Pbl exam - PBL 410 CRIMINAL LAW NOTES PDF

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Criminal Law Exam ** Chanel Pereira ** 13 June 2017

Introduction → Law What is law

Public v Private

Law  international and national  national (public law and private law)  national (international crime court) 1. Law  normative  the way it is supposed to be  De lege late  the law as it is  De lege ferenda  the law as it would / could be  A body of legal rules  Governing  human behaviour  Prescribed  by society  Applied  by the courts  Enforced  executive 2. International law  International crime court  International crime court  Has JUR: o Genocide, crimes against humanity and war crimes o Natural JUR is unwilling / unable to genuinely carry out the investigation / prosecution  Will not intervene: o National criminal JUR  have acted / have not sufficient gravity Public Private → Criminal law → State with authoritive power / public entities and legal subjects on a vertical application → Regulates relationships btw state / public entities  horizontal application → And btw different state branches → Relationship btw other states → State always a party to dispute as an authoritive power → Const implications  S 11 and S 36

Material Criminal law v formal Criminal law

→ Regulates how the legal relationships btw private individuals as subjects → Horizontal application → Const implications: o S 12 (2) (b) o Right to bodily integrity o Eg- refuse medical treatment o A private defence o S 36

Material 1. 2.





also known as substantive criminal law explains rights and duties

Formal 1. 2.

Example Define the criminal crime of murder in  legislation and provides from the punishment of that crime  If proceedings are instituted by public authority: 1. There is a culpability req 2. And potentially severe consequences may follow 3. Then the person will be deemed to be charged with a crime 4. Imprisonment / fine

also known as criminal law of evidence explains procedure an proof of how material law enforced Civil procedure, criminal procedure, law of evidence Criminal procedure: 1. Lays down procedure 2. That alleged criminals 3. Are brought before the court 4. And tried for their alleged crimes 5. Burden of proof – state 6. Test = beyond reasonable doubt – the defendant version is reasonably possibly true

Criminal Law Exam ** Chanel Pereira ** 13 June 2017

Introduction → Criminal law definition Snyman

1. Substantive legal rules 2. Setting out the rights and duties 3. Of subjects of the state

Burshell

1. 2. 3. 4. 5.

Preference to burchell

That branch of national law That defines certain forms of human conduct As crimes And provides for the punishment Of those persons who commit a crime a. Unlawfully and b. With a guilty mind

1. It has all the elements of criminal liability  unlawfully and with a guilty mind 2. Explains the operation of criminal law 3. Explains the purpose of criminal law  To define certain forms of conduct as crimes and to provide for the punishment of those persons who commit a crime Q: Why is definition of material law by Burshell significant? My answer: The definition of material criminal law by Burchell is significant because it explains all the elements of criminal liability, explains the operation of criminal law and explains the purpose of criminal law. His definition is as follows: “That branch of National Law that defines certain forms of human conduct as crimes and provides for the punishment of those persons who commit a crime unlawfully and with a guilty mind.” The elements of criminal liability are seen in ‘unlawfully and with a guilty mind.’ The operation and purpose is seen in, ‘human conduct as crimes and provide for the punishment of those persons who commit a crime.’ This is far more insightful than Snymans definition, “Substantive legal rules setting out the rights and duties of subjects of the state.”

Criminal Law Exam ** Chanel Pereira ** 13 June 2017

Introduction → Impact of Const Sections

Courts granted power to test / develop criminal law in line with const

Capital punishment

1. 2. 3. 4. 5. 6. 7.

