2nd semester criminal law cases other half PDF

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© Carey Robertson 2014 SFR 124Case Area of law PrincipleS v Hoho 2009 (1) SACR 276 (A)Appellant convicted on 22 charges of criminal defamation and sentenced to 3 years’ imprisonment suspended for 5 years plus 3 years’ correctional supervision. Appeal against conviction and sentence.Criminal defamati...

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Case S v Hoho 2009 (1) SACR 276 (A) Appellant convicted on 22 charges of criminal defamation and sentenced to 3 years’ imprisonment suspended for 5 years plus 3 years’ correctional supervision. Appeal against conviction and sentence.

Area of law Criminal defamation

Principle Legal question 1. Was crime of criminal defamation abrogated by disuse ? 2. If not, was it in agreement with the Constitution ? Decision of court 1. Court had to consider whether it could be said that SA community had tacitly accepted that defamation could no longer constitute a criminal offence – court held that it could not be said that criminal defamation had been repealed by silent consent of whole community.

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2. Regarding constitutionality of offence, although freedom of expression was fundamental to a democratic society, it was not a paramount value and must be considered in context of other values, such as human dignity. Law of defamation (criminal and civil) was designed to protect reputation of people, and in doing so it clearly limited right to freedom of expression. Although a criminal conviction and sanction arising therefrom might be more severe than an order to pay damages, the limitation of right to freedom of expression was not. In any event, to expose a person to criminal conviction where it was proved that he had acted unlawfully, and had known that he was acting unlawfully, was a reasonable limitation on right to freedom of expression. Therefore, crime of criminal defamation was not inconsistent with Constitution. Appeal dismissed.

© Carey Robertson 2014

SFR 124 Case summaries – part 2

2 S v Mellors 1990 (1) SA CR 347 (W)

Kidnapping

Legal question

Accused entered a library, where he pointed a gun at librarian and ordered her to sit down. He stacked books against the door to prevent anyone entering or leaving the room. Later, he ordered librarian to make certain telephone calls, which she did. After 2½ hours, accused agreed to give himself up and allowed librarian to leave the room. Appeal against conviction of kidnapping librarian.

Should accused have been convicted of a lesser offence because the detention only lasted 2½ hours ? Decision of court Kidnapping = unlawfully and intentionally depriving a person of liberty of movement and / or his custodians of control. State proved beyond a reasonable doubt that accused deprived librarian of her freedom of movement.

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Length of time of detention may be of importance as providing evidence of accused’s intentions but this is not a general rule to be applied in all cases. Evidence clearly showed that librarian was confined in same room as accused for over 2 hours while he held a gun in his hand and gave her orders to call various people. This cannot be considered deprivation of liberty for a ‘very short time’. Appeal dismissed.

© Carey Robertson 2014

SFR 124 Case summaries – part 2

3 S v Mlotshwa 1989 (4) SA 787 (W)

Public violence

Accused were participating in a legal strike and were gathered in vicinity of main gates of place of employment. A non-striking employee drove up to gates in a vehicle with temporary workers inside. She stopped in front of gate and a group of strikers surrounded vehicle, hit vehicle, screamed and attempted to open doors of vehicle.

Were the acts of accused of sufficiently ‘serious dimensions’ to justify conviction of public violence ? Decision of court Incident contained some of elements of public violence but not all. Incident only lasted 6-7 seconds – the time it took for gates to be opened. Members of crowd involved in incident were unarmed. No harm was done.

When gates opened, she drove through gates and onto premises. Whole incident involved between 1020 people and lasted about 6-7 seconds. No damage was done to vehicle and no one was hurt. Appeal against conviction and sentence for public violence. S v Sashi 1976 (2) SA 446 (N) Accused, a traditional healer, came to kraal of Ziyephi, whose daughter, 17 year old Ntombe, also lived there. Accused lived at kraal for some time. On 2 occasions, he travelled to Umzinto and Ntombe accompanied him (with Ziyephi’s consent). On a 3rd occasion, they did not return and began to live together in Umzinto as man and wife. © Carey Robertson 2014

