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STUDY THEME 1: CRIMINAL LAW & THE LEGAL SYSTEMNational law International law  Public: Crim law, const law, admin etc...  Private: Delict, contracts, succession, things etc...  Procedural: evidence, crim, proc, civil proc etc...  Mercantile International Criminal Law  International Huma...

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Emma Jo Roux 11085152

STUDY THEME 1: CRIMINAL LAW & THE LEGAL SYSTEM National law  Public: Crim law, const law, admin etc…

International law  International Criminal Law

 Private: Delict, contracts, succession, things  International Humanitarian Law  International Law

etc…  Procedural: evidence, crim, proc, civil proc etc…  Mercantile What is law? 

Normative definition: A body of rules governing human behaviour, prescribed by society, applied by the courts and enforced by the executive. This definition is a normative definition.



DE LEGE LATA: Law as it is (as it stands)



DE LEGE FERENDA: Law as it should be.

PUBLIC LAW 

V

Regulates the legal relationship btw state/public

PRIVATE LAW 

entities on a horizontal application  

Regulates the legal relationship btw private individuals

BUT ALSO btw state/public entities AND legal



Horizontal application

subjects on a vertical application eg. Criminal law



Constitutional implications

Constitutional implication: o √ Fair trial o √ Access to justice o √ to bodily integrity Dis btw 2

Material

v

Formal Criminal law

(AKA substantive criminal law) Substantive legal rules setting out the

(AKA criminal law of evidence) Rules setting out procedure or methods by

rights and duties of subjects or the state

which rules of substantive law are enforced

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Beyond Reasonable Doubt: No reasonable possibility that the accused version is true. MATERIAL: 

Snyman (p3): legal rules setting out the √s & duties of subjects & of the state.

Preferred (all elements)



Burchell (p1): that branch of national law that defines certain forms of human conduct as crimes and provides for punishment of those persons who unlawfully and with a guilty mind commit a crime.

NB!! ALWAYS START HERE!!! If one element is missing = acquittal

Faul t (me ns

Dolus Culpable homicide

Capacity

Unlawfulness/ Wrongfulness

Causation

Act/ Omission

Legality

NORM

The Impact Of The Constitution (p3-47 Burchell)  will be in test 1 

Specific √s in BOR relevant of crim law as evident from reported case law: 2

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o Equality (s9), o Dignity (s10), o Life (s11), o Freedom & security of the person (s12), 

Including freedom from torture and cruel, inhumane or degrading



Also includes the right to make decisions concerning reproduction

treatment or punishment o privacy (s14), o freedom of expression (s16), o Detained & arrested persons (s35); o All these √s are to be balanced in terms of the constitutional construction with reference to the Limitation Clause (s36) & the interpretation clause (s39). 

Specific capita from the criminal case. Law/ Legislation Punishment/ sentencing. o S v Mkwanyane – death penalty as a competent sentence for murder unconstitutional & against section 11 o Criminal law Amendment Act 105 of 1997 – Act on minimum sentences (life) in certain circumstances for murder, rape &robbery with aggravating circumstances: 

S v Dodo – criminal law Amendment Act is NOT unconstitutional (not against s35).

 Decriminalisation of certain crimes: o National coalition for Gay & Lesbian Equality v Minister of justice: decriminalisation of the crime of sodemy- against section 9 o The Choice on the Termination of Pregnancy Act 92 of 1996, Christian Lawyers Assoc. of SA v Minister of Health: decriminalisation of the crime of abortion as it violated section 12. Abortion does NOT violate section 11 as the right to life does not include a foetus. o Case v Minister of Safety & Security ; Curtis v Minister of Safety & Security; Films & publications Act: decriminalisation of the possession of pornography (excluding child pornography, bestiality & severe sexual violence) – against section 14 & 16.

