CRIMINAL LAW

SFR 114

recap

MODULE 1:

INTRODUCTION

Sources of criminal law Placement of CL in legal framework Define substantive law Define formal law Define public law Define criminal law Criminology//penology//CL Define crime Differences between a crime and a delict Hierarchy of the courts System of precedents Identify the relevant aspects of a criminal case

1 Common law

2 Legislation

3 The Constitution

4 Case law

5 Customary law

The law

Substantive law Adjective law Criminal procedure

Civil procedure Law of evidence

Legal interpretation

Private law Public law Criminal law

“the part of law which determines the CONTENT and meaning of the different legal rules or principles”

“the part of law which regulates the ENFORCEMENT of substantive law by determining the manner in which cases are handled where a legal rule has allegedly been violated”

“regulates the relationship between 1) the State (in an

authoritative position of power)and its subjects 2) the different branches of State and 3) different States”

“the part of Public Law which determines what conduct would be punishable under which circumstances and what the punishment therefore should be”

Criminology Criminal Law Penology

the scientific study of the

nature, extent, causes, and

control of criminal behaviour in both the individual and

in society…

the body of law that relates to

crime…

The scientific study of prisons

SELF STUDY!!! In Burchell

“A crime is unlawful guilty conduct of an accountable

person which as a consequence constitutes a crime the

prohibited result of which is punishable by the State”

1. Legality

2. Conduct

3. Causation (only for consequence crimes)

4. Unlawfulness

5. Criminal accountability / capacity

6. Fault

1

2

3

4 5 6

Elements

of a

crime

CRIME DELICT

Public Law – directed against the public interest

1 Private Law – directed against private interests

Criminal Law 2 Law of Delict

State prosecutes 3 Private parties institute actions or applications

Results in punishment by the State 4 Results in the liable party being ordered to pay damages to the injured person

State prosecutes perpetrator irrespective of the desires of the

private individual

5 The injured party can decide whether he wants to claim damages or not

Trial governed by rules of criminal procedure

6 Trial is governed by rules of civil procedure

Constitutional Court (CC)

Higher Courts: Supreme Court of Appeal (SCA),

Provincial and Local Divisions of the High Court

Lower Courts: Regional Courts (Magistrates’ Court) and

District Courts

Small Claims Court and “Specialist Courts”

CC

= the CC is the highest court regarding constitutional matters Judgements of the CC bind ALL other courts.

SCA

= the highest court regarding all matters other than constitutional matters Bound to own judgements, unless incorrect

Binds all the subordinate courts in RSA High Courts

Bound by the judgements of the Appellant Division If there is no Appelant Division, they are bound by their own judgements unless they were

incorrect A single judge is bound by the decisions of a full bench (2 or more judges)

HCourts in one province are NOT bound by the decisions of HCourts in other provinces (persuasive power only)

Lower Courts

Bound by the SCA as AS WELL AS the HCourts in their own province Lower court judgements do not serve as precedents

when courts of the same status give contradictory judgements, the case with

the most similar facts to the one you are dealing with must then be followed

S v Eadie 2002 (3) SA 719 (SCA)

MODULE 2:

Legality

The elements of a crime What is legality? Snyman definition of legality Meaning of nullum crime sine lege Two types of crime in SA criminal law and give an example of each Meaning of nullum crimen sine poena legali Legality and the Constitution CASE LAW

1 Legality 2 Conduct 3 Causation 4 Unlawfulness 5 Criminal capacity 6 Fault

A principle in law that has the purpose of ensuring that no one is above the law and everyone is subject to it (including the State and State organs)

“An accused may not be found guilty of a crime and

sentenced unless the type of conduct with which he was

charged:

(a) has been recognised by the law as a crime

(b) in clear terms

(c) before the conduct took place

(d) without the court having to stretch the meaning of the

words and concepts; and

(e) after conviction the imposition of punishment also

complies with the four principles set out above”