Legal question

Therefore, it would be an unwarranted extension of crime of public violence to uphold finding that on those facts that crime was committed. Acts were not of sufficiently serious dimensions. Conviction and sentence set aside. 3

Abduction

Legal question Did accused have intention of marrying or having sexual intercourse with Ntombe at the time when he took her away from her kraal ? Decision of court Intention to marry or to have intercourse with minor must exist at time of taking minor out of custodian’s control and the taking must be unlawful. SFR 124 Case summaries – part 2

4 If a man takes a minor girl out of custodian’s control with innocent intent but thereafter forms an intention to have intercourse with her, and then does so, girl was seduced – however, mere seduction is not abduction.

Accused was convicted of abduction. Case on review.

Inference as to accused’s intention drawn by court a quo is not justified i.e. that, because accused had intercourse with her at some time after girl had gone away with him, that must have been accused’s intention at time of taking her away with him. Conviction and sentence set aside.

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R v Hanna 1937 TPD 236

Abduction

Violet was 18 years old and living in her brother’s house. Accused was her boyfriend. She told him that she was pregnant by him and he agreed to marry her. They met and then went to magistrate’s office to get married. Magistrate refused to perform the marriage. Violet returned to her brother’s house.

Legal question In order for crime of abduction to be committed, is it essential to prove an intention by delinquent (abductor) to deprive minor’s guardian permanently, or at least for a substantial period, of actual possession of minor ? Decision of court

Appeal against conviction of abduction. 5

Crime of abduction has been committed once delinquent has actually taken minor under his control with intention of marrying minor – even though it is proposed that minor shall return to guardian’s custody immediately after marriage ceremony and even though marriage does not actually take place. There was proof of an intended invasion of father’s rights sufficient to constitute crime of abduction.

© Carey Robertson 2014

SFR 124 Case summaries – part 2

5 In case where marriage is contemplated, intention to infringe or impair guardian’s rights is ipso facto (by that very fact) established by necessary and anticipated consequences of proposed marriage. So it is unnecessary to invoke period of actual removal as further proof of such intention.

S v Binta 1993 (2) SACR 553 (C) Appellant convicted of : 1. Driving while intoxicated – sentenced to R3 000 or 18 months’ imprisonment and driver’s licence revoked for 3 years 2. Defeating ends of justice – sentenced to R120 fine or 4 months’ imprisonment 3. Assault of a policeman – sentenced to 6 months’ imprisonment Appeal against convictions on counts 1 and 2 and against sentence on count 3

© Carey Robertson 2014

Defeating and obstructing course of justice

Appeal dismissed. Legal question 1. Can a person who refuses a request to submit to taking of a blood sample be found guilty of obstructing the course of justice or attempting to defeat the ends of justice ? 2. Was there a legal duty on part of accused to allow a blood sample to be taken from him ? Do legal convictions of community require that an arrested person’s refusal or omission to submit to taking of a blood sample be regarded as criminally unlawful ? Decision of court Regarding count 2 : clear on evidence that appellant was arrested by police on a charge of drunken driving before being taken to rooms of district surgeon (doctor) where doctor was requested by police to take a blood sample. Doctor was entitled to take such a sample in terms of Criminal Procedure Act. Evidence also showed that appellant was well aware that he had been arrested for drunken driving and that police wanted a blood sample for purposes of possible prosecution against him. SFR 124 Case summaries – part 2

6 1. No – defeating or obstructing course of justice consists in unlawfully doing an act which is intended to defeat or obstruct and which does defeat or obstruct due administration of justice – an act means something more than mere passivity i.e. there must be some overt conduct in order to constitute an act. There was no act in this case. 2. No – there is no legal duty on a person, when merely requested to do so, to submit to taking of a blood sample as envisaged by s37 of Criminal Procedure Act. It follows that a person who refuses such a request cannot be guilty of obstructing course of justice for attempting to defeat ends of justice.

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Appeal against conviction on count 2 upheld and conviction and sentence set aside.