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o POSSIBILITY of decriminalisation of passive/ active euthanasia – against section 12 & justifiable limitation of section 11 – SA Law Commission Report.  Criminalisation of certain crimes (creation of new crimes AND / OR extension of existing crimes: o S v Jordan: Prostitution & keeping of brothel in contravention of the Sexual Offences Act of 1957 still crimes, the crime of prostitution NOT unconstitutional & not against section 9.  Minority held that it is in violation of the Constitution as it unfairly discriminates based on gender because the prostitute and not the customer is likely to feel the criminal effects o Specific criminalisation of the possession of child pornography on internet – Films & publications Act of 1996 (amendment no 34 of 1999); S v De Reuck – CC decision: Prohibition against possession and distribution of child pornography is not unconstitutional o Criminalisation of corporeal chastisement by teachers – against s10, 12, 28(1)(d), S v Williams- Juvenile whipping as a sentencing option violated both dignity and freedom and security of person.  Section 10 of SA Schools Act. 

Christian Education of South Africa: Limitation on the right to religious freedom regarding corporal punishment of children is reasonable and justifiable.

o Amendment to the common law definition of rape ito s3 of the Sexual Offences Act (to repeal the Sexual Offences Act of 1957) – definition is now gender neutral, emphasis is now on “sexual penetration” & not “sexual intercourse” and recognises male rape; also the criminalisation of certain incident acts eg: forcing a person 115g of dagga; S v Bhulwana; Gwadiso 1995 12 BCLR 1579 (CC) – unconstitutional against section 35(3)(c)- Right to be presumed innocent. o Section 37 of General Law Amendment Act 62 of 1955 (received stolen property without reasonable cause) – presumption not unconstitutional and not against sec 35; S v Manamela- Excised a reverse onus from the offense of statutory receiving stolen property with an evidential burden; o Section 254 Criminal Procedures Act 51 of 1977 – invoked with the proof of intention with the crime of fraud – unconstitutional; S v Coetzee 1997 (1) SACR 379 (CC); CRIMINAL LAW AND THE LAW OF DELICT can ask differences & illustrate with examples 

Both crimes and delicts can be described as unlawful, blameworthy acts or omissions.



Broadly speaking a delict is an unlawful, blameworthy act or omission resulting in damage to another and in a right on the part of the injured party to compensation. A crime on the other hand is unlawful, blameworthy conduct punishable by the state.



Differences

Crimes Directed against public interest Forms part of public law

Delicts Directed against private interest Forms part of private law 5

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Result in the imposition of punishment by Result in the guilty party being ordered to the state pay damages to the injured party State prosecuted perpetrator irrespective Injured party may choose whether he of the desires of private individual wishes to claim damages or not Trial governed by rules of criminal Trial governed by rules of civil procedure procedure Beyond a reasonable doubt

On a balance of probabilities

Crime High Treason

BOTH Assault

Delict Negligent causing of

Perjury

Arsan

damages

Bigamy

Seduction

Unlawful possession of drugs The Concept of “Criminal Law and “Crime” Criminal law = penal law Crime = offense (NO technical difference)

The History & Sources of Criminal Law Sources: o Legislation, case law, common law, influence of constitution. 

Important influences o Roman-Dutch law

o German criminal theory

o English law

o BoR

o Indigenous law o NB! Emergence of Modern Crim law  Netherlands & England o NB! SA law: 

Reception at Cape



Criminal law & apartheid

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English influence

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Advent of constitution

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Transkeian penal code

SA criminal law in historical perspective (KNOW NB! WILL BE ASKED) o SA criminal law is a mixed “hybrid” legal system. It is a fusion of Roman-Dutch & English law. Our criminal law is stronger than both its parent systems as it is 6

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influenced by “scientific theories” of continental systems. Strength lies in a disseminating & wise use of comparative sources (section 39 of Constitution) – interpretation Constitutional jurisprudence. NB: Deductive method of reasoning= Pyramid (Deductive method of reasoning – NB read Saayman) Scientific theory of criminal law- we have general principles (pyramid) regardless of the facts of the case.

Determinism and Indeterminism (NB Possible link to capacity)  Determinism: “Anatomy is destiny”- Man is unable to rise above himself; his actions are predetermined by his genetic make-up- conduct is a result of blind causal processes. -

This school of thought would erode culpability in SA criminal law

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What about mentally ill and children?

