Housekeeping - Updates

Contact details
Email: Nombuso.Mashele@ump.ac.za
Cell nr: TBC (Landline)
Office: Archive Building, Office 212

Consultation Times - @ Office 212

Mondays = 10:00 -11:00
Tuesdays = 12:00 -13:00
CRIMINAL LIABILITY
General Requirements for Liability – Elements of a crime

1. Legality
2. Conduct
3. Definitional elements of crime
4. Unlawfulness
5. Culpability (Fault)
6. Capacity?
UNLAWFULNESS
Grounds of justification
1. Private Defence
2. Necessity
3. Impossibility
4. Consent
5. Official Capacity
6. Use of Force and Homicide During Arrest
7. Obedience to Orders
8. Excursus: Disciplinary Chastisement
9. Excursus: Trifling Nature of Act
UNLAWFULNESS -Official Capacity
• What does this mean?
- An act which would otherwise be unlawful is justified if the accused is
entitled to perform it by virtue of the office, he/she holds, provided it
is performed in the execution of her duties

- General Application
- Clerk whose duty is to supervise the exhibits in court cases and who locks up
a bundle of drugs in a chest, is not guilty of the unlawful possession of drugs
which are exhibits in a court case
Case: S v Swanepoel 1985 (1) SA 567 (A)
UNLAWFULNESS – Use of Force and
Homicide During Arrest
• General
- If a police officer or any other person authorized to make an arrest
(hereafter X) arrests a criminal or an alleged criminal (hereafter Y), or
attempts to arrest such a person, and Y resists the arrest or flees or
tries to flee, the law allows X, within certain limits, to use such force
against Y as is reasonably necessary to overcome Y’s resistance.
- X will then not be guilty of assaulting Y
- The arrest must be lawful
- The justification for the use of force, or even homicide, by someone
who is arresting another is governed by state
UNLAWFULNESS – Use of Force and
Homicide During Arrest
a. Section 49 of the Criminal Procedure Act – NB
Note – Previous wording of the section was declared unconstitutional
by the Constitutional Court in Ex parte Minister of Safety and Security:
in re S v Walter 2002 2 SACR 105 (CC)
- In 2003, a new wording for the section came into effect and in 2012
the wording was amended again
UNLAWFULNESS – Use of Force and
Homicide During Arrest
Section 49 of the Criminal Procedure Act

49. Use of Force in affecting arrest

(1) For the purpose of this section –
(a) ‘arrestor’ means any person authorized under this Act to arrest or to assist in arresting a
suspect
(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 s likely to cause serious bodily harm or death and includes,
but is not limited to, shooting at a suspect with a firearm.
UNLAWFULNESS – Use of Force and
Homicide During Arrest
49. Use of Force in affecting arrest

(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 arrest, use such force as may be reasonably
necessary and proportional in the circumstances to overcome the resistance or to
prevent the suspect from fleeing, but, in addition to the requirement that the force
must be reasonably necessary and proportional in the circumstances, the arrestor may
use deadly force only if-
UNLAWFULNESS – Use of Force and
Homicide During Arrest

49. Use of Force in affecting arrest

(2)
(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.
UNLAWFULNESS – Use of Force and
Homicide During Arrest
Requirements for the use of force ito section 49 of the CPA - NB

(a) the requirement that the act must be essential (1)

(b) the requirement of proportionality; and (1)
(c) the requirement that
(i) Y must pose a threat of serious violence or (1)
(ii) X must have a suspicion that Y had committed a crime
involving serious bodily harm in the past (1)
(Snyman page 108 -112)
UNLAWFULNESS- Obedience to Orders

Question: Why does this defence exist?

The military and police forces demand that a subordinate obey the
orders of a superior officer.
Obedience to a superior order does not mean absolute and blind
obedience to superior orders.
This defence can also be used in international criminal law – s 39(1) and
39 (2) of the Constitution
UNLAWFULNESS- Obedience to Orders

Requirements for the defence

a. The order must emanate from a person lawfully placed in authority of X
b. X must have been under a duty to obey the order
c. The order must not be manifestly unlawful (Queen v Smith (1900) SC 56 – also see S
v Banda 1990 (3) SA 466 (B) – no obligation to obey an unlawful order)

d. X must have done no more harm than is necessary to carry out the order

See - S v Mostert 2006 1 SACR 560 (N)

UNLAWFULNESS – Disciplinary
Chastisement
• Abolition of Defence
- Following a developmental trend in the constitutional era in South Africa, the
defence of disciplinary chastisement administered by parents has been
declared unconstitutional
- Williams 1995 2 SACR 251 (CC) – corporal punishment held to be
unconstitutional on the basis of the unjustifiable infringement of the right to
dignity that this form of punishment entails
- S 10 of the South African Schools Act 84 of 1996 = corporal punishment was
prohibited from being administered at a school to a learner - Christian
Education South Africa v Minister of Education 2000 4 SA 757 (CC)
- See also - Ex parte Attorney General in Namibia State 1991 (3) SA 76 (Nm SC)
UNLAWFULNESS – Disciplinary
Chastisement
Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC) –
NB

•The central question in this case was whether Parliament, by prohibiting corporal punishment in all schools,
unconstitutionally limited the religious rights of parents of children in independent schools who, in line with their
religious convictions, had consented to what they termed the ‘corporal correction’ of their children by teachers.

•The case raised difficult questions which required weighing considerations of faith against those of reason, and of
separating out which aspects of an activity are religious and protected by the Bill of Rights, and which are secular and
open to regulation in the ordinary way. Believers cannot claim an automatic right to be exempted by their beliefs from
the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers
through painful and intensely burdensome choices of either being true to their faith or respectful to the law.
UNLAWFULNESS – Disciplinary
Chastisement
Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC) – NB
• The judgment emphasizes that the present case does not require a decision on whether moderate corporal correction by
parents in the intimate atmosphere of the home violates the Constitution. It deals only with corporal punishment in the
detached institutional environment of the school. Schools of necessity function in the public domain so as to prepare pupils
for life in the broader society .

•Parents were not obliged to make an absolute and strenuous choice between obeying the law of the land and following their
conscience. They could do both simultaneously. What they were prevented from doing was to authorize teachers acting in their
name and on school premises to fulfil what they regarded as their conscientious and biblically ordained responsibilities.

•The court decided in favour of upholding the generality of the law in the face of the appellant’s claim for a constitutionally
compelled exemption.
UNLAWFULNESS – Trifling Nature of Act
• What does this mean?
- If X commits an act which is unlawful but the degree in which she
contravenes the law is minimal, that is, of a trifling nature, a court will not
convict her of the crime in question.
- Embodied in the principle – de minimis non curat lex which means “the law
does not concern itself with trifles”
- S v Kgogong - 1980 (3) SA 600 (A) = in this case, the court refused to
uphold a conviction of theft where the evidence was that X had merely
taken and removed a small piece of paper without any value and merely
regarded as waste paper.
- Case by case assessment