible with the bill of rights.
- If incompatible may be declared null or void.
- This applies also to the rules governing substantive criminal law.

Give a brief outline of the history and sources of the South African law: (NB)

Three main sources of our criminal law:

- Legislation
- Common law
- Case law

 Legislation:
- An Act creating a crime or containing a provision relating to the determination of
criminal liability must obviously be applied and receive priority over the provisions
of common law.
- Unlike criminal procedure, our substantive criminal law has not yet been codified,
and it does not seem that it will be withing the foreseeable future.
- Until now the SA legislature has been silent on the general principles of criminal
law, with the important exception of the rules governing the defence of mental
illness, which were set out in sections 77 to 79 of the CPA 51 of 1977.
- The best-known specific crimes, such as murder, assault and theft, are nowhere
statutorily defined, and their requirements must therefore be sought in our
common law.
- Nevertheless, the SA legislature has created a vast number of statutory crimes.
- The Constitution of the Republic of SA, 1996 towers above all legislation in
importance.
- Chapter 2 of the constitution contains a Bill of Rights.
 - All rules of law, irrespective of whether they are contained in legislation or in
common law, must be compatible with this Bill of Rights a rule is incompatible
with the BOR, it may be declared null and void.
- This also applies to the rules governing substantive criminal law.
- Rights.

 Case law:
- Role of courts in describing and developing our criminal law is vital.
- According to the principle of judicial precedent which is followed in SA, as it is in
England, a lower court is in principle bound to follow the construction placed
upon a point of law by a higher court, and a division of the High Court is in
principle also bound by an earlier interpretation of a point of law by the same
division.
- Today a practitioner who want to find out the common law on a particular point
seldom needs to read the old authorities such a Matthaeus r Voet.
- Almost all the most important rules and principles of common law have, over the
years, been adopted and expounded in our case law.

 Common law:
- The term “common-law” refers to those rules of law not contained in an Act of
parliament or of legislation enacted by some other subordinate legislature, such
as a provincial legislature
- But which are nevertheless just as binding as any legislation.
- The common law of SA is the RDL.
- RDL is a system of law which originated about 2 500 years ago in Rome, spread
during and after the Middle Ages to Western Europe and was received from the
late thirteenth, up to the end of the sixteenth century, in the Netherlands.
- Justinian was the emperor of the Eastern Roman empire from 527 to 565 AD.
- He ordered the scattered texts of RL to be assembled in one compilation.
- This came to be known as the Corpus Iuris Civilis.
- It consisted of four parts, namely:
(a.) Institutions
(b.) Digesta or pandectae
(c.) Codex
(d.) Novellae
- Criminal law was discussed chiefly in D48 and 49 and C 9.
- In later centuries RL as expounded in the Justinian compilation was studied by
jurist in Italy, who were known as the Glossators and Commentators.
- On the course of time the influence of this compilations spread across the whole
of Western Europe.
- Between roughly the thirteenth and the end of the sixteenth centuries roman law
was received also into the Netherlands.
- The system known as the Roman - Dutch law resulted from the reception of
roman law in the Netherlands and the fusion of roman law and local customary
law.
What is the law of precedence? [under case law]
-lower courts are subject to decisions made by highest courts; not in a different province or
countries
Explain the extent of the influence of English Law on the South African criminal
law:

 Although English law did not replace Roman-Dutch law when the Cape became an English
colony, it nevertheless in the course of the nineteenth century exerted a strong influence on
our law in general and criminal law in particular.
 Conduct which was generally speaking punishable under Roman-Dutch law was often
punished under new headings.
 Examples of these new crimes are qualified assaults (assaults committed with the intention of
committing another crime or of inflicting grievious bodily harm)
 Housebreaking with the intention of committing a crime.
 Receiving stolen property knowing it to be stolen.
 Culpable homicide and fraud.
 Act 24 of 1886 of the Cape, also known as the “Native territories’ penal code”, embodied a
criminal code for the area formerly known as the Transkei and adjacent areas
 The influence of English law is especially noticeable in the appellation and subdivision of the
specific crimes
 As well as in the particular requirements for these crimes.
 In the field of the general principles of criminal law the influence of English law is less
noticeable.

Germanic criminal law theory:

 The study of criminal law consists of more than the mere recording of a large number of
isolated rules, examples, sections of statutes, definitions of crimes and court decisions.
 It comprises a systematic arrangement of this material, in other words a search for and
formulation of certain general principles to be applied in solving individual sets of facts.
 The research may be aware of a large number of facts.
 The term “criminal law theory” denotes a method of arranging the numerous subordinate
rules, examples or cases according to a system of general principles.
 Criminal law theory is characterised by the systematic description of the requirements for
criminal liability, that is, the general requirements applicable to all crimes.