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SA does not follow- BUT caveat, it applies to mental illness and to a limited extent to minors

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Modern criminal law= indeterminism

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BIG question is whether people are born or become wicked.

 Indeterminism: Man has the ability to rise above the forces of blind causal determinism; he has freedom of will and has the ability to control his impulses and passions -

SA criminal law is based on this

 In legal practice, however, a mixed approach is followed 

Practical example: Determinism for mentally ill, minors and those who are



A kleptomaniac who is addicted to chocolate who is locked in a Belgium

drunk Chocolate Factory 

A socio-path? NOT mentally ill and thus indeterminacy applies.



Paedophile? MOST indeterminism even though it is a sexual disorder

-

Must rise above your preconditions to know right from wrong

 CAN be asked to differentiate and give practical example.

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o Practical Example: Paranoid schizophrenic murders his mother because he believes his mother is the devil and is trying to poison him. 

In principle indeterminism must be applied. BUT this person is mentally ill and therefore determinism is applicable.



Cannot be held criminally liable because of a lack of capacity.

The purpose and function and CL and Crime  Problem with SA criminal law is that it only operates once a crime has been committed. We operate in a “broken reality of human condition”  Boni mores is the legal convictions of society- Delict and Criminal: to determine unlawfulness… in SA they are found on section 36 of the Constitution…. Limiting and determining violation of right. TEST for unlawfulness and resonates in section 36 Murder: the intentional killing of another person. Classification of Criminal Law and Crimes  Stat crime v CL crime -

Stat crime: is created by statute, by the legislature.

-

CL crime: Not written in the law but is determined by CL

 Mala in se/ Mala Prohibita (know distinction) NB -

Mala in se: Crimes which are in and of themselves heinous- murder, rape, fraud, drunk driving etc… 

What rights are protected by having these as crimes

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Mala Prohibita: A crime because it is prohibited eg smoking

-

Can ask what are the primary protected interests in crim law- start with CON

Practical Outcomes:  WHY is the definition of the material crim law by Burchell significant?  Explain the distinction between mat and formal crim law with practical eg  WHY is it necessary to distinguish between a crime and a delict with reference to the formal differences between the 2? -

State the differences

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 WHAT is the importance thereof for the SA criminal law to distinction between determinism and indeterminism? Explain with reference to practical examples?  WHY is the con of RSA NB in criminal law- explain with practical examples.

STUDY THEME TWO: LEGALITY  Base element of the pyramid  Separation of powers 9

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Judiciary to apply law

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Executive to enforce law

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Legislature to make the law

The nature of legality: “The principle of legality is underpinned by the themes of constitutional democracy and fairness and the derived vales of certainty and fair notice. These themes and values work out as certain practical applications of the doctrine”.  The typical example: o “Nobody may, on Saturdays perform any deed which may offend the boni mores. And such conduct will constitute a crime which will be punishable on conviction with a fine of R2000-00 or 3 months of imprisonment” o Analyse the stated provision and discuss whether it creates a crime or not. KEY CONCEPTS for legality (Nulla crimen sine lege- There can be no crime if the law does not recognise it as such)  Masumpha: Court stated that there is no Constitutional or Statutory Protection of a foetus and therefore a person who killed it cannot be guilty of murder)



Definition: 1. An accused may not be found guilty of a crime unless the type of conduct with which he is charged: a. Has been recognised by the law as a crime (ius acceptum) b. In clear terms (ius certum) c. Before the conduct took place (ius praevium) d. Without the court having to stretch the meaning of the words and concepts in the definition to bring the particular conduct of the accused within the compass of the definition (Ius strictum), and 2. After conviction an accused may not be sentenced unless the punishment also complies with the four principles set out immediately above under 1(a) to (d) (nulla poena sine lege).