Snyman 36

= There is no crime if the law does not state that certain conduct is a crime

Iow, if conduct is not prohibited by the law per se, it is not a crime

Statutory crime Common law crime

= crimes which are formally defined in legislation (an Act) and with respect to which the principle of legality can fully apply

= crimes which are not defined in legislation but are transferred from generation to generation by the common law

Eg. being in contravention of the Firearms Control Act (Act 60 of 2000): S120 – a person aware of the unlawful possession of a firearm who does not report it is guilty of an offence

Eg. murder, rape, theft

= There can be no crime without a legal penalty Iow, where certain conduct is prohibited by the law but no legal penalty is prescribed, the definition of the conduct is incomplete as it does not include the element of legality

The constitution is supreme so all law must abide to the Constitution Certain crimes have been decriminalised by the Constitution (eg. sodomy) Principle of legality is found in S35(3)(l) and (n)

35. Arrested, detained and accused persons- … 3 … ( I ) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; … (n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment of the offence has been changed between the time that the offence was committed and the time of sentencing;

Francis ius praevium

Masiya

legality and the

development of the

common law through the

Constitution

MODULE 3:

CONDUCT

The definition of conduct The 4 elements (of the definition) of conduct Meaning of “any” Meaning of “personal” Meaning of “voluntary” Meaning of “behaviour” Instances where a person has a legal obligation to act Meaning of automatism Sane // insane automatism + example (Defence of) absence of conduct Amnesia (stage when it may be used as a defence) Liability based on prior voluntary conduct CASE LAW

“Conduct is any personal, voluntary behaviour”

4

1. any 2. personal 3. voluntary 4. behaviour

“ ”

= any juridically relevant behaviour = when behaviour can be casually associated with the perpetrated crime Eg. a person drinks to gather the courage to commit murder. The drinking is juridically relevant as it makes the person non- criminally accountable

“ ”

= either a human or a body corporate

A company is thus included and may be criminally prosecuted

Eg. Fraud

“ ”

= behaviour which is controlled by will Not necessarily conduct that is wished for

Volunteerism is negated by: 1. Absolute force 2. Forces of nature 3. Automatism = behaviour in a mechanical fashion. Eg. fits during

an epileptic fit, somnambulism, muscular movements while you sleep

The question to be asked: could a person direct their will?

“ ” = both positive conduct (commissio) and negative conduct (omissio). Eg. +: stabbing a person to death with a knife Commissio -: policeman looking on as a person is being assaulted Omissio In some cases a person has a duty or legal obligation to act positively and if you then fail to act that failure is punishable

General rule – a person has a positive duty to act if the legal convictions of the community require the person to do so

1. In terms of legislation – to act in a certain way after a car accident (S 93 of the National Road Traffic Act of 1996)

2. In terms of the common law - report treason 3. In terms of agreement – to watch someone else’s house while they are

away 4. Where a person controls a dangerous or potentially dangerous object –

Fernandez case 5. When a person is in a protective relationship – parent/ guardian and

child 6. Previous positive conduct – where a person lights a fire in a dry field and

neglects to put it out 7. Office – Ewels case 8. In terms of a court order – an order to pay maintenance after a divorce

= behaving in a mechanical manner

SANE automatism INSANE automatism

Examples

Sleep walking, amnesia, reflex movements,

drunkenness and absolute duress

Mental illness or mental defect

DIFFERENCES

The onus of proof

X relies on the defence of sane automatism: State

must prove that X acted voluntarily

X relies on the defence of insane automatism: X

must prove his mental illness

The eventual outcome of the case (will the accused leave a FREE person?)

A successful defence leads to a person leaving the

court a free person

A successful defence leads to the accused being

treated in terms of the relevant sections of the

Crim Proc Act: detention in a psychiatric facility,

thus the accused loses his freedom

The absence of conduct is a defence to a criminal charge

Conduct is (not voluntary and) excluded by: 1. Automatism 2. Sleepwalking 3. Amnesia 4. Reflex movements 5. Mental illness 6. Drunkenness – positions prior to ’81 and after ‘81 7. Absolute duress (force) – vis absoluta //vis compulsiva

Not always a defence

Only amnesia AT THE CRUCIAL MOMENT OF PERPETRATING THE ACT could be raised as a defence and not amnesia which sets in afterwards.