The Bill of Rights:

 The coming into operation of the Constitution of the republic of SA 1996 has had a
far-reaching influence on the whole of SA law.
 Chapter 2 of the constitution contains the BoR.
 The provisions of the BoR apply to the executive, judiciary and all organs of state.
 Parliament is no longer sovereign.
 And all rules of law, irrespective of whether they are contained in the statutes or
common law, must be compatible with the rights contained in the BoR.
 The BoR prohibits discrimination on the grounds of, among other thins, gender,
religion or language.
 It also creates a large number of rights, such as, right to life, dignity, freedom and
security of the person, privacy, religion, freedom of expression, political choice,
property, education, language, and a fair trial.
 It also creates a number of so-called “second generation rights”, such as a right to a
clean environment, access to adequate housing, health care services, food, water
and education, but it is noticeable that no provision is made for a right to an
environment as free as possible of crime, or of a right to adequate protection against
crime.
 Section 36 contains an important provision: the rights in the Bill of Rights may be
limited in terms of law of general application, but only to the extent that the
 limitation is reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, and taking into account certain factors set out
in the section.
 The rights are therefore not absolute, but may be restricted.
General description of criminal liability
A person commits a crime if he engages in conduct which accords to the definitional
elements of the crime in question, which is unlawful and culpable.

CRIMINAL LIABILITY:

To determine criminal liability, look at these aspects and in the particular order:

1. Legality (if answer is no there can not be criminal liability)

2. Was there a voluntary act or omission
3. Conduct in compliance with definitional elements
4. Was the conduct unlawful
5. Was the conduct culpable
6. If yes to all 5, and in this order, then the accused is liable

1. Legality: (if legality does not happen process stops )

a. Is the conduct forming the basis of the charge recognized in our law as a crime.
b. General immoral or dangerous do not necessarily constitute criminal liability, the
conduct needs to be recognized by our law as a crime.
2. Act or conduct:
a. Conduct through an act or omission.
b. Mere thoughts are not punishable.
c. Omission only punishable if there is a duty to have acted
d. The act / conduct needed to have been voluntary-acts performed while sleep
walking for example are no punishable as they are involuntary
3. Compliance with definitional elements:
a. Definitional elements refer to the concise description of the conduct prescribed
by law and the circumstances in which they should take place to constitute a
crime.
b. It is how one differentiates between different crimes;
c. Is a description of the conduct i.e. “removal”, “injure”, “sexual intercourse” and
also by whom an act should be performed, i.e. “a license holder”, how it should
be performed “violently”, where it should be performed, on a “public road” and so
forth.
Robbery for example: the violent removal and appropriation of moveable,
corporeal property belonging to another.
4. Unlawful:
a. If the act committed complies with 1, 2 and 3 above, criminal liability does not
yet follow. Unlawfulness still needs to be present.
b. Unlawfulness /Unjustified means, “contrary to law”, yet law in the bigger scheme
of things so as to allow an act which is contradictory to the letter of the law to be
permitted in certain circumstances because it is justified/the law tolerates such
conduct – the act that otherwise would or could have led to liability, is
excused/accepted as just/justified-if so, liability will not follow; The provisional
conclusion of unlawfulness is reversed.
c. Private defence, putative private defence, consent, necessity and official capacity
are known grounds for justification.
{Who has an onus of proof: the state (beyond reasonable doubt)
 When prima facie proof has been given that accused is guilty. Accused applies for
section 174 of const. court does not grant, onus of proof is not reversed so the
state still has the onus of proof.}
{Onus of proof always remains with the state.
Burden of proof on the accused to provide to the court something contrary to
what the state is presenting.}

5. Culpability:
a. The answer to one, two, three and four above is in the positive, one requirement
still needs to be met; i.e. culpability;
b. The perpetrator’s actions need to be culpable – in latin referred to as mens rea.
c. The focus shifts away from the act to actor, the perpetrator himself, his personal
abilities, knowledge or lack thereof
d. Two elements to culpability:
i. Criminal capacity
ii. Intentional/negligence
i. Criminal capacity:
At the time of the commission of the act, the perpetrator should have had certain
mental abilities. He should have had the ability to appreciate the wrongfulness of
his act (distinguish between right and wrong) AND the ability to act in
accordance with such appreciation. Mentally ill(insane) persons, for example, lack
criminal capacity. (section 78 & 79 of the Constitution)
Can a person distinguish between right and wrong. Children under the age of 10
do not have criminal capacity. They can not be held liable. 10 – 14 it is presumed
that this child lacks criminal capacity. Must be proved that child cannot
distinguish between right and wrong or that the child has the mental capability to
know the and appreciate the wrongfulness of his act. 14 and older are presumed
to have criminal capacity, must be proven that child does not have criminal
capacity.

ii. Intentional/ Negligence: the act should be either:

Intentional / Negligent.