S v Bazzard 1992 (1) SASV 302 (NK) Accused convicted of contravening s1(1) of Criminal Law Amendment Act 1 of 1988 in that whilst under influence of dagga he attempted to defeat ends of justice. Accused made a telephone call to police and told them he had kidnapped a girl and would kill her unless a ransom was paid to him. Police launched a search and traced accused, who admitted that he had not kidnapped anyone. Police wasted time and energy on this false alarm. © Carey Robertson 2014

Defeating and obstructing course of justice

Convictions and sentences for counts 1 and 2 confirmed. Legal question Did the mere wasting of time and energy of certain officials such as the police or personnel of AttorneyGeneral’s office constitute obstructing the course of justice ? Decision of court

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Course of justice which was required to be obstructed in order to constitute the crime was the process which was destined to result in a court case concerning an actual or intended suit between parties or between the state and its subjects. SFR 124 Case summaries – part 2

7 Accused’s actions did not constitute an obstruction of course of justice and conviction set aside.

Reviewing judge asked for reasons for conviction so matter was set down for argument on review. R v Malianga 1962 (3) SA 940 (SR) Appellant convicted of perjury. He had previously sworn before a sergeant of police that he had lost his registration certificate but at his trial on a charge of being found without his registration certificate, he had falsely given evidence that he had not told police that he had lost his registration certificate. As a result of this falsity, he was given a very light sentence.

© Carey Robertson 2014

Perjury

Legal question Was the false statement or testimony material to the charge of perjury ? Decision of court Onus was on appellant to prove that false statement or testimony was not material to issue before the court and not to the prejudice of any person.

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False testimony was not material to charge. However, as it was material in that it affected his sentence, that it was sufficiently material for a subsequent charge of perjury.

SFR 124 Case summaries – part 2

8 R v Beukman 1950 (4) SA 261 (O) Accused made a false statement under oath to a policeman. Appeal against a conviction of perjury.

Perjury

Legal question Does a false statement made under oath to a police officer amount to a statement in the course of judicial proceedings ? Decision of court One of essentials of crime of perjury is that false statement must be made in course of judicial proceedings. Case law shows that judicial proceedings are not confined to proceedings in a court of law but these must be proceedings in which rights are legally determined and liability imposed by a competent authority upon a consideration of facts and circumstances placed before it.

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A police officer to whom a statement is made under oath for purpose of laying a charge against another is not a judicial officer, nor does he act in a judicial capacity when he receives or takes down such a statement. He does not legally ascertain or determine any right or impose any liability. His duties are investigation, detection and prosecution of crime and he takes statements of complainants or likely witnesses in course of such duties, which are administrative and not judicial. Therefore, statement given by appellant to police was not given in a judicial proceeding. Appeal upheld.

© Carey Robertson 2014

SFR 124 Case summaries – part 2

9 Ex parte Minister of Justice : in re R v Gesa; R v De Jongh

Theft

Legal question

1959 (1) SA 234 (A)

Free State provincial division held in both decisions that where X threatens Y with personal violence in order to gain possession of a thing belonging to Y, and Y hands thing over to X rather than run risk of bodily injury – X is not guilty of robbery or theft.

Were the two decisions right in law in holding that where X threatens Y with personal violence in order to gain possession of a thing belonging to Y, and Y hands thing over to X rather than run risk of bodily injury – X is not guilty of robbery or theft ? Decision of court 10

The law was wrongly stated in the two decisions. X commits robbery even if there is no actual violence against Y – a threat of physical violence against Y if he does not hand over the property is sufficient. It follows that X is also guilty of theft. Legal question

Minister of Justice asked AD to decide whether this view was correct S v Cele 1993 (2) SACR 52 (N)

Theft

Accused found in street at night in possession of screwdriver and pair of pliers, which he alleged he had recently picked up off ground at a bus or taxi rank nearby. Tools were not worth very much and had no distinctive features.

Is it crime of theft where abandoned goods are found and kept by finder for himself ? Decision of court Even though accused had realised that in all probability, tools had not been thrown away, but merely lost, it was not enough to establish guilt.