According to antecedental liability she made the voluntary choice to drive and this set in motion a casual chain reaction which lead to a harmful unlawful result.

Called a ommissio per commissionem

The omission follows a commission (positive act) which has created a duty to act positively

Fernandez omission – control of

dangerous object Russel

S v B protective relationship

Ewels omission – office

Dlamini Sleepwalking

Johnson voluntary drunkenness

before and after ‘81 Chretien

Van Rensburg prior voluntary conduct

Schoonwinkel

MODULE 4:

CAUSATION

Meaning of the principle of causation Factual causation Legal causation Test for legal causation Novus actus interveniens CASE LAW

To be criminally liable there must be a link/nexus between the conduct of the accused and the eventual result

Did the accused person’s conduct cause the prohibited consequence? Eg. X and Y are having an argument and X then stabs Y in the heart. Y dies within minutes after the stabbing vs X and Y are having an argument and X then stabs Y in the shoulder. Y is taken to hospital by an ambulance but on the way there, the ambulance is in an accident and Y dies in the accident Can X be charged with murder in both examples? For X to be charged with murder, there must exist a causal link between the conduct (stabbing) and the cause (death) A person’s conduct must be both the factual and the legal cause of the result

Factual causation is determined by using the CONDICTIO SINE QUA NON theory Condictio sine qua non = condition without which it could not be

Def. “an act is a condictio sine qua non for a situation if the act cannot be thought away without the situation

disappearing at the same time

Since the condictio sine qua non test is too wide, the second criterion must limit the range of possible causes of Y’s death

This second criterion is the test to determine legal causation

This test determines whether it is fair and just to hold X responsible for the death of Y

The most important factor in determining legal causality is policy considerations of what is fair and just

Individualising

theories

Generalising

theory

Points out one condition which can be the cause of the end result

A condition is the only cause when, according to general experience, it has the probable tendency to cause the end result

“the direct consequence test” or “the most proximate cause test”

Adequate theory

An act is a novus actus interveniens if it constitutes an unexpected, abnormal or unusual occurrence

This occurrence deviates from the normal course of events and cannot be regarded as a probable result of the act

An act is never a novus actus if it was foreseen

Mokgetghi

Loubser

Williams

Daniels

Tembani

MODULE 5:

unlawfulness

Meaning of unlawfulness Determination of unlawfulness (refer to Snyman) Meaning of boni mores Test for unlawfulness 9 Grounds of justification Define self-defence and name and describe the 8 requirements Define necessity and name and describe the 9 requirements The difference between self-defence and necessity Meaning of lex non cognit ad impossibilia Requirements of the defence of impossibility Define superior orders Meaning of disciplinary chastisement and the requirements to be met by parents The defence of public authority Consent: Snymans requirements for this defence and consent to be killed Meaning of de minimus non curat lex CASE LAW

= the difference between right and wrong

Snyman recommends the following:

1. PUBLIC LAW – unlawfulness rests on the infringement of a public interest protected by law

2. PUBLIC INTEREST – interests may sometimes extend further than the law is willing to protect. For this reason any infringement on the public interest is not necessarily unlawful. Eg. killing a person is against the public interest and thus

unlawful BUT killing a person in self- defence is not unlawful.

