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Summary CRW2601 - General Principles Of Criminal Law (CRW2601)
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CRW2601History of South African criminal law
“Common-law” refers to those rules of law not
contained in an Act of parliament or in rules of
legislation by some other (subordinate) legislative
body. The common law of South Africa is Roman-Dutch law.
Criminal liability:
The four elements of criminal liability are:
(a) act or conduct
Since the punishment of omissions is more the exception than the rule, this requirement
of liability is mostly referred to as the “requirement of an act”.
Conduct can lead to liability only if it is voluntary.
(b) compliance with definitional elements
X’s conduct must comply with or correspond to the definitional elements of the crime in
question.
(c) unlawfulness
In this context means not merely the rule contained in the definitional elements, but the
totality of the rules of law which in certain circumstances allows a person to commit an
act that is contrary to the letter of the legal prohibition or norm.
Grounds of justification are private defence, necessity, consent, right of chastisement and
official capacity.
(d) culpability
There must be grounds upon which X may personally be blamed for his conduct.
Criminal capacity-(1) the ability to appreciate the wrongfulness of his
Act (distinguish between right and wrong) and
(2) The ability to act in accordance with such an appreciation.
People who lack criminal capacity are mentally ill persons and young children.
An act must be either intentional or negligent
(4) The investigation into the presence of the four elements of liability follows a certain
sequence, namely the sequence in which they were mentioned in (3) above
, CRW2601
Sequence of investigation into presence of elements
COMPLIES WITH AND THAT IS AND
CONDUCT
DEFINITIONAL UNLAWFUL CULPABLE
ELEMENTS OF CRIME
The concept of Legality
Whether the type of conduct allegedly committed by such person is recognised by the law
as a crime.
The principle of legality is contained in S 35(3) (1) of the Constitution of the Republic of
South Africa, 1996.
An accused may
1) Not be convicted of a crime-
(a) unless the type of conduct with which he/she is charged has been
recognised by the law as a crime
(b) in clear terms
(c) before the conduct took place
(d) without it being necessary to interpret words in the definition of the
crime broadly in order to cover the accused’s conduct and
2) if convicted, not to be sentenced unless the sentence also complies with the
four requirements set out above under 1(a) to (d)
Rules embodied in the principle
PRINCIPLE OF LEGALITY
IUS PRAVIUM NULLA POENA
IUS ACCEPTUM IUS STRICTUM SINE LEGE
Court may find IUS CERTUM
Court may find A court must After an accused
accused guilty
accused guilty Crimes ought interpret the has been found
of a crime only if
of a crime only if not to be definition of a guilty, the 4
it was
it is recognised formulated crime narrowly rules must have
recognised as a
by law as a vaguely rather than been applied
crime at time of
crime broadly when imposing
commission
a sentence
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