Equality – S 9 Dignity – S 10 Life – S 11 Freedom of security of persons – S 12 Privacy – S 14 Expression – S 16 Due process – S 35

→ All rights to be balanced i.t.o  constitutional construction → With reference to  limitation clause  S 36 → And interpretation clause  S 39 Limitation clause Interpretation clause → Not a closed list of rights → Rights not absolute – rights are qualified → Derogation is permitted o Non-derogable – state of emergency o Some rights personally derogable – eg – right to life, dignity + security cannot be subject to cruel inhumane treatment – which is made in medical / scientific experiments → Rights subject to CC → General inquiry 1. Has a right / freedom i.t.o bor been infringed 2. Is it in the law of general application 3. Is the limitation justified 4. In an open democratic society based on human dignity + equality + freedom 5. If yes to all = justifiable limitation

→ When interpret BOR must have regard to international law + foreign law + develop common law in line with const → In a reported case abortion was decimalized court used s 39 to look at foreign international law and incorporated into our law → Guides us to interpret both right + enactment → Must be interp to promote the value system of an open and democr society based on dignity, equality and freedom → Must be consistent with const

→ S v Makwanyane o death penalty as a competent sentence for murder unconst and against s 11 = death penalty repealed o life imprisonment should mean imprisonment for life o possible exception – treason in state of war o imprisonment should not be subject to unecc dilution – the duration of imprisonment → Min sentence o Criminal law amendment act  act on min sentences (life) in certain circumstances for murder, rape and robbery with aggravating circumstances o S v Dado  Criminal law amendment act is not unconstitutional and is in line with Section 35

Criminal Law Exam ** Chanel Pereira ** 13 June 2017 

Rather than to diminish the traditional scope of the judicial discretion in the application of min sentence  Re-affirmation of judicial discretion in sent through inter of the concept  Substantial trial and compelling reasons to exist to dep from leg stimulated min sentences  Help to immunise life imprisonment → Consequences of outlawing capital punishment o before extraditing the accused charged with committing a crime in a foreign state – the SA government has to secure an assurance / undertaking from the foreign state that the accused would not be executed if extradited → Sentencing o Criminal law amendment Act  Judicial officer may only impose lesser = substantial + compelling reasons exist o When do such circumstances exist  When court unease abt imposition of the prescribed punishment  Of opinion injustice will be done by impose sentence that is disproportionate with the crime / the criminal / legitimate needs of society Corporal punishment

Abortion

Possession and receiving stolen property

→ Criminalized in o S 10 of SA schools act → In Williams: o Held that the provisions of section 294 of the Criminal Procedure Act (Provided juvenile wiping as a sentencing option) violated the right to dignity (s 10) and the right against cruel, inhumane and degrading punishment (s 11(2)) → Christian Education SA v Minister of Education: o S 10 of SA schools act o Arguments:  Challenged validity of this section (prohibiting the use of corporeal punishment on schools) saying that it infringes on their right to religion. (religious freedom)  Parents have consented to their children being subject to corporeal punishment o Decision:  Rejected arguments  Even if S 10 limited parents freedom of religion it constituted a justifiable limitation  S 10 applies to all schools – private and public → Christian lawyers Association of South Africa v Minister of Health: o Abortion was challenged on the basis that it permitted the termination of human life. o This challenge was rejected on the basis that the right to life in section 11 of the Constitution did not include the life of a foetus.

→ S 37 = General Law Amendment Act o offence of statutory receiving) o S 37 = “any person who is found in possession of goods reasonably suspected of having been stolen and is unable to give satisfactory account of such possession is guilty of an offence”

Criminal Law Exam ** Chanel Pereira ** 13 June 2017 → S v Manamela o Exercised reverse onus from the offence of statutory receiving (S 37) replacing it with an evidential burden o Constitutional = no right has been violated: right to presumption of innocence not violated. Freedom of expression