3. OBJECTIVE REASONABLENESS – a criterion must exist to determine when the public interest is

protected by law and when it is not. This criterion is objective reasonableness

4. CURRENT SOCIAL NORMS (BONI MORES) – objective reasonableness is the criterion for the

existence of unlawfulness and the content of reasonableness is determined by social norms

= The legal convictions of the community

Objective

NOT THE SAME AS THE REASONABLE MAN TEST

Objective ex post facto test and the objectively unreasonable test (where motive may be a factor to consider)

9

1. Self- defence/ private- defence 2. Necessity 3. Impossibility 4. Superior orders 5. Disciplinary chastisement 6. Public authority 7. Consent 8. De minimus non curat lex 9. Negotiorium gestio

Def: “self- defence occurs when a person protects his own interests or those of another against an unlawful attack, or such threatening attack and in the process lawfully injures the attacker or threatening person”

In respect of the assault 1 Positive omission or

commission

where a prisoner has served their time

in prison and the warder refuses to or

neglects to set them free – prisoner

acts in self- defence should he escape

2 Unlawful (NB) Self- defence is directed against an

UNLAWFUL human act:

3 Has already begun or

is immediately

threatening

If the attack has already taken place or

still has to take place in the future self-

defence cannot be used

4 Does not have to be

directed against the

defender

Self- defence may also be used to

protect another person

In respect of the defence

1 Directed against

the attacker

If A assaults B, B cannot direct his defence at C and still call it self- defence

If B directs his defence against C, it could perhaps be necessity

Self- defence can also NOT be raised when a person is killed in a duel

2 Conscious self-

defence action

Has not been pertinently decided on what this means…

3 Essentially

protects the

threatened

interest

Where it is possible to protect the interest in a different way, own action is not permissible

The question to be asked: could the defender have protected himself by rather fleeing?

4 Means used must not

be more damaging

than necessary to

prevent assault

(proportional)

(does not cause more damage than is necessary to ward off the

attack)

Was a defence at all necessary? // What means are

acceptable?

Various tests have been used:

1.the most important interests enjoy preference – Van Wyk

however protecting property enjoyed preference above

protecting life

2. the method of defence must weigh up against the means of

the assault – Jackson a revolver was used against an attack of

fists and shoes

3. the method of defence must weigh up to the threatening

danger – in both Van Wyk and Jackson the method of defence

outweighed the threatened danger

CURRENT TEST: were the means objectively and reasonably

necessary to ward off the assault?

(the Van Wyk case emphasises the objective test)

9

Def: “There is necessity when the perpetrator can only protect his interests by sacrificing the interests of another or where he contravenes a prohibition in order

to protect himself against danger.” Judged objectively

Requirements 1. necessity can be caused by human or natural forces 2. danger has already begun or is immediately threatening 3. danger to person, life or property may be warded off with necessity 4. danger to you or your property or another person or their property 5. a person who is legally obliged to endure distress cannot use necessity 6. perpetrator cannot create the necessity 7. perpetrator’s action is the only way out of the necessity 8. no more damage is caused than is necessary 9. the sacrificed interest must not be greater than the protected interest (the life of another person?)

There are 2 important distinctions 1.Origin of the situation of emergency Self- defence – stems from an unlawful human attack Necessity – unlawful human attack or from chance circumstances like natural occurrences 2. Object towards which the act of defence is directed Self- defence – always directed at an unlawful human attack Necessity – directed at either the interests of another innocent third party or it merely amounts to the violation of a legal provision

= the law does not compel the performance of impossibilities Only raised where an obligation rests on a person to do something positive and where it was objectively impossible for him to comply with the obligation

3 requirements 1. a positive obligation imposed by law 2. it is physically impossible to comply with the law 3. the impossibility is not due to the accused person’s fault

An order emanating from a superior

person who is in a authoritative position over the subordinate who

has a duty to obey the order.

