CRIMINAL LAW 171
TOPIC 1- Introduction
Criminal law: defines certain forms of human conduct as crimes and provides for punishment of
those persons with criminal capacity who unlawfully and with a guilty mind commit a crime.
Public Law – Deals with relationship between State & subjects of the State, different
branches of the State & between States.
Who does the punishing in criminal law? The state
Why only the state? prevent people from taking law into their own hands
** Rights of arrested, detained & accused persons – S35 of Constitution.
Definition of a crime: Conduct that society believes to be wrong / disapproves of. E.g.- Conduct the
community thinks deserves punishment.
Definition of a Punishment: deprivation of liberty, property or the infliction of suffering on the
accused thereby exacting revenge and expressing societal condemnation.
Punishment in order to inflict suffering thereby exacting revenge thereby
o expressing social condemnation
o prevent crime
o rehabilitate the criminal
o Retribution/revenge.
o achieve restorative justice
Restorative Justice
Punishment was essentially seen as the deprivation of liberty, property or the infliction of
suffering and is traditionally regarded as feature of criminal proceedings.
Restorative justice processed that emphasis non-punitive/less punitive resolutions of disputes
are gaining support in SA.
Involves essentially non-punitive resolution of disputes arising from infliction of harm through
process involving victim, offender, community.
Restore parties to prior condition that was disturbed by criminal conduct.
Elements of a crime: need to be proven in order for liability & punishment for a crime to take place.
When proving these elements, you have to go in order. If one cannot be proven: STOP.
1. Conduct
2. Causation
3. Unlawfulness
4. Criminal capacity
5. Fault
Function of Criminal Law
Social mechanism to coerce members of society, through threat of pain and suffering, to
abstain from conduct harmful to society’s interests.
, Aims to promote individual autonomy and the welfare of society (and its members) by
establishing and maintaining peace and order and advancing human rights.
Crim law is also there to protect values and interests of society
o Civil/Human rights (right to: life, property, bodily integrity)
o Individual autonomy and responsibility (person treated as responsible for his/her
behaviour)
o Collective/Public welfare (which risks paternalism)
o Maintenance of the government of the state (e.g.- treason)
o Morality (dynamic to match the changing values of society)
CRIMINIALISATION
Process whereby a competent lawmaker defines and prohibits conduct that is inherently bad or
harmful according to material definition as a crime so as to express social condemnation sometimes
to such a degree as to over-criminalise.
Force you to following the rules with the threat of punishment
Defining a crime focuses on the consequences of your conduct.
o Crime= the procedural definition is conduct for which the offender can be
punished/prosecuted
2 sources of competent law makers
1. Statutory law (legislation)
o Can override common law
o Any laws enacted/ originated from parliament
2. Common law: murder, theft etc.
o Originates from old SA legal sources such as Roman Dutch law etc.
Common Law Crimes
Come from old SA legal sources.
Found in Roman Dutch, Roman and English Law.
Closed list: No new crimes can be added/created/declared.
Legislature can remove common law crimes e.g. homosexuality and adultery used to be
common law crimes.
Statutory Crimes
Enacted by legislature/parliament.
New types of conduct continue to be declared to be a crime.
N.B. all crimes must be tested against the Constitution (may not be incompatible with it).
,Material Definition of a Crime
Inherent quality of “badness” decisive – conduct regarded as morally wrong.
Involves acts or omissions that are harmful to society
o BUT: Not all criminal conduct is morally wrong (e.g. tax evasion, speeding fine). Not
all crimes cause harm (e.g. smoking dagga).
Conclusion
o Impossible to identify typical characteristics that are inherently part of a crime.
o Society’s views of what is wrong and deserving of punishment varies according to time
and place and culture.
Procedural Definition of a Crime
If the consequence of particular act is prosecution and the infliction of punishment, then
conduct is a crime.
Thus, conduct is a crime because a competent law-making pronounced/defined it to be one
(not based on morality).
Over-criminalisation
Effects:
Lessening criminal laws authority (if anything is regarded as a crime it’s significance is
lessened)
Stigmatising individuals as criminals (social consequences come into play. E.g.- criminal
record. Remember that the stigma/social harm caused by criminalisation = the crime)
Encouraging crime (e.g.- illicit drugs: it’s illegality drives up prices thus there is more sellers.
And buyers may resort to crime to fund their addiction)
Overloading the criminal justice system (economic coast of this. should we use our limited
resources on the more serious/important cases?)
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TOPIC 2- Theories of punishment
Punishment theories are used to justify punishment for a crime. Gives state a right to infringe upon
the accused’s basic human rights: freedom of movement, privacy and dignity.
Punishments include:
Imprisonment
Paying a fine
Community service
Suspended sentence (you only get the punishment if you reoffend in the future. You will get
both the new sentence and the suspended one.)
When deciding on a punishment and applying the punishment theories judges
must take into account: NB for answering long questions!!!
