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Full Summary + Cases Criminal Law 171
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1. GENERAL INTRODUCTIONPrescribed Material:
Burchell Principles of Criminal Law:
- Pages 3 – 14
- Pages 49 - 63
1.1. What is Criminal Law?
Part of Public Law.
Public Law – Deals with relationship between State & subjects of the
State, different branches of the State & between States.
Types of Criminal Law:
o National Criminal Law.
o International Criminal Law.
Jurisdiction over genocide, crimes against humanity, war
crimes & crime of aggression.
Should complement national jurisdictions.
Cannot intervene where national criminal jurisdictions have
acted or are acting or where case is not of sufficient gravity.
o Trans National Criminal Law.
Prohibiting organised crime.
Body of law that provides for cooperation between states in
combating organised crime & terrorism.
Branch of the National Law that:
o Defines certain forms of conduct as a crime.
o Provides for punishment of those persons with criminal capacity
that unlawfully & with guilty mind commit crime.
Rights of arrested, detained & accused persons – S35 of Constitution.
1.1.1. Definition of a Crime
Conduct that society believes to be wrong / disapproves of.
I.e. Conduct the community thinks deserves punishment.
1.1.2. Definition of Punishment
Deprivation/infliction of harm/suffering on accused.
Gives expression of community’s disapproval/condemnation.
Why punish?
o Show action has consequence.
o Prevention of crime (deterrent).
o Rehabilitation/reform (embitterment).
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, o Retribution/revenge.
o “Restorative justice”? (restoring position prior to crime).
Restorative Justice
o Punishment was essentially seen as the deprivation of liberty,
property or the infliction of suffering and is traditionally regarded
as feature of criminal proceedings.
o Restorative justice processed that emphasis non-punitive/less
punitive resolutions of disputes are gaining support in SA.
o Involves essentially non-punitive resolution of disputes arising from
infliction of harm through process involving victim, offender,
community.
o Restore parties to prior condition that was disturbed by criminal
conduct.
1.1.3. Function of Criminal Law
Social mechanism to coerce members of society, through threat of pain
and suffering, to abstain from conduct harmful to society’s interests.
Aims to promote individual autonomy and the welfare of society (and its
members) by establishing and maintaining peace and order and
advancing human right
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,1.2. What is a Crime?
Conduct that harms the following interests:
1.2.1. Human/Civil Rights
Basic human rights in Chapter 2 of Constitution such as right to life,
bodily integrity, personal safety and property are protected.
Eg) Protect right to life by criminalising murder.
1.2.2. Individual Autonomy / Responsibility
Principle: Each person should be treated as responsible for his/her own
behaviour; subjective approach to SA criminal law (personal
circumstances around committing crime).
Exception: Mental illness, age (<10).
1.2.3. Collective Welfare
Statutory regulations that maintain standards of safety, health, welfare,
environment etc.
“Public welfare offences”.
Eg) Traffic Offences.
Criticism
o State is paternalistic: Often protection from harm for the individual
who is punished by the criminal prohibition.
o Is it justified to protect people against themselves?
1.2.4. Maintenance of the Government of the State
Crimes protecting interests pertaining to structures and institutions by
which government is carried on.
Examples: Treason, sedition protects the government against
unconstitutional subversion and overthrow (e.g. coup d’etat), contempt
of court, corruption.
1.2.5. Public Sensibilities / Morality
Cultural and religious beliefs and values
o Importance is endorsed by invoking the criminal sanction against
conduct threatening such values
Examples: Incest, flashing in public
Criticism
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, o Should criminal law be used to punish “immorality” merely because
it is immorality (i.e. conduct that is otherwise not harmful to
others)?
o Also: Whose morality is to be enforced?
1.3. Criminalisation
Criminalisation is a process whereby a competent lawmaker defines and
prohibits a conduct as crime so as to express societal condemnation,
sometimes to such a degree as to over-criminalise.
Term used referring to decision to proscribe (prohibit) conduct as a
crime.
Q: What is the difference between common law and statutory crimes?
1.3.1. Common Law Crimes
Have existed from earliest times – come from old SA legal sources.
Found in Roman Dutch, Roman and English Law.
Closed list: No new crimes can be added/created/declared.
Serious crimes against the person, property and interests of the state.
Examples: Murder, rape, bestiality, fraud.
Legislature can remove common law crimes e.g. homosexuality and
adultery used to be common law crimes.
1.3.2. Statutory Crimes
Enacted by legislature/parliament.
New types of conduct continue to be declared to be a crime.
N.B. all crimes must be tested against the Constitution (may not be
incompatible with it).
Q: Why is it not adequate to define crimes materially only?
1.3.3. Material Definition of a Crime
Inherent quality of “badness” decisive – conduct regarded as morally
wrong.
o BUT:
o Not all criminal conduct is morally wrong / “bad” (e.g. not paying
tax, putting seatbelt on).
o Not all morally wrong conduct is punishable as a crime.
Acts that are harmful to society
o BUT:
o Not all crimes cause harm (e.g. smoking dagga).
o Not all harmful conduct is punishable as a crime.
Conclusion
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