PBL 410
CRIMINAL LAW
University of Pretoria
,Introduction to Criminal Law
• Criminal law = national law = public law
• Criminal law forms part of substantive law
• Material vs procedural criminal law
o Substantive/material criminal law = dealing with the substantive rules of
criminal law, e.g. what is a crime?
▪ Explains rights and duties
▪ It is the legal rules setting out the rights and duties of legal subjects
▪ Material criminal law definition:
• Snyman:
o Legal rules setting out the rights and duties of subjects
or for the state
• Burchell:
o (Preferred definition because more comprehensive and
encompasses all elements of a crime)
▪ That branch of national law that defines certain
forms of human conduct as crimes and
provides for the punishment of those persons
who unlawfully and with a guilty mind commit
a crime
o The elements of criminal liability are seen in ‘unlawfully
and with a guilty mind.’
o The operation and purpose is seen in, ‘human conduct
as crimes and provide for the punishment of those
persons who commit a crime.’
o Procedural/formal criminal law = prescribes how it is enforced, e.g.
requirements for criminalisation
▪ Aka criminal law of evidence
▪ Explains procedure and proof (What must be proved?, Who is the
onus on?)
▪ It is the procedures governing the enforcement of rights and duties.
• Public vs private law
Private law Public Law
• Regulates the legal relationship • Regulates the legal relationship
between private individuals. between the state/public entities on a
• Parties are on equal footing horizontal application.
• Horizontal application. • BUT ALSO, between the state/public
entities as an authoritative power and
legal subjects of the state on a vertical
application e.g. Criminal law.
• State always a party
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,Elements of criminal liability - legaliteit
1. Act/omission (actus reus)
2. Causation
3. Unlawfulness/wrongfulness
4. Capacity
5. Fault (mens rea)
The Constitution of the Republic of South Africa
A. Impact of the constitution:
• Specific rights in the BOR relevant in the context of criminal law as evident
from the reported case law
o S 9: equality
o S 10: dignity
o S 11: life
o S 12: freedom and security of person
o S 14: Privacy
o S 15: Freedom of religion, belief and opinion
o S 16: Freedom of expression
o S 35: Detained and arrested persons
o All these rights are to be balanced in terms of the constitutional
construction with reference to the limitation clause (s 36) and the
interpretation clause (s 39)
▪ S 36 – limitation clause
• Not a closed list of rights
• Rights are NOT absolute – rights are qualified
• Derogation of some rights is permitted – meaning some
rights may be limited
o Non-derogable – state of emergency may NOT be
limited
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, o Some rights personally derogable
▪ I.e. you can personally limit or ‘waive’ them
▪ However, NOT all personal rights are
derogable
• E.g. right to life, dignity + security
CANNOT be subject to cruel
inhumane treatment – which is made
in medical / scientific experiments
• The alleged infringement of rights is subject to a general
inquiry by the Constitutional Court – which will inquiry into
the following:
▪ Has a right or freedom i.t.o BOR been
infringed?
▪ Is it in the law of general application?
▪ Is the limitation justified ito. s 36?
• Is the limitation justifiable in an open
democratic society based on human
dignity, equality and freedom?
▪ If yes to all = justifiable limitation
▪ S 39 – interpretation clause
• When interpreting the BOR must have regard to
international law + foreign law + develop common law in
line with Constitution
• 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 the right + enactment
• Must be interpreted to promote the value system of an
open and democratic society based on dignity, equality,
and freedom
• Any interpretation must be consistent with Constitution
• Specific capita from the criminal case law/legislation
punishment/sentencing:
o S v Makwanyane:
▪ Death penalty as a competent sentence for murder was declared
unconstitutional and against s 11 – right to life
o Criminal Law Amendment Act:
▪ The Act prescribes minimum sentences for certain crimes
▪ The Act imposes a minimum sentence of life imprisonment in
certain circumstances for crimes such as murder, rape, and
robbery with aggravating circumstances – the judicial officer may
only impose a lesser sentence if substantial and compelling
reasons exist
▪ S v Dodo –
• The constitutionality of the Act was questioned
• It was argued that the imposition of a minimum sentence
was it against section 35, the right to a fair trial
• The court held the Criminal Law Amendment Act is NOT
unconstitutional for imposing a minimum sentence for
certain crimes
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, • The imposition is NOT against s 35
B. Criminalisation and decriminalisation of certain crimes
• Decriminalisation of certain crime:
o National Coalition for Gay and Lesbian Equality v Minister of Justice
▪ Decriminalisation of the common crime of sodomy – against s 9
(equality), s 14 (privacy)
o The Choice of Termination of Pregnancy Act and Christian Lawyers
Association of SA v Minister of Health
▪ Decriminalisation of the crime of abortion (against s 12 – the right
to freedom and security of person) – s 11 did play a role as the
right to life does NOT include a foetus
o Case v Minister of Safety and Security; Curtis v Minister of Safety
and Security; Films and Publications Act
▪ Decriminalisation of possession of pornography (excluding child
pornography, bestiality and severe sexual violence) – against s 14
(privacy) and s 15 (freedom of opinion)
• De Reuck v DPP
o The provision against the distribution and
possession of child pornography was upheld as
constitutional.