3 requirements 1. the order emanates from a person superior in authority over the subordinate 2. the subordinate has a duty to obey the order 3. the subordinate must have done no more than necessary to obey the order

Defence to harm done to minors by a parent/guardian or person acting in loco parentis

3 requirements 1. the minor must deserve the punishment 2. punishment must be moderate 3. punishment is imposed with the aim of improving the minor’s behaviour Section 10 of the SA Schools Act (No. 84 of ’96) - no person may administer corporal punishment to a learner at a school

Persons may be authorised by statutory provisions or by inherent public authority to conduct certain activities which would usually be unlawful 1. Persons authorised by court order - Eg. where

a person is authorised under such an order to remove goods from a judgement debtors property

2. (Some) public officials

3. Legal arrests – as defined in S39-53 of the CPA BUT if a person steps outside these powers they act unlawfully and may be held accountable 4. Killing if persons in certain conditions – the previous S49(2) of the CPA was very drastic as a person could be killed by his arrestor under certain circumstance (eg. resisted arrest) - Declared unconstitutional in the Walters case 1) infringed on the right to life, dignity and security of the person 2) narrow test (proportionality between seriousness of offence and the force) was broadened to consider the proportionality between the nature and degree of the force and the threat posed by the fugitive to the safety and security of the police, individuals and society SEE SECTION 49 OF THE CPA!

Snymans requirements for this defence

1.The crime or act is of such a nature that the law recognises consent as a justification for that rime or act

2. Consent is given voluntarily and without coercion 3. Person giving consent is mentally capable of giving consent

4. The consenting person is aware of the true and material facts 5. Consent may be given either expressly or tacitly 6. The complainant themselves must give consent

NO! Nkwanyana case.

= the law does not concern itself with trifles there is no unlawfulness if the crime is so trivial that it should not be threatened with punishment according to the objective standards of fairness

= If the perpetrator did not know of the triviality and thus subjectively thought it was a serious crime, he should be found

guilty of an attempt to commit the crime

Steyn self-defence

Van Wyk

Goliath necessity

Mandela

Canestra Impossibility

Mohale superior orders

Williams disciplinary chastisement

Nkwanyana Consent

Kgokgong de minimus non curat lex

MODULE 6:

Criminal

accountability

Meaning of the concept of criminal accountability Difference between involuntary conduct and criminal accountability Test for criminal accountability Meaning of diminished accountability The 4 defences of unaccountability Psychopathy: defence of not? Voluntary intoxication: defence or not? CASE LAW

You have the capacity to be held accountable

(def) “To have criminal capacity a person must have the following mental abilities: 1. the ability to appreciate the wrongfulness of his conduct; and 2. the ability to conduct himself in accordance with such an appreciation of the wrongfulness of his conduct”

When conduct cannot be controlled by the will it is involuntary If X’s conduct is involuntary it means that X is not the author of the act/ omission – X did not commit the act, it happened to him

If conduct is involuntary it EXCLUDES CRIMINAL LIABILITY and it is not necessary to deal with the other elements of a crime

Some defences may exclude conduct and capacity. Eg. Intoxication (depending on the degree…case?)

2 leg test Provided by S78(1) of the CPA A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or defect which makes him incapable – (a) of appreciating the wrongfulness of his act or omission; or (b) of acting in accordance with an appreciation of the wrongfulness of his act or omission, Shall not be criminally responsible for such act or omission.

= when the ability to distinguish between right and wrong and the ability to exercise self-control over behaviour are not totally absent, but are clouded or impeded as the result of one or other circumstance

Provided for in S78(7) of the CPA

ONLY INFLUENCES PUNISHMENT (mitigating factor)

4

1.Youth 2.Mental illness 3.Intoxication 4.Provocation, emotional stress and non-

pathological criminal unaccountability

NOT regarded as a mental illness or disease which on its own leads to unaccountability

Pshychopathy combined with other mitigating circumstances may give rise to extenuation of punishment (same as?)

It was not in terms of the common law but the Chretien case changed the position of the law

How?

