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CRW2601
Study unit 1:
1.1 The four elements of criminal liability –
There is an act or conduct:
o First step is to enquire whether X is criminally liable: was there conduct on
the part of X.
o Conduct meaning ACT or OMISSION.
o The requirement of liability is mostly referred to as the requirement of an
act.
o Conduct can only be liability if it is voluntary.
o Conduct is voluntary if X is capable of subjecting his bodily or muscular
movements to his will or intellect.
o An omission (that is, a failure by X to act positively) can lead to liability
only if the law imposed a duty on X to act positively and X failed to do so.
Compliance with the defnitional elements of crime –
o It is the concise defnition of the type of conduct and the circumstances in
which that conduct must take place in order to constitute an ofence.
o The conduct must fulfl the defnitional elements or the defnitional
elements must be realised.
Unlawfulness –
o In this context means not merely the rule contained in the defnitional
elements, but the totality of the rules of law, and this includes rules that, in
certain circumstances, allow a person to commit an act that is contrary to
the letter of the legal prohibition or norm.
o These situations are known as grounds of justifcation: self-defence etc.
Culpability –
o The culpability requirement means that there must be grounds upon which
X may personally be blamed for his conduct.
o Here the focus shifts from the act to the actor, that is, X himself -his
personal abilities and knowledge, or lack thereof.
o Two sub-requirements:
Criminal capacity – You must have certain mental abilities, (1) the
ability to appreciate the wrongfulness of his act (i.e. to distinguish
between “right” and “wrong”) and (2) the ability to act in
accordance with such an appreciation
Intention or negligent - Intention is a requirement for most ofences,
but there are also ofences requiring only negligence.
Study unit 2: The principals of legality
2.2 – The concept of legality
In determining criminal liability, frst question is: whether the type of conduct
allegedly committed by such person is recognised by the law as a crime.
2.3 - Defnition and contents of the principal:
2.3.1 Defnition:
An accused may
(1) not be convicted of a crime –
(a) unless the type of conduct with which she is charged has been
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recognised by the law as a crime
(b) in clear terms
(c) before the conduct took place
(d) without it being necessary to interpret the words in the defnition
of
the crime broadly in order to cover the accused’s conduct; and
(2) if convicted, not be sentenced unless the sentence also complies with
the
four requirements set out above under 1(a) to (d)
2.3.2 Rules embodied in the principal: (5 RULES)
(1) A court may fnd an accused guilty of a crime only if the kind of act performed
is recognised by the law as a crime – in other words, a court itself may not
create a crime. This is the ius acceptum rule.
o The ius acceptum rule applies to common law and statutory law.
o You may not be convicted of a crime if it was not a crime at the time the
act took place.
Common law crimes application: A crime cannot be created even if
the court believe under good morals that it should be a crime
(Case: M 1915 CPD 334, Kotze J)
Statutory law crimes application: In this regard, it is feasible to
distinguish between a legal norm, a criminal norm and a
criminal sanction in an Act.
A legal norm in an Act is a provision creating a legal rule
that does not simultaneously create a crime.
A criminal norm in an Act is a provision that makes it clear
that certain conduct constitutes a crime.
A criminal sanction is a provision in an Act stipulating
what punishment a court must impose after it has convicted
a person of that crime.
o Punishment:
punishment must be recognised and prescribed by law; courts may
not create punishment
(2) A court may fnd an accused guilty of a crime only if the kind of act performed
was recognised as a crime at the time of its commission. This is the ius
praevium rule.
o The Constitution of the Republic of South Africa, 1996 contains a provision
that expressly sets out the ius praevium rule. Section 35(3) of this Act
provides that every accused has a right to a fair trial, and paragraph (l) of this
subsection provides that this right to a fair trial includes the right not to be
convicted of an ofence in respect of an act or omission that was not an
ofence under either national or international law at the time it was committed
or omitted.
o Punishment:
punishment that is increased after the commission of a crime may not
be imposed to the detriment of an accused (s 35(3)(n))
(3) Crimes ought not to be formulated vaguely. This is the ius certum rule.
o Punishment:
punishment ought to be defned clearly and not vaguely no express
provision, but can be inferred from the general, right to a fair trial
guaranteed in s 35(3)
(4) A court must interpret the defnition of a crime narrowly rather than broadly.
This is the ius strictum rule.
o Punishment:
courts should interpret the description of punishment strictly no
express provision, but can be inferred from the general right to a fair
trial guaranteed in s 35(3)
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(5) After an accused has been found guilty, the above-mentioned four rules must
also be applied when it comes to imposing a sentence; this means that the
applicable sentence (regarding both form and extent) must already have been
determined in reasonably clear terms by the law at the time of the commission of
the crime, that a court must interpret the words defning the punishment narrowly
rather than broadly, and that a court is not free to impose any sentence other
than the one legally authorised. This is the nulla poena sine lege rule, which can
be further abbreviated to the nulla poena rule.
