CRW2601 EXAM PREP - General Principles Of Criminal Law
STUDY UNIT 1
Let’s apply this simple principle to a concrete set of facts: Assume X is charged with having assaulted Y. The evidence relied upon by the prosecution to prove the charge reveals that one night while X was walking in his sleep,...
Let’s apply this simple principle to a concrete set of facts: Assume X is charged with having assaulted
Y. The evidence relied upon by the prosecution to prove the charge reveals that one night while X was
walking in his sleep, he trampled upon Y, who happened to be sleeping on the fl oor. Has X committed
assault?
FEEDBACK The answer is obviously “no”, on the following grounds: Because X was walking in his
sleep, his act was not voluntary – in other words, while sleepwalking, he was not able to subject his
bodily movements to his will or intellect. Because there was no act, he is not guilty of assault. (Or, to
make use of the metaphor in the illustration above, there was no table for the boy to use and, therefore,
any attempt by him – even with the aid of a chair and a stick – to retrieve his kite would be fruitless.) It
is unnecessary to enquire whether, for example, X’s act was unlawful or whether he acted with intention
(culpability). From a systematic point of view, it would be unsatisfactory – and proof of unimpressive
legal thinking – to say that X escapes liability because he lacked the intention to assault. Such an
argument presupposes that there was a voluntary act on the part of X – which is patently incorrect.
TEST YOUSELF
(1) Name the four elements of criminal liability.
(2) Briefl y discuss each of the four elements of criminal liability.
(3) Should the investigation into the presence of the four elements of liability follow a prescribed
sequence? Explain.
STUDY UNIT 2
Assume the South African parliament passes a statute in 2004, which contains the following provision:
“Any person who commits an act which could possibly be prejudicial to sound relations between
people, is guilty of a crime. This provision is deemed to have come into operation on 1 January 1995.”
No punishment is specified for the crime. Do you think that this provision complies with the principle of
legality?
FEEDBACK You should have considered whether the provision complies with all the rules embodied in
the principle of legality. The provision complies with certain aspects of the ius acceptum rule. It is
clearly stated in the provision that the conduct prohibited is a “crime”. This means that the provision
contains a criminal norm. (Look again at the train-ticket example above if you still do not understand the
difference between these norms.) However, the maximum punishment that may be imposed is not
prescribed in the provision. Therefore, the ius acceptum rule has not been fully complied with. The
provision does not comply with the ius praevium rule because the crime is created with retrospective
effect. The provision also does not comply with the ius certum rule because it is formulated in vague
and uncertain terms. The phrase “possibly prejudicial to sound relations” is very wide and does not
indicate exactly what type of conduct is prohibited. Does it refer to “sound relations” in the family
context or in the workplace, or to relations between people of different cultures or races? The ius
,strictum rule further requires that an act that is ambiguous be interpreted strictly. In practice, this means
that a court may not give a wide interpretation of the words or concepts contained in the defi nition of
the crime. A provision that is very wide and vague should be interpreted in favour of the accused. It
follows that the provision does not comply with the principle of legality.
TEST YOURSELF
(1) Define the principle of legality.
(2) Name the five rules embodied in the principle of legality (refer to the Latin terms).
(3) Discuss the role of the ius acceptum rule in determining whether (a) conduct constitutes a crime in
terms of the common law
(b) a statutory provision has created a crime (4) Distinguish between a legal norm, a criminal norm and
a criminal sanction.
(5) With reference to the decision of the Supreme Court of Appeal in DPP v Prins, discuss how our
courts should determine whether a statutory offence has been created if there is no punishment
prescribed for the offence in the particular legislation.
(6) Define the ius praevium rule.
(7) (a) Define the ius certum rule
(b) Is the ius certum rule entrenched in the constitution? Motivate.
(8) Discuss the decision of the Constitutional Court in Masiya.
(9) Discuss the ius strictum rule. (10) Discuss the principle of legality in punishment.
STUDY UNIT 3
1. X, a 62-year-old man, works in a mine. His job is to operate the cocopans. These cocopans are used
to transport hard rocks and gravel from the bottom of the mine to the surface. One day, while working,
he suddenly experiences a blackout. In his state of unconsciousness, he falls on the lever that controls
the movement of the cocopans. A cocopan crashes into another worker, Y. Y is killed instantly. X is
charged with culpable homicide. The evidence before the court is as follows: X has been suffering from
diabetes for the past year. His doctor had warned him that he may lose consciousness at any time if he
fails to take his medication as instructed. On that particular day, X had failed to take his medication.
The court finds that X had insufficient grounds for assuming that he would not suffer a 35 blackout on
that particular day. X’s legal representative argues that X cannot be convicted of culpable homicide
because, at the time of the commission of the offence, he was not performing a voluntary act. In other
words, the defence raised is that of automatism. You are the state prosecutor. What would your
response be to this argument?
FEEDBACK You would rely on the decision in Victor 1943 TPD 77, arguing that this is a case of
antecedent liability. The voluntary act was performed at the stage when X, fully conscious, started
operating the cocopans. What the law seeks to punish is the fact that he (X), while in complete
, command of his bodily movements, commenced his inherently dangerous tasks at the mine without
having taken his medication. In so doing, he committed a voluntary act that set in motion a series of
events that culminated in the accident.
2. Y, a two-year-old child, goes to a nursery school. X, the teacher at the nursery school, often does her
washing and ironing while looking after the kids. One day, while ironing, the telephone rings. She runs
to answer the phone, failing to switch off the hot iron. While playing, Y accidentally pulls the cord of the
iron. The iron falls on top of his body. He is severely injured. X is charged with assault. As state
prosecutor, you have to prove that the accused had performed an act in the legal sense of the word.
Explain how you would go about proving this.
FEEDBACK You may argue that this is an instance where there was a legal duty upon X to take
positive action. More specifically, this duty arose from a previous positive act. In law, this is known as
an omissio per commissionem. See specific instance (6) listed above. The duty may also arise from the
fact that X stood in a protective relationship to Y (specific instance 5 listed above).
3. A municipal by-law stipulates that no homeowner may dump his garden refuse in public parks. The
conduct prohibited is defi ned as a crime and is punishable with a maximum fi ne of R2 000. X is
charged with this offence on the grounds that he dumped his garden refuse in a public park. X relies on
the defence of impossibility. He alleges that because there are no designated places in the
The act vicinity where he can dump his refuse, it was impossible for him not to commit this offence.
Discuss critically the merits of his defence.
FEEDBACK X’s defence has no merit. The defence of impossibility cannot be raised in cases where
certain conduct is prohibited by law. The defence may be pleaded only if the conduct that forms the
basis of the charge consists in an omission. In other words, if the provision stipulates “You may not ...”,
the defence of impossibility cannot be raised. Conversely, if it stipulates “You must ...” the defence may
be raised. Students often have diffi culty in understanding this. The basis of the charge against X was
not a failure (omission) to do something. A positive act (commissio) by X formed the basis of the
charge. Also read the leading case in this regard, namely the decision in Leeuw.
TEST YOURSELF
(1) Define the concept of an “act” and provide practical examples of an act in the legal sense of the
word.
(2) What is the difference between the meaning of the word “act”, as this word is used in everyday
parlance, and the technical meaning it bears in criminal law?
(3) Briefl y explain the meaning of the requirement that the act must be a human act.
(4) Fill in the missing words: Conduct is voluntary if X is capable of subjecting his ... … to his ... or ...
(5) Distinguish between the concepts “voluntary” and “willed”.
(6) Name three factors that exclude the voluntary nature of an act.
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