If intention is required, the perpetrator should will the fulfillment of the

definitional elements, knowing that his conduct is unlawful or must foresee the
possibility of his conduct fulfilling the definitional elements and be unlawful, but
nevertheless proceed with the conduct. If he does not foresee or know, his
ignorance or mistake excludes intention.

Culpability continues:

Negligence

Crimes such as culpable homicide requires negligence.

In brief, the actions of the perpetrator does not accord with the standard of care required by
the law in particular circumstances/ the perpetrator fails to act in the way a reasonable
person would act/ have acted in the circumstances.
Note:

No violence = theft

Robbery can only take place in relation to movable property.

CRIMINAL LAW GENERAL PRINCIPLES:

[note: test 1: STUDY UNITS 1 & 2]

THEORIES OF PUNISHMENT:

Note: what needs to follow conviction > Suitable punishment/sentence

Sentence usually profoundly infringes upon X’s basic human rights > e.g. right to freedom of
movement, privacy and dignity.

This infringement calls out to be justified.

Theories of punishment = the different answers given through the ages to the question of
what right society has to punish convicted offenders, together with supporting arguments.

They are of vital importance.

Seek answer as to the justification of punishment > also what punishment ought to be
imposed in each individual case.

Even have a direct impact on the construction of the general principle of liability and of the
defenses afforded an accused.

Classification of theories:
First classification > three theories:

 Absolute theory
- Retributive theory
 Relative theory
- Preventive theory (prevention of crime)
- Deterrent theory (deterring the individual or society from committing a crime)
Individual theory
General deterrence theory
- Reformative theory (reformation of the criminal)
 Combination theory

DIFFERENCE BETWEEN ABSOLUTE AND RELATIVE THEORIES:

ABSOLUTE THEORY RELATIVE THEORY

Only one (retributive theory)
Punishment is an end in itself
Retrospective nature-one looks only at the
past > crime that has been committed.
Number of relative theories
Punishment is only a means to a secondary
end or purpose.
One looks at the future: the emphasis is on
the object to one wishes to achieve by
means of punishment.

Absolute theory:

 Punishment is the actual objective/aim within itself- not

deterrence/prevention/reform.

Relative theory:

 Punishment is a secondary end/ purpose.

 The main aim of these theories is that punishment should be aimed at another
objective i.e. deterrence, prevention etc.
i. Retributive:
- Restores the legal balance that has been disturbed by the commission of the
crime.
- Punishment is what the offender deserves- he is to pay a debt to society.
- The law protects rights, property, physical integrity etc. the advantage – yet the
reciprocal obligation to refrain from interfering with other’s rights.
- If everybody refrains from interfering with rights, property of others, the scales of
justice are balanced, yet if a crime is committed the scale become imbalanced.
- Retribution aims to restore the balance, thus the: “ restoring of the legal balance
that has been disturbed by the commission of a crime. ”
- The advantage that the law offers is that the law protects offender in that it
prohibits other people from infringing upon his basic rights or interests, such as
his life, physical integrity and property-however this right can on exist as long as
each member of society fulfils his obligation, which consists in refraining from
infringing upon other members’ rights.
- Reciprocity between the advantage and the obligation or duty.
- Retribution is strictly speaking not a theory (of punishment) punishment is the
essential characteristic.
- Retribution is not vengeance – it does not entail an eye for an eye (lex talionis)
– same harm inflicted by the offender to be inflicted upon the offender – it aims
to restore the balance.
- The degree of punishment to be in proportion to the degree of harm – the less
harm, the less the debt owed to society – the less the punishment.
- Example: a lessor sentence for someone driving negligently with no
consequences as opposed to driving negligently and causing the death or inury of
another – there is thus a call for proportionality.
- Retribution explains necessity of the culpability requirement – relative theories
- What does this mean?
- Retributive – man has free will, acts accordingly and can be blamed for his
actions – if he is at fault he can be blamed or punished.
- Relative theories – see the offender committing the crime as result of a
personality defect/ due to psychological factors/ a disadvantage environment etc
– performing the act thus not his fault(culpa) but due to external factors.
- Relative theories seek to counteract culpability i.e. it is not the offender’s fault.
- Retribution respects human rights – the offender is treated as a free, responsible
human being and held accountable – in essence there is respect for human
dignity – offender not just an object toward/ for another purpose.
- If a person voluntarily refrains from exercising the required self-control and
commits an act harming or injuring another’s interests, in circumstances in which
he could have acted lawfully- the scales of justice are no longer in balance.
- The wrongdoer renounces a duty which others voluntarily take upon themselves-
and in so doing he acquires an unjustifiable advantage over those who respect
their duties to society.
- Wrongdoer becomes a “free rider”.
- Wrongdoer now has a debt which he owes the society. (punishment pays the
debt he owes)
 - Punishment must be proportionate to the extent of the harm done or of the
violation of the law.
- If the emphasis was solely on prevention, the best thing to do would be to
imprison for life each thief who took even the smallest article.
- Would be the best form of deterrence.
- Punishment brings the offender down to the same level as the victim, and
expresses solidarity, not only with the victim, but with the maintenance of justice
in general.
- Very important difference between the retributive theory and the relative theories
is the following:

Retributive theory Relative theories

Operates within an indeterministic Operates within a deterministic
construction of society construction
Presupposes that man has a free a Presupposes that man does not have
free will a freedom of choice but is the victim
of outside forces e.g. heredity,
environment or upbringing.
Can be praised or blamed for his Is being manipulated or capable of
actions being manipulated.
- Free people can be held responsible for their choices-provided the choices were
made voluntarily.
- They brought punishment upon themselves.
- Can fairly be blamed for what they did and their punishment is their just desert.
- They have earned their punishment.
 Relative theories
a. The preventative theory
b. The deterrent theory – induvial and general deterrence; and
c. The reformative theory
a. The preventative theory
 Aims to prevent perpetrator the ability to commit crime(again);
 Can overlap with both the deterrent and the reformative theories-since both can be
seen as methods of preventing the commission of crimes.
 Examples of pure preventative theory: capital punishment, life imprisonment,
forfeiture of assets, a gun or driver’s license for example, life imprisonment
 In its purist form, the aim is to incapacitate any offender to/ from re-offending.
 Wrongdoer is being punished in order to prevent him being capable of committing
crime again.
 View: purpose of punishment is the protection of society.
 Success of this theory depends on the ability of a court to establish beforehand
which accused is so dangerous that they should permanently, or at least for a long
period, be removed from society.
 It is difficult for court to be capable of this.
 This is one of the points of criticism against the efficiency of this theory.
 A person’s record can however be used as a guideline.
 If it shows previous convictions, indicating that he makes a habit of committing
crimes, the court may take this into account and sentence him to a long term
imprisonment in order to prevent him from committing crimes again.
 Page 13=criticisms
b. The deterrent theory
 Individual deterrence:

INDIVIDUAL DTTERENCE GENERAL DETERRENCE

Offender as an individual is deterred
from the commission of further crimes
To teach the individual person convicted
of a crime a lesson which will deter him
from committing crimes in the future
Whole community is deterred from
committing crimes
Purpose of punishment is to deter
society as a whole from committing
crime