Justifiable homicide

The presumption of innocence and reverse onus

Organised rime Prostitution

Public nudity

→ The Constitutional Court held that the provision prohibiting the possession of indecent or obscene photographic matter is unconstitutional. → The majority held that this provision constituted an infringement of the Section 13 (interim constitution) right to personal privacy. → De Reuck v DPP: o The provision against the distribution and possession of child pornography was upheld as constitutional. → It was held that an image constituted child pornography if the image was, objectively, viewed to have an erotic rather than aesthetic purpose. → Ex Parte Minister of Safety and Security: In re S v Walters: o The provision providing that a fleeing suspect may be shot and killed was declared unconstitutional. → S v Zuma: o The Constitutional Court reiterated the importance of reasonable presumptions which are at the state’s disposal in order to prosecute crime effectively. o The presumption regarding confessions made by the accused before trial was subject to Constitutional scrutiny:  The court stated that the presumption of innocence is breached when the need to prove certain elements results in the accused being found guilty despite reasonable doubt. → S v Bhulwana & S v Gwadiso: o The court held that the presumption providing that an accused found with more than 115 grams of dagga in his possession is presumed to be a dealer infringes the presumption of innocence and is unconstitutional. → S v Meaker: o The presumption that a vehicle was driven by its owner was upheld as being a valid presumption. → S v Jordan: → The majority of the Constitutional Court affirmed the criminality of prostitution. → The minority were of the view that the criminality of prostitution is unconstitutional on grounds that it discriminates unfairly on the basis of gender as it is primarily aimed at the prostitute and not at the customer. → Phillips v DPP: o The provision prohibiting public nudity on premises holding liquor licenses (such as strip clubs) was held to be unconstitutional as it was too widely formulated as it could apply to bars, hotels, restaurants, clubs, sports grounds and theatres.

Criminal Law Exam ** Chanel Pereira ** 13 June 2017 Strict liability

→ S v Coetzee: o People who are not at fault should not be deprived of their freedom. o Therefore, fault is inherent to the deprivation of freedom and security according to section 12 of the Constitution. o Paizes is of the opinion that strict liability violates the right of the accused to be presumed innocent.

Bestiality

→ S v M: o Constitutionality of the crime of bestiality confirmed. o Even if this infringed the right to freedom and security, the right to privacy and the right not to be discriminated against on the basis of sexual orientation, such infringements would be reasonable and justifiable. o Bestiality offends the boni mores and there is an inability for the animal to consent.

Criminal defamation

→ Hoho → Defamation is not inconsistent with the const nor repealed by silent consent of the whole community → Rejected the argument that a degree of seriousness need to be present for criminal defamation

Contempt of court

→ S v Mamabolo: o It is important to protect the integrity of the administration of justice. o Therefore, it is justifiable to limit a person's freedom of expression relating to the scandalising of the court as contempt of court. o However, it was held that there should not be summary procedure for the charge of contempt of court as this is not a justifiable infringement of the right to a fair trial.

Fraud

→ S v Friedman o Argued common law crime was too wide in its definition of potential prejudice o NOT unconst and not against s 35

sodomy

→ National Coalition for Gay and Lesbian Equality v Minister of Justice: o The common – law crime of sodomy is unconstitutional as it unjustifiably infringes on the fundamental rights to equality, privacy and dignity.

Euthanasia

→ Possibility of decriminalization of passive / active euthanasia = against s 12 and just limitation of s 11 – SA law commission report

Children and sentencing

Crim law amendment acr – min sentencing applicable to 17 + 16 yr olds Reported case → Amend meant that whioe sent child age 16 – 18 court not req to find substantial and compeeling reasons to depart from min sentencing → Said primary sent will operate as significant weigh factor Centre for child law case → Minority – amend act rendered the sent regime uncost → Judge cameron

Criminal Law Exam ** Chanel Pereira ** 13 June 2017 Court while rely on S 28 – practice reasons relating to a child phyc + physical needs have effect when imposing standards o Child detained - but interests remain paramount o Courts should seek individually applicable sentence Concluded o Criminal law sentencing act limited rights of children and aginst s 36 Majority o Limitation uncost o Min sentence leg – unonst o Those sentenced under amend act = allowed to repeal S 21 (1) (a) (I) of the Drug and drug trafficking Act o “if an accused has been found in possession of more than 115g of dagga, he would be presumed to have been dealing in dagga and so convicted, unless that person proved that he was not dealing in dagga” S v Bhulwana; Gwadiso  unconst against s 35 (3) (c) = presumption of innocence o

→ →

Drug and drug trafficking

→

→

Criminal Law Exam ** Chanel Pereira ** 13 June 2017

Introduction → Crime v Delict Differences Material differences

Crime 1. Unlawful Act in the domain of public law which transgresses the material criminal law 2. Directed against public interests

1.