Study unit 3: THE ACT
3.1 The act -
3.1.1 Thoughts not punishable:
o X must have started converting his thoughts into action before the conduct can
be criminal liability.
3.1.2 Act must be a human act or omission
o Act must be conducted by a human.
o A human being can, however, be punished if he commits a crime through the
agency of an animal, for example where he urges his dog to bite someone
(Eustace 1948 (3) SA 859 (T); Fernandez 1966 (2) SA 259 (A)).
3.1.3 Act or conduct must be voluntary:
o The conduct is voluntary if X is capable of subjecting his bodily movements to his
will or intellect.
o Factors that exclude the voluntariness of the act –
Absolute force: This situation must be distinguished from one involving
relative force (vis compulsiva), where X is indeed in a position to refrain
from committing the harmful act, but is confronted with the prospect of
sufering some harm or wrong if he does not commit it. The essential
diference between absolute and relative force lies in the fact that absolute
force excludes X’s ability to subject his bodily movements to his will or
intellect, whereas this ability is left intact in cases of relative force.
Relative force is therefore aimed at infuencing X to behave in a certain
way, although it remains possible for him to behave diferently.
Natural force: The voluntary nature of an act may, in the second place,
be excluded if a person is propelled by natural forces, thereby causing
others damage.
Automatism: Conduct is not seen a voluntary when it is performed in an
mechanical fashion; refex movements such as heart palpitations or a
sneezing f t; somnambulism; muscular movements such as an arm
movement of a person who is asleep, unconscious, hypnotised or having a
nightmare; an epileptic f t; or a so-called blackout.
Sane - refers to cases in which X relies on the defence that there
was no voluntary act on his part because he momentarily acted
“like an automaton”. This is the defence discussed above. X does
not rely on mental illness (“insanity”) as a defence.
Insane automatism - refers to cases in which X relies on the
defence of mental illness (“insanity”). In other words, he does
not rely on the defence of absence of a voluntary act. Here, it is not
a matter of the defence of “automatism” discussed above. The
expression “insane automatism” is actually misleading, because it
erroneously creates the impression that it involves the defence of
automatism, whereas, in fact, it is a completely diferent defence,
namely that of mental illness.
Differences:
The first difference relates to onus of proof.
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CRW2601
Study unit 1:
1.1 The four elements of criminal liability –
There is an act or conduct:
o First step is to enquire whether X is criminally liable: was there conduct on
the part of X.
o Conduct meaning ACT or OMISSION.
o The requirement of liability is mostly referred to as the requirement of an
act.
o Conduct can only be liability if it is voluntary.
o Conduct is voluntary if X is capable of subjecting his bodily or muscular
movements to his will or intellect.
o An omission (that is, a failure by X to act positively) can lead to liability
only if the law imposed a duty on X to act positively and X failed to do so.
Compliance with the defnitional elements of crime –
o It is the concise defnition of the type of conduct and the circumstances in
which that conduct must take place in order to constitute an ofence.
o The conduct must fulfl the defnitional elements or the defnitional
elements must be realised.
Unlawfulness –
o In this context means not merely the rule contained in the defnitional
elements, but the totality of the rules of law, and this includes rules that, in
certain circumstances, allow a person to commit an act that is contrary to
the letter of the legal prohibition or norm.
o These situations are known as grounds of justifcation: self-defence etc.
Culpability –
o The culpability requirement means that there must be grounds upon which
X may personally be blamed for his conduct.
o Here the focus shifts from the act to the actor, that is, X himself -his
personal abilities and knowledge, or lack thereof.
o Two sub-requirements:
Criminal capacity – You must have certain mental abilities, (1) the
ability to appreciate the wrongfulness of his act (i.e. to distinguish
between “right” and “wrong”) and (2) the ability to act in
accordance with such an appreciation
Intention or negligent - Intention is a requirement for most ofences,
but there are also ofences requiring only negligence.
Study unit 2: The principals of legality
2.2 – The concept of legality
In determining criminal liability, frst question is: whether the type of conduct
allegedly committed by such person is recognised by the law as a crime.
2.3 - Defnition and contents of the principal:
2.3.1 Defnition:
An accused may
(1) not be convicted of a crime –
(a) unless the type of conduct with which she is charged has been
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recognised by the law as a crime
(b) in clear terms
(c) before the conduct took place
(d) without it being necessary to interpret the words in the defnition
of
the crime broadly in order to cover the accused’s conduct; and
(2) if convicted, not be sentenced unless the sentence also complies with
the
four requirements set out above under 1(a) to (d)
2.3.2 Rules embodied in the principal: (5 RULES)
(1) A court may fnd an accused guilty of a crime only if the kind of act performed
is recognised by the law as a crime – in other words, a court itself may not
create a crime. This is the ius acceptum rule.
o The ius acceptum rule applies to common law and statutory law.
o You may not be convicted of a crime if it was not a crime at the time the
act took place.