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 The principle of legality is incorporated into the Constitution through section 35(l) and (n) and as such forms part of the Bill of Rights (applicable to and all law must be consistent with this). o l: The right to a fair trial includes the right NOT be convicted for an act or omission that was not an offence in terms of national or international law at the time it was committed (ius praevium) o n: The right to a fair trial includes the right to benefit of the least severe punishment for the offense charged with where there has been a change between the time it was committed and the time of sentencing.  Legality is underpinned by: o Section 35(l) & (n) and section 172 of the Constitution. o Due process o Fairness o Legal certainty

TEST ONE FOR

To comply with legality there must be a legal norm, a criminal norm and a criminal sanction.

LEGALITY Legal Norm (1) Only a mere prohibition

Criminal Norm (2) Criminal Sanction (3) Criminalising the prohibition to Punishing the crime/ or the penalty

create a crime clause (1) + (2) + (3) = PERFECT LEGALITY- De Lege Ferenda Example: Analyse: “no one is allowed to travel on a train without a valid ticket , and such conduct will amount to a crime, punishable on conviction with a fine of R500-00 or imprisonment of 50 days, or both”.

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TEST TWO FOR LEGALITY

Implications of the principle of legality: ius acceptum: The court may find an accused guilty only if the type of conduct performed by him is recognised by the law as a crime at the time it was committed- indorsed by section 35(3)(l) of the constitution. A crime may only be found in legislation or in the common law, thus the court cannot create a crime.

in statutory crimes

ius praevium: There can be no conviction of, or punishment for, conduct not previously declared to be a crimeindorsed by section 35(3)(l) of the constitution. The creation of a crime with retrospective effect is AGAINST legality.

Principle of legality

ius certum: crimes should not be formulated vaguely ius strictum: A court should interpret the definition of a crime narrowly rather than broadly.

in common law crimes

IUS DICERE NON DARE: The courts are there to speak the law.

nulla poena sine lege: The punishment for crimes must also be clearly prescribed by law in advance. There can be no punishment unless there is a contravention of a law which defines the offence with reasonable precision and in advance of its perpetration. When dealing with punishment ( poena) regard is also given to jus acceptum, ius certum, ius privium, ius strictum. Thus, the relevant rules applicable to nulla crimen sine lege apply mutatis mutandis to nulla poena sine lege 12

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Contra Legality Forlee (read in) Masiya

Pro Legality Von Mollendorf (refused) Mshumpa (correct) Smit (Correct)

Forlee: Contra ius dicere non dare.  FACTS: illegal possession and sale of opium. Counsel argued that this crime does not comply with legality as there was only a legal norm. where it is clear that the legislature intended to create an offence and failed to provide a criminal sanction, this could be read in by the judiciary.  JUDGMENT: Read in the legality and convicted him on the provision.  Against legality as it ignore the “judges apply, not make the law” principle Von Molendorff: In favour of ius dicere non dare.  FACTS: Altercation between complainant and policeman (von mollendorf). Perceived assault. Complainant laid a charge against him. Complainant you must make a signed affidavit to absolve him of wrongdoing and if he didn’t he would be incarcerated without bail. If you unduly pressurise someone for patrimonial benefit- common law crime of extortion. Laid the charge anyway and VM was charged with CL extortion. His (VM) advocate raised the point in limine that he cannot be guilty of this crime because it doesn’t comply with legality because he exerted pressure for “non-patrimonial” benefit  Court a quo: dismissed this  Full bench: court can only hold guilty if they extend the CL definition of legality. Said VM’s attorney is correct and they are not going to extend the CL because to do so would violate ius dicere non dare . If the CL is to be extended legislature must do so. Smit: In favour of ius dicere non dare.

 An ultra vires administrative action can lead to an undermining of legality in criminal law if there is a prosecution. Masiya: Regarding Ius Praevium and ius dicere non dare

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 FACTS: Masiya kidnaped a 9 year old girl and raped her in the anus. At the time this was not included in the definition of rape- at the most it was indecent assault.  JUDGEMENT: o Developed the common law crime of rape to include anal penetration male on female in accordance with the Carmichelle duty. o BUT the court applied ius praevium and held that this cannot be extended retrospectively to include when this particular crime was committed.  Snyman’s criticism: The court transgressed the principle of legality because it is not for the court to develop the law but...