2. 3.

Formal differences

What is the difference between the horizontal and vertical application of the crime law versus that of the law of delict Why do we distinct between crime and a delict in one sentence = WILL BE ASKED crime and a delict overlap = assault

1. Enforced through the criminal procedure act 2. State bears the onus of proof beyond reasonable doubt 3. State prosecutes 4. State prosecutes perpetrator irrespective of the desires of the private individual = Vertical relationship between state and individual 5. Aim = conviction and punishment

1. 2.

3. 4.

5.

6.

Delict Unlawful, blameworthy act / omission resulting in damage to another and in the right on the part of the injured party to compensation Directed against private interests Wrongful act in the domain of private law causing damages Civil procedure private party instituted action = Horizontal relationship between individuals party controlled, on a balance of probabilities Result in the guilty party being ordered to pay damages to the injured party Injured party can choose if he wants to claim damages / not Aim = Damages

→ Crime = state prosecutes. Delict = private party institutes action → Crime = is injurious to the public interest (interests of the state and community) Delict is injurious only to private / individual interests. → Crime = Public law. Delict = Private law.

→ Delict and criminal law are influenced by each other. → When a crime is compared to a delict criminal law fundamental principles come to the fore. → They are often confused with each other but have many differences.

→ Assault. → If X assults Y = Y can claim damages from X on the grounds of delict → Y can also lodge a complaint to the police against X on the grounds of assault which may lead to X’s conviction of punishment for the crime of assault

Criminal Law Exam ** Chanel Pereira ** 13 June 2017

Introduction → Determinism v Indeterminism Determinism

→ Not used in SA → That anatomy is destiny → That man is unable to rise above himself – inability to control the influence which his impulses, environment and passions have on him → His actions are predetermined by his genetic makeup / social / climate milieu in which he grew up → That conduct is a result of blind causa process → Would erode the concept of culpability in SA criminal law → The whole basis of criminal law would collapse → Mentally ill and children = not punished when they commit unlawful acts

Indeterminism

→ Man has the ability to rise above the forces of blind causal determinism → Has freedom of will to overcome the limitations of his nature and to choose to engage in conduct for which he will be held liable → Has the ability to control his impulses and passions → SA criminal law follows indeterminism

In practice

→ Mixed approach in practice → See child under 7 → See mental illness Sane person who is no longer a child is held responsible for his deeds and be blamed for his misdeeds

Criminal Law Exam ** Chanel Pereira ** 13 June 2017

Introduction → Elements Beyond reasonable doubt on all 6 elements Rule 1  Legality  usually not the issue but must be considered Rule 2  The accused must have committed an act / omission with the positive duty to act  if there is no legal act such as absolute force  then not guilty / not liable Rule 3  Causation  if the act had caused the death Rule 4  Unlawfulness  was the act which caused the death also unlawful  if no ; then no capacity Rule 5  Capacity  was the unlawful act also committed while the purpitrator had the capacity Rule 6  Fault  was the act which caused the death and was unlawful nad was committed with capacity  caused with the intention / is he merely liable fo culpable homicide?

Criminal Law Exam ** Chanel Pereira ** 13 June 2017

Legality Broad sense

In criminal law

Essentially Definition

→ a mechanism to ensure that the state, its organs and its officials do not consider themselves to be above the law in the exercise of their functions but remain subject to it. o Judiciary = applies and interprets the law – do not make it o Executive = executes the aw o Legislature = creates law  Contention – in the fact that when court interpret and develop the common law – are they making law or just applying it?  Carmichele o constitutional duty on all the courts to develop the common law 

prevents the arbitrary punishment of people by the state officials and ensuring that the determination of criminal liability and the passing of sentence correspond with clear and existing rules of law

about the status and legitimacy of a charge as against the accused → An accused may not be found guilty of a crime unless the type of conduct with which he is charged: o Has been recognized by the law as a crime  A court itself may not create a crime (ius acceptum principle)  Made up of common law crimes and statutory crimes o In clear terms  Crimes should not be formulated vaguely (Ius Certum principle) o Before the conduct took pla...