Mnisis

[diminished accountability] F Pietersen

[2 youth] Kavin Stellmacher McBride

[3 mentall illness] Johnson Chretien September

[3 intoxication] Campher Wiid Moses Eadie

[4 provocation, emotional stress and non- pathological provocation]

MODULE 7:

fault

Forms of fault (broad culpa) Difference between dolus directus, dolus indirectus, dolus eventualis and dolus indeterminatus + (example) Aberration ictus and versari in re illicit Error of fact and error of law Test to determine negligence Statutory crimes not defining the type of fault required CASE LAW

1. Intent (dolus) - “state of mind of an accountable perpetrator to want to perform an unlawful act within the knowledge that it is unlawful” Two very distinct elements to intention from this definition: 1. will (cognitive) 2. knowledge of unlawfulness (conative) 4 types of dolus 2. Negligence (narrow culpa) - “a blameworthy careless state of mind”

Dolus Directus = direct intention or actual intention

The intention to kill and the object coincide

Dolus Indirectus = indirect intention or intention with the knowledge of certainty

Where the accused FORESAW THE UNLAWFUL CIRCUMSTANCES OR THE CONSEQUENCES AS CERTAIN or substantially certain to occur

IOW A had intention with knowledge of certainty

Dolus Eventualis = intention with knowledge of possibility

Where the accused FORESEES THE POSSIBILITY THAT THE PROHIBITED CONSEQUENCES might occur in substantially the same

manner in which it actually does occur or the prohibited circumstance exist and he or she accepts this possibility into the

bargain

Dolus Indeterminatus or Dolus Alternativus = unspecified or indifferent intention

The accused does not have a specific victim in mind foresaw the possibility of killing people and recklessly proceeded

[NOTE!!! Dolus indeterminatus could be considered a subdivision of dolus eventualis OR of dolus directus]

AL = going astray of a blow Not the same as error of fact Why? The object which was aimed at was hit and thus the perpetrator only erred in respect to the identity of the object = error in objecto

VIRI A person committing an unlawful act is responsible for all the unlawful actions flowing from that original action REJECTED IN THE DECISIONS OF S V VAN DER MESCHT AND IN S V BERNARDUS (eggskull) = the perpetrator who commits an unlawful act is held liable for all the unlawful consequences flowing from the action Irrespective of whether or not they foresaw this or not Irrespective of whether the reasonable person would have foreseen this

ERROR OF FACT

You cannot be found guilty of an intentional crime where knowledge of unlawfulness and intention are excluded by a substantial error An error is substantial when it relates to an element of the (specific) crime Eg. Murder = “intentionally and unlawfully causing the death of another person” A further requirement to exclude intention is that the error must be bona fide The substantial, bona fide error must also be reasonable (objective) ERROR OF LAW

Before 1977 this was not accepted in our law and the maxim “ignorantia iuris neminem excusat” was strictly upheld otherwise everyone would use the excuse of being ignorant of the law In 1977 the Appellate Division of the Supreme Court decide it could be an excuse as long as it was bona fide and reasonable If a person commits an error of law intentionally or negligently it cannot serve as a defence

The test for negligence is objective and is called the reasonable person test

Consequence crimes // non- consequence crimes

In consequence crimes the test is whether or not the reasonable person would have foreseen the possibility of the consequences and prevented those consequences in the circumstances wherein the accused found himself

In non consequence crimes the test is whether or not the reasonable person would have abstained from the action in the circumstances wherein the accused found himself

Obviously in conflict with the maxim nulla poena sine culpa

Fault thus became a matter of interpretation

How? 1. the language and context of the prohibition 2. the ease with which the provision could be evade when intention is the only required form of fault 3.the reasonableness or not thereof if negligence is regarded as the sufficient form of fault 4. the degree of caution required by the law * the purpose and scope of the statute; and * the nature of the punishment which could be imposed

Hartman

De Oliviera

[2 intention] De Blom

[error of law] Mkansi Raisa

[2 aberratio ictus] Van der Mescht Bernardus Ngema

[3 negligenced] Amalgamated Beverage Industries

[strict liability]

For the exam prep sessions ( 2 May 2013 )

Prepare the exercise questions (under “Exam Prep”) on the Legal Practice website

http://longarmofthelaw.weebly.com/ and bring it to class for a discussion.

If you do not prepare beforehand, do not bother

coming to the prep session