The notes cover all the work for the first-semester test including summaries of case law and explanatory notes. The notes cover study theme 1: incomplete crime, study theme 2: doctrine of participation and study theme 3: crimes against life.
These notes were compiled in 2020 and thus may need some...
• There are three incomplete offences/ inchoate offences
o Attempt;
o Conspiracy; and
o Incitement
• Thus far we have only dealt with criminal liability where the crime was completed – e.g. X
murdered Y
• It is, however, NOT only completed crimes that are punished but also cases where X attempted to
complete the crime or incited another to commit the crime or conspired with another
o Criminal law does NOT only punish complete crimes but also punishes
preceding/anticipatory conduct – things that happen in anticipation of a completed crime
• The rationale for its existence can be traced back to the preventative theory of punishment as well
as the retributive theory
o Retribution theory – mere thoughts are NOT punishable – damage/real prejudice required –
talio principle
o Actually part of rehabilitation theory, prevention and deterrence
• Why does the law punish incomplete crimes?
o It leads to better law enforcement – the police will NOT have to wait until the victim is dead
before they can arrest
o People who commit these incomplete crimes pose as much danger to society as do those
who commit completed crimes
• PUNISHMENT:
o Punishable with the same sentence as though the crime has been completed
o In practice, however, usually more lenient sentence as the completed crime – theory of
retribution
• Incomplete crimes are independent crimes
o Incomplete crimes are FORMALLY DEFINED crimes – the result or consequence is irrelevant
– the conduct itself is punished
• These crimes do NOT exist in the abstract but always with reference to the commission of a specific
offence
o It means one can never be guilty of ATTEMPT only – it is always “attempted murder” or
“incitement to fraud” or “conspiracy to commit high treason”
• Incitement, then conspiracy, then attempt, but attempted incitement and attempted conspiracy
possible
o Can be guilty of an attempted conspiracy to commit murder or conspiracy of incitement to
commit rape
• Also often referred to as anticipatory crimes – In anticipation of the commission of the main crime
1
,Attempt
General
• Rationale – retributive theory
• Punished in terms of Rioutous Assemblies Act 17 of 1956 – section 18(1) – Mere thoughts are NOT
punishable – X must perform some act to complete the crime
o Section 18(1) – Any person who attempts to commit any offence against a statute or a
statutory regulation shall be guilty of an offence and, if no punishment is expressly provided
thereby for such an attempt, be liable on conviction to the punishment to which a person
convicted of actually committing that offence would be liable
• Can receive same punishment as completed crime
• X first INCITES then CONSPIRES then ATTEMPTS
Forms of Attempt
• Completed Attempt:
o X does everything from his side but
o Due to lack of skill; or
o Lack of foreseeability; or
o Other unforeseen occurrence/event/hindrance/obstacle
o The intended consequence does NOT ensue / the crime is NOT completed
o X has done everything that he wanted to do, to commit the crime, but then the crime is
never completed
o Subjective approach – look at X’s intention – punish the guilty state of mind
o Note the test is NOT has he done everything he could have done
o Example – I am short of money and write a letter to you saying NO one will pass criminal law
unless you give me R 500. Due to a strike at the post office the letter never reaches you. I
have done everything I wanted to do. But the crime is never completed.
o Laurence 1975 (4) SA SA 825 (A)
▪ Laurence was a journalist in Johannesburg
▪ He conducted an interview with S
▪ S was a so called “prohibited person” (terrorist)
▪ Laurence writes an article based on that interview with the prohibited person
▪ He then mails the letter to his friend in London, C.
▪ He arranges for C to take the article to L
▪ L is a journalist working for a UK newspaper – “The Observer”
▪ BUT before C could give the article to L the article is intercepted by the police.