Review of conviction for theft. No theft is committed when :

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© Carey Robertson 2014

 Goods which have been abandoned are taken by their finder and kept for himself; or  No abandonment has in fact occurred, but finder takes and keeps goods in honest belief that they have been abandoned; or SFR 124 Case summaries – part 2

10  No abandonment has occurred but finder believes that it is not feasible to restore goods to owner / lawful possessor because he cannot be identified or traced Prosecution failed to prove that accused did not have an honest belief that abandonment of goods had occurred at some stage. Conviction and sentence set aside. S v Mostert and another

Theft

Legal question

2010 (1) SACR 223 (SCA)

Is water flowing in a stream or river capable of being stolen ?

Accused, two sugar cane farmers, were charged, inter alia, with various offences under National Water Act 1998, as well as with common law offence of theft. Allegedly, they had pumped more water from a river than legally permitted as riparian owners.

Decision of court

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Appeal against convictions on statutory offences, theft and fraud. (riparian = related to, or situated on, the banks of a river)

Res communes = property belonging to everybody e.g. air, water in ocean or water in a public stream – such property is not capable of forming part of commercial dealings. Thus water flowing in a river or stream (a water resource as envisaged in the legislation) is ncapable of being stolen. Accused could be convicted of statutory offences, but not of common law offence of theft.

© Carey Robertson 2014

SFR 124 Case summaries – part 2

11 S v Yolelo 1981 (1) SA 1002 (A)

Robbery

Accused was in process of stealing certain articles from woman’s house, when she caught him red-handed in house. Accused assaulted woman and incapacitated her by gagging her with a napkin, tying her arms and locking her up in bathroom. Accused then continued to search house for money and arms.

Can crime of robbery be committed if violence follows on completion of theft in a juridical sense ? Decision of court There is no absolute rule that requires violence to precede acquisition. In each case, an investigation will have to be made into whether, in light of all circumstances, and especially time and place of accused’s acts, there is such a close link between theft and commission of violence that they can be regarded as connecting components of substantially one action – this was the case in this matter.

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S v Sithole 1981 (1) SA 1186 (N)

Legal question

Robbery

Conviction for robbery with aggravating circumstances upheld. Legal question

Y was carrying her handbag clutched under her armpit. X was behind her and suddenly grabbed it and ran off with it.

Did facts admitted by accused constitute the crime of robbery, as opposed to theft ?

Appeal against robbery conviction.

For handbag-snatching to amount to robbery, it is sufficient if X intentionally uses force in order to overcome the hold which Y has on the bag for the purpose of carrying it or if X intentionally uses force to prevent or forestall such resistance as Y would ordinarily offer to taking of the bag, if she (Y) were aware of X’s intentions. Conviction of robbery upheld.

Decision of court

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© Carey Robertson 2014

SFR 124 Case summaries – part 2

12 S v Mati 2002 (1) SACR 323 (C)

Robbery

Legal question

Accused was charged with and convicted of robbery (guilty plea). He had grabbed a cell phone out of complainant’s hand and run away with it.

On the admitted facts, was the accused rightly convicted of crime of robbery ? Decision of court

Case on automatic review. 15

Ex parte Minister of Justice : in re S v Seekoei 1984 (4) SA 690 (A)

Robbery

© Carey Robertson 2014

Legal question Is it a requirement for robbery that property should be on victim’s person or in his presence at time of theft ?

X violently attacked Y and forced her to hand him the keys to her shop, which was 2 kms away. He then tied her to a pole, using barbed wire, and drove her car to the shop, where he stole money and other property. Trial judge refused to convict X of robbery, for he was of opinion that it was a requirement for robbery that property should be on victim’s person or in his presence at time of theft

Fact that accused had acted swiftly and caught his victim by surprise did not elevate mere force to violence. Crime of robbery had not been proved so conviction altered to theft.

Decision of court

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It is not a requirement of our law that in order to constitute the crime of robbery, the theft must take place in the presence of the victim. Trial judged had erred in this regard – for robbery, no such requirement in fact existed and that X should have been convicted of robbery.

SFR 124 Case summaries – part 2

13 S v Myeza 1985 (4) SA 30 (T)

Fraud

Legal question

Accused placed a pul...