- The punishment seeks to deter the individual perpetrator not to re-offend – to

teach him a lesson which will deter him from committing crimes in the future;
- Shockingly high rate or recidivism i.e. offender re-offended even after
punishment presupposed in deterrence, undermines the success/ effectiveness of
the theory.
 General Deterrence:
- The emphasis is on the effect the punishment will have on society – will the
punishment of the individual deter the public at large not to commit crime;
- The imposition of punishment sends a message to society that crime will not be
tolerated, punished and fear thus instilled in society not to commit crime;
- Success of this theory does not depend on the severity of the sentence – but on
how probable it is that an offender will be caught, convicted and serve out his
sentence.
- Only successful if there is a reasonable certainty that an offender will be traced
by the police- that the prosecution of the crime in the court will be effective and
result in a conviction- and that the offender will serve is sentence and not be
freed on parole too early or escape from prison.
- Criticisms against this theory:
1st > man prefers painless over painful and that he is a rational being who will
always weigh up the advantages and disadvantages of a prospective action
before he decides to act. (not always so)
2nd > basic premises (that the average person is deterred form committing a
crime by the punishment imposed upon others) can presumable never be proced.
To be able to prove it one would have to know how many people would commit
the crime if there were no criminal sanction.
Cannot be ascertained empirically.
Deterrent effect of punishment rests on fait rather than real empirical evidence
3rd > requirements of culpability (cornerstone of criminal liability) cannot readily
be explained by merely relying on this theory.
4th > if one applies this theory, it becomes permissible to impose a punishment
on an offender which is not proportional to the harm he inflicted when he
committed the crime, but which is higher than a proportional sentence.
Misconceptions or criticisms:
- The effectiveness of general deterrence is linked to the severity of the
punishment – the more severe the punishment, the more deterrence- this may
 lead to courts handing out severe punishment even for minor crimes only to
deter effectively.
- If punishment is premised upon such, proportionality becomes an issue – the
punishment doesn’t fit the crime, the (too harsh) a punishment serves another
purpose – to deter (and not to punish) proportionately.
- Can it be empirically proven that punishment (of another) actually deters? Do
(potential) perpetrators exercise the rational thinking of “there will be
punishment” before they continue to act, especially in crimes committed in the
spur of the moment;
- The success of the theory (actually) depends on society’s thoughts or perceptions
on whether they, if committing a crime, will actually be traced, arrested, charged
and convicted and (also) punished;
- If the view, as seems to be the case in SA, that due to lack of expertise,
inundated court roles, thus over-loaded prosecutorial responsibilities, the general
lack of effectiveness within the prosecutorial sphere, the above does not seem to
be the case – the theory thus not fit for purpose in SA.
- Other criticisms – Culpability as cornerstone for liability cannot be explained –
One could even punish a criminally insane person and this will still serve to deter
– deterrence is the aim, not the punishment as a result of actual culpability.

The reformative theory:

- The aim to reform the offender:
The focus is not on the crime, the harm caused or the deterrent effect of
punishment but on the personality of the offender.
Crime is committed not due to fault (culpa) of the offender, yet informed by
external reasons i.e. personality defects, psychological factors stemming from an
unhappy background, broken parental home etc, etc…..
- The recent growth of the sociological and psychological sciences has largely
contributed to the creation of this theory.
-

Criticism

It does not accord with the principle of culpability as prerequisite to liability – in

essence it denies that there is culpa on the side of the offender – it is NOT his
fault;

Punishment may be disproportionate – even a petty thief may be punished with a

long- term sentence especially if time to him being deemed as “reformed” is
extensive;

Can older offenders really be reformed – it is often difficult if not impossible to

break old habits and change set ideas; The theory is effective only if the
offenders are relatively young

Experience has taught that reform is an ideal, not a reality. High rates of
recidivism tends to support this conclusion.
 The ideal of reformation may be indirectly advanced if a court imposes a
sentence which is suspended on condition that the wrongdoer subject himself to
a certain rehabilitation programme. The reformation then takes place outside
prison.

It is not necessary to wait for a person to commit a crime before one starts to
reform him. A complete consistent application of this theory would mean that
once a person clearly manifests a morbid propensity towards certain criminal
conduct, one ought not to wait for him to commit a crime, but should have him
committed to a rehabilitation institution immediately so that an attempt can be
made to cure him from his problem.
There would be no relationship between a ‘sick person’ and the commission of a
crime. The person requiring treatment would then no longer be a criminal, and
the ‘treatment’ he received would then be viewed in the same light as the
hospitalisation of ill people

The combination theory:

Our Courts, at least attempt to, not fucus on or accept or reject any single
theory.” The aim to apply a combination to reach appropriate punishment;

The idea of retribution ought, in principle, to form the backbone of our approach
to punishment.
There is no such thing as punishment devoid of any element of retribution.
Retributive theory = indispensable
It is the only one which decrees that there ought to be a proportionate
relationship between the punishment meted out and the moral blameworthiness
of the offender, as well as between the degree of punishment, on the one hand,
and the extent of the harm done or the degree which the law was violated, on
the other hand.

Three main considerations when sentence is imposed:

- Crime (degree of harm or seriousness of violation)
- Criminal (personal circumstances)
- Interest of society (society must be protected from dangerous
criminal/community must be deterred from crime)

SCA 2011, Matyityi v S – the judgment of the SCA states that courts should also
consider the interests of the victim when considering the appropriate
punishment;

If one looks at case law on sentencing, it seems as if deterrence has become the
most important objective of punishment – see criticisms of this theory;

Snyman, and other commentators, are of the view that, especially due to the
pitfalls of the deterrence (and other) theories, that the retributive theory should
be the main theory, with others supporting, upon which punishment should be
premised. See discussions on p 17 and 18 of Snyman.