1. The seriousness of the crime
2. The interests of society
3. The personal circumstances of the individual
, Absolute or Retributive Theories (Punishment that is deserved)
Restores legal balance that has been disturbed by the commission of the crime
Degree of punishment must be in proportion to degree of harm
Expresses societies condemnation of the crime
Respects freedom of will (free people can be held responsible for their choices provided
those were made voluntarily)
Respects human dignity not treated as a means to an end but as an end in itself
Underlying rationale: Persons who have caused harm should themselves suffer harm.
Types:
1. Appeasement or revenge
Reason:
- Appease society – public demands.
- Society must punish to prove condemn, express revulsion.
- Restore society order.
Disadvantages: Claim for revenge
o Can they explain situation if victim does not desire vengeance?
o Should victim be consulted to determine what punishment of offender would
satisfy their thirst for revenge?
Advantages: “Vengeance” due to public demand
o Demand for revenge is satisfied.
o Public do not lose respect for the law.
o People will not view it as necessary to exact private revenge.
2. Just desert: punishment must fit the crime if this theory is used
Relative or utilitarian theories (Punishment that is socially beneficial)
Underlying rationale: Punishment has a social benefit for society and is therefore justified.
1. Prevention or incapacitation
Make it impossible to commit the crime
Assumption: the accused will reoffend if they are not incapacitated
Criticism: Usually only temporarily/partially effective.
2. Deterrence: (not physically stopped from committing crime)
The general public
o WHOLE COMMUNITY deterred emphasis on effect punishment has on society
o Rationale: punishment is an unpleasant as humans we naturally avoid
suffering/ unpleasant things we make the connection between the fact that
the punishment is as a result of the crime committed thus we avoid
committing the crime
TOPIC 1- Introduction
Criminal law: defines certain forms of human conduct as crimes and provides for punishment of
those persons with criminal capacity who unlawfully and with a guilty mind commit a crime.
Public Law – Deals with relationship between State & subjects of the State, different
branches of the State & between States.
Who does the punishing in criminal law? The state
Why only the state? prevent people from taking law into their own hands
** Rights of arrested, detained & accused persons – S35 of Constitution.
Definition of a crime: Conduct that society believes to be wrong / disapproves of. E.g.- Conduct the
community thinks deserves punishment.
Definition of a Punishment: deprivation of liberty, property or the infliction of suffering on the
accused thereby exacting revenge and expressing societal condemnation.
Punishment in order to inflict suffering thereby exacting revenge thereby
o expressing social condemnation
o prevent crime
o rehabilitate the criminal
o Retribution/revenge.
o achieve restorative justice
Restorative Justice
Punishment was essentially seen as the deprivation of liberty, property or the infliction of
suffering and is traditionally regarded as feature of criminal proceedings.
Restorative justice processed that emphasis non-punitive/less punitive resolutions of disputes
are gaining support in SA.
Involves essentially non-punitive resolution of disputes arising from infliction of harm through
process involving victim, offender, community.
Restore parties to prior condition that was disturbed by criminal conduct.
Elements of a crime: need to be proven in order for liability & punishment for a crime to take place.
When proving these elements, you have to go in order. If one cannot be proven: STOP.
1. Conduct
2. Causation
3. Unlawfulness
4. Criminal capacity
5. Fault
Function of Criminal Law
Social mechanism to coerce members of society, through threat of pain and suffering, to
abstain from conduct harmful to society’s interests.
, Aims to promote individual autonomy and the welfare of society (and its members) by
establishing and maintaining peace and order and advancing human rights.
Crim law is also there to protect values and interests of society
o Civil/Human rights (right to: life, property, bodily integrity)
o Individual autonomy and responsibility (person treated as responsible for his/her
behaviour)
o Collective/Public welfare (which risks paternalism)
o Maintenance of the government of the state (e.g.- treason)
o Morality (dynamic to match the changing values of society)
CRIMINIALISATION
Process whereby a competent lawmaker defines and prohibits conduct that is inherently bad or
harmful according to material definition as a crime so as to express social condemnation sometimes
to such a degree as to over-criminalise.
Force you to following the rules with the threat of punishment
Defining a crime focuses on the consequences of your conduct.
o Crime= the procedural definition is conduct for which the offender can be
punished/prosecuted
2 sources of competent law makers
1. Statutory law (legislation)
o Can override common law
o Any laws enacted/ originated from parliament
2. Common law: murder, theft etc.
o Originates from old SA legal sources such as Roman Dutch law etc.
Common Law Crimes
Come from old SA legal sources.
Found in Roman Dutch, Roman and English Law.
Closed list: No new crimes can be added/created/declared.
Legislature can remove common law crimes e.g. homosexuality and adultery used to be
common law crimes.
Statutory Crimes
Enacted by legislature/parliament.
New types of conduct continue to be declared to be a crime.
N.B. all crimes must be tested against the Constitution (may not be incompatible with it).
,Material Definition of a Crime
Inherent quality of “badness” decisive