▪ Based on these facts: Laurence = guilty of a completed attempt to contravene the
Suppression of Communism Act
▪ Why is it a completed attempt? Because Laurence has done everything that he
wanted to do
o Mshumpa 2008 (1) SACR 126 (E)
▪ On Valentine’s day February 2006 in Southernwood East London, Melissa Shelver
and David Best saw the gynaecologist because Melissa was 8 months pregnant with
Baby Jenna-May
▪ As they got into their car, the accused got into the back seat and threatened him at
gun point to drive
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, ▪ David was wounded in the shoulder and the accused shot Melissa twice in the
stomach, the baby was still born
▪ David was ALSO involved with Tanya Jacoby – that is why he wanted to get rid of the
baby, so that he could have his relationship with Tanya
▪ David therefore staged the whole thing and paid the accused to shoot the baby
▪ Mshumpa and David Best were both guilty of completed attempted murder on
Melissa
▪ Mshumpa got 15 years imprisonment, David Best got 21 years imprisonment
▪ They had done everything they wanted to do to Melissa.
• Incomplete Attempt:
o 2 forms:
▪ Interrupted attempt
• Objective approach – we look at it from an outside perspective to decide
whether it was an incomplete attempt
• Distinction is made between acts of preparation and acts of
consummation/execution – as stated in R v Schoombie “the end of the
beginning or the beginning of the end” distinction necessary; only acts that
have gone over onto acts of consummation are punishable as attempt – wide
interpretation and factual assessment
• When an act of preparation will enter the realm of becoming an act of
consummation is a factual inquiry – only acts of consummation are
punishable
• Example X wants to set fire to his office building – when he merely buys the
explosives or matches it still amounts to acts of preparation, but the moment
he wants to light a match and is interrupted by the police his acts have
moved to acts of consummation
• Factors to distinguish between preparation and consummation:
o Physical proximity between X and the scene of the crime
o The lapse of time between when X was arrested and when the crime
would have been completed
• Schoombie 1945 AD 541
o Schoombie owned a shop in Pretoria West in Church Street
o He wanted to burn down the shop to defraud the insurance company
o Schoombie went to the shop and poured petrol on the door and
underneath the door
o He had a tank with a candle in it.
o Just before he could light it, he was arrested by constable Elias
o On these facts, Schoombie is guilty of attempted arson
o Why? Because he was already busy with acts in execution
o We know this by applying the two factors
▪ Proximity – he was already there at the shop
▪ It was a matter of seconds before he would have completed
the crime
o Court held that the moment an act of preparation becomes unlawful
it becomes an act of consummation
3
, • Du Plessis
o A man wrote a book about the revolution war that contravened the
Official Secrets Act.
o He sent the book to the legal advisors and it was intercepted by the
police.
o The court held that in determining whether an act is one of
consummation an objective/factual enquiry needs to be done into the
particular facts of the case and the following factors need to be
considered:
▪ If at the time of the interruption the accused had the intention
to commit the crime;
▪ The degree of proximity or remoteness that the conduct had
to what would have been the final crime; and
▪ A factual consideration
o Court held that by sending the manuscript to the legal advisors he
voluntarily withdrew publishing the book and this interrupted his
attempt
o Question: at what stage can an accused still voluntary change his
mind and NOT be criminally liable?
▪ Court held that if a person voluntarily withdrawals before the
act becomes an act of consummation such an act is NOT
punishable as an attempt.
▪ However, once the person has started with the act of
consummation and then withdrawals it will be too late, and
they will be guilty of an attempt to commit a crime
o When does it go over to an act of consummation?
1. Factual enquiry
2. All the circumstances of the case—wide interpretation
3. The accused made up her mind to commit the crime (intention
must be there at the time of the interruption)
4. The proximity (or remoteness) of the arrested conduct and the
intended final conduct (TIME and CONDUCT)
5. Practical considerations of common sense (natural
consequences, and control over situation?)
6. NO more precision than this will be achieved
7. If voluntary withdrawal—look at final intention before
withdrawal—if NO such intention then NOT consummation and
thus NOT attempt
8. We look at a series of acts, if NOT interrupted, it would lead to
the final intended result
• Nango 1990 (2) SACR 450 (A)
o A few policemen were looking for a group of criminals
o The policemen entered an empty building.
o Suddenly they were overpowered by a group of 20 – 30 criminals.
o One policeman, Welgemoed, fell down
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