o It was held that an image constituted child
pornography if the image was, objectively, viewed
to have an erotic rather than aesthetic purpose.
o Possibility of decriminalisation of passive/active euthanasia – against s 12
and justifiable limitation of s 11 – discussed in the SA Law Commission
Report
o Ex Parte Minister of Safety and Security: In re S v Walters
▪ Dealt with justifiable homicide
▪ The provision providing that a fleeing suspect may be shot and
killed was declared unconstitutional (this is dealt with in detail
later)
• Creation of new crimes and/or extension of existing crimes:
o S v Jordan
▪ Prostitution and keeping of a brothel in contravention of the
Sexual Offences Act
▪ Both still crimes – prostitution NOT unconstitutional and NOT
against s 9 but it is a crime in terms of the Criminal Procedure
Act
o Specific criminalisation of the possession of child pornography on the
internet – was incorporated in the Films and Publications Act
o S v Williams –
▪ Criminalisation of corporal chastisement by teachers – as it is
against s 10, s 12, s 26(1)(d)
▪ Held that the provisions of s 294 of the Criminal Procedure Act
(that provided for 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))
o Christian Education SA v Minister of Education
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, ▪ S 10 of the SA Schools Act – prohibits corporal punishment
▪ 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
▪ Decision:
• Rejected arguments
• Even if S 10 limited parents’ freedom of religion it
constituted a justifiable limitation in terms of section 36
• S 10 applies to all schools – private and public
o Amendment to the common law definition of rape in terms of s 3 of
Sexual Offences Act
▪ Definition is now:
• Gender neutral,
• Emphasis is now on “sexual penetration” and NOT “sexual
intercourse”
• Recognises male rape
▪ Criminalisation of certain indecent acts. E.g. forcing a person
under 18 to watch pornographic videos
o Criminalisation of HIV/AIDS related crimes? SA Law Commission Report
has discussed this
• Common law crimes challenged on the grounds that the crime itself is
unconstitutional
o Fraud:
▪ S v Friedman – NOT unconstitutional and NOT against s 35
• The court held that although the crime of fraud was broadly
defined, it was NOT too difficult or impossible to apply.
o Contempt of court:
▪ S v Mamabolo – NOT unconstitutional and NOT against s 16
(freedom of expression) to make contempt of court a crime – it is
important to protect the integrity of the administration of justice
o Doctrine of “Common Purpose”:
▪ Doctrine of common purpose: where two or more people agree to
commit a crime or actively associate in a joint unlawful venture,
each will be responsible for the acts of the others which fall within
their common purpose or design.
▪ The Doctrine was challenged in S v Thebus:
• CC said doctrine of common purpose is NOT
unconstitutional
o Bestiality:
▪ S v M – common law crime of bestiality is NOT unconstitutional
and NOT against s9(3), 12 and 14 of the BOR
• 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.
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, • Bestiality offends the boni mores and there is an inability
for the animal to consent.
• Constitutionality of presumptions of proof in statutory crimes (part of the
formal criminal law)
o Reverse onus – declared unconstitutional because s 35(3)(c) –
presumption of innocence
o S v Bhulwana + S v Gwadiso –
▪ Found S 21(1)(a)(i) of the Drugs and Drug Trafficking Act to be
unconstitutional = against s 35(3)(c) – presumption of innocence
▪ S 21(1)(a)(i) – stated that if an accused has been found in
possession of more than 115 grams of dagga, he or she will be
presumed to have been dealing in dagga and will be convicted of
the offence of dealing
o S v Manamela–
▪ S 37 of the General Law Amendment Act – it is an offence to
acquire stolen goods, other than at a public sale, without having
reasonable cause to believe that the person disposing of them is
entitled to do so (receiving stolen property without reasonable
cause) – reverses onus – requires accused to prove that he had
no such belief
▪ Court found – presumption NOT unconstitutional and NOT against
s 35
o S v Coetzee –
▪ S 245 Criminal Procedure Act – ‘in criminal proceedings where
an accused is charged with an offence of which a false
representation is an element and it is proved that the false
representation was made by the accused, he/she shall be deemed
to have made the representation knowing it to be false, unless the
contrary is proved.’