Common law crimes application: A crime cannot be created even if
the court believe under good morals that it should be a crime
(Case: M 1915 CPD 334, Kotze J)
Statutory law crimes application: In this regard, it is feasible to
distinguish between a legal norm, a criminal norm and a
criminal sanction in an Act.
A legal norm in an Act is a provision creating a legal rule
that does not simultaneously create a crime.
A criminal norm in an Act is a provision that makes it clear
that certain conduct constitutes a crime.
A criminal sanction is a provision in an Act stipulating
what punishment a court must impose after it has convicted
a person of that crime.
o Punishment:
punishment must be recognised and prescribed by law; courts may
not create punishment
(2) A court may fnd an accused guilty of a crime only if the kind of act performed
was recognised as a crime at the time of its commission. This is the ius
praevium rule.
o The Constitution of the Republic of South Africa, 1996 contains a provision
that expressly sets out the ius praevium rule. Section 35(3) of this Act
provides that every accused has a right to a fair trial, and paragraph (l) of this
subsection provides that this right to a fair trial includes the right not to be
convicted of an ofence in respect of an act or omission that was not an
ofence under either national or international law at the time it was committed
or omitted.
o Punishment:
punishment that is increased after the commission of a crime may not
be imposed to the detriment of an accused (s 35(3)(n))
(3) Crimes ought not to be formulated vaguely. This is the ius certum rule.
o Punishment:
punishment ought to be defned clearly and not vaguely no express
provision, but can be inferred from the general, right to a fair trial
guaranteed in s 35(3)
(4) A court must interpret the defnition of a crime narrowly rather than broadly.
This is the ius strictum rule.
o Punishment:
courts should interpret the description of punishment strictly no
express provision, but can be inferred from the general right to a fair
trial guaranteed in s 35(3)
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(5) After an accused has been found guilty, the above-mentioned four rules must
also be applied when it comes to imposing a sentence; this means that the
applicable sentence (regarding both form and extent) must already have been
determined in reasonably clear terms by the law at the time of the commission of
the crime, that a court must interpret the words defning the punishment narrowly
rather than broadly, and that a court is not free to impose any sentence other
than the one legally authorised. This is the nulla poena sine lege rule, which can
be further abbreviated to the nulla poena rule.
Study unit 3: THE ACT
3.1 The act -
3.1.1 Thoughts not punishable:
o X must have started converting his thoughts into action before the conduct can
be criminal liability.
3.1.2 Act must be a human act or omission
o Act must be conducted by a human.
o A human being can, however, be punished if he commits a crime through the
agency of an animal, for example where he urges his dog to bite someone
(Eustace 1948 (3) SA 859 (T); Fernandez 1966 (2) SA 259 (A)).
3.1.3 Act or conduct must be voluntary:
o The conduct is voluntary if X is capable of subjecting his bodily movements to his
will or intellect.
o Factors that exclude the voluntariness of the act –
Absolute force: This situation must be distinguished from one involving
relative force (vis compulsiva), where X is indeed in a position to refrain
from committing the harmful act, but is confronted with the prospect of
sufering some harm or wrong if he does not commit it. The essential
diference between absolute and relative force lies in the fact that absolute
force excludes X’s ability to subject his bodily movements to his will or
intellect, whereas this ability is left intact in cases of relative force.
Relative force is therefore aimed at infuencing X to behave in a certain
way, although it remains possible for him to behave diferently.
Natural force: The voluntary nature of an act may, in the second place,
be excluded if a person is propelled by natural forces, thereby causing
others damage.
Automatism: Conduct is not seen a voluntary when it is performed in an
mechanical fashion; refex movements such as heart palpitations or a
sneezing f t; somnambulism; muscular movements such as an arm
movement of a person who is asleep, unconscious, hypnotised or having a
nightmare; an epileptic f t; or a so-called blackout.
Sane - refers to cases in which X relies on the defence that there
was no voluntary act on his part because he momentarily acted
“like an automaton”. This is the defence discussed above. X does
not rely on mental illness (“insanity”) as a defence.
Insane automatism - refers to cases in which X relies on the
defence of mental illness (“insanity”). In other words, he does
not rely on the defence of absence of a voluntary act. Here, it is not
a matter of the defence of “automatism” discussed above. The
expression “insane automatism” is actually misleading, because it
erroneously creates the impression that it involves the defence of
automatism, whereas, in fact, it is a completely diferent defence,
namely that of mental illness.
Differences:
The first difference relates to onus of proof.
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