▪ Court held that the provision is unconstitutional – against s
35(3)(c) – presumption of innocence + required accused to prove
on a balance of probabilities an essential element of the offence
Criminal law and the law of delict
• Delict: an unlawful, blameworthy act or omission resulting in damage to another and
in a right on the part of the injured party to compensation
• Crime: an unlawful, blameworthy conduct punishable by the state
o Conduct that is legally forbidden which may only (in principle) be prosecuted
by the state and which always results in the imposition of punishment
• Similarities:
o Both deal with an unlawful, blameworthy acts or omissions
o One act can constitute a delict and a crime – but NOT all delicts are crimes
and most crimes are NOT delicts
• Differences:
o Formal differences
▪ Crime – regulated in terms of criminal procedure
▪ Delict – governed in terms of civil procedure
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, o Material differences
▪ Crime –
• Public law
• X infringes the public’s/states/community’s interest
• State prosecutes regardless of if the community wants to
pursue an action
o Person who suffered harm or injury as a result of the
commission of a crime does NOT decide whether or
NOT the offender should be criminally charged
o I.e. State may proceed with criminal charge even is
complainant begs them NOT to
• State prosecutes (possible for private prosecutions but
extremely rare)
• Sanctions: punishment (fine or imprisonment) is imposed on
him, with a view to retribution, the prevention of crime,
deterrence, or the rehabilitation of the offender
▪ Delict –
• Private law – particularly law of obligations
• X infringes Y’s private/individual interest
• Individual has a choice to pursue damages or not
• Individual institutes action herself
• Sanctions: compensation – guilty party must put complainant
in same position he would have been in had the delict NOT
been committed
CRIMES DELICTS
Directed against public interests. Directed against private interests.
Forms part of public law. Forms part of private law.
State prosecutes. Private party institutes action.
Results in the imposition of punishment by Results in the guilty party being ordered to
the state. pay damages to the injured party.
State prosecutes perpetrator irrespective Injured party can choose whether he
of the desires of private individual. wishes to claim damages or not.
Trial governed by rules of criminal Trial governed by rules of civil procedure.
procedure
The state must prove a case beyond A party has to prove his case on a
reasonable doubt. preponderance of probabilities.
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,The concepts ‘Criminal Law’ and ‘Crime’
• Criminal law = penal law
o That branch of national law that defines certain forms of human conduct as
crimes and provides for the punishment of those persons who unlawfully
and with a guilty mind commit a crime
• Crime = offence
o An unlawful, blameworthy conduct punishable by the state
o Conduct that is legally forbidden which may only (in principle) be prosecuted
by the state and which always results in the imposition of punishment
(No technical difference between crime and offence)
Determinism and Indeterminism
Deterministic and indeterministic school of thought
• Determinism: “Anatomy is destiny” – man is unable to rise above himself; his
actions are predetermined by his genetic make-up – conduct is a result of blind
causal processes
o This school of thought would erode the concept of culpability in SA criminal
law
▪ There would be no need for criminal law
▪ Person could NOT be punished for misconduct – a person would
have no control over the crimes committed – the whole basis of
criminal law would collapse if a strict deterministic view were adopted
o What about the mentally ill and children?
▪ e.g. 5-year-old pushes another child in a pool and the child drowns –
won’t be liable because of age - therefore determinism
▪ Someone suffers from mental illness and commits a crime – most
likely will NOT be charged but rather admitted to a psychiatric hospital
– determinism
• Indeterminism:
o Man has the ability to rise above the forces of blind causal determinism; he
has freedom of will and has the ability to control his impulses and
passions/emotions
o Therefore, if a person uses his mental powers to the full, he can comply with
the law and he can be held responsible for his actions
o Man is capable of meaningful self – realisation that is, of directing and
steering the course of his life in accordance with norms and values
o SA criminal law is based on indeterminism – indeterministic school of thought
• In practice:
o In legal practice, however, a mixed approach
▪ Can be argued we follow a mixed system – this would be the case
with children and mentally ill persons – then we follow a deterministic
school of thought
o Sane person who is no longer a child is held responsible for his deeds and
can be blamed for his misdeeds
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, o Culpability presupposes that man is free to overcome the limitations of his
nature and to choose whether or NOT to engage in conduct for which he will
be held liable
o Culpability is a prerequisite for liability
The purpose and function of criminal law and crime
• Protection of society
• Ensuring the Public Welfare
• Enforcement of the Boni mores
• Maintenance of the State
• Criminalisation vs decriminalisation
o Criminalisation = process in terms of which certain forms of conduct are
classified as a crime – new crimes/offences are formed
o Decriminalisation = a crime that currently exists is declared no longer to be a
criminal offence – e.g. no longer an offence to be in possession of weed for
private use
The Classification of criminal law and crimes
• General principals / specific offences
• Statutory/common law offences
o Statutory – offences found in legislation – specific acts that provide for
specific offences
o Common law – such as murder, assault – crimes that originated from
common law systems and are NOT provided for ito. a specific act
• Mala in Se / mala Prohibita
o Mala in Se – crimes that are inherently cruel and evil – fill public with a sense
of shock and distain – e.g. rape
o Mala Prohibita – also crimes but do NOT fill us with shock – e.g. speeding,
fraud – all prohibited acts but they are NOT inherently cruel or evil
• Protected Legal Interest
o Legal rights that are recognized by law and thus are protected by law e.g.
equality, human dignity, life
• Formally vs materially defined crimes
o Formally defined crimes – Certain types of crimes are prohibited irrespective
of the result; e.g. rape, perjury, possession of a weapon
o Materially defined crimes – The conduct itself is NOT criminal, but the result
of the conduct is; example murder, arson, culpable homicide
o E.g. If you throw a stone it is NOT illegal but if that stone hits and kills
someone (the result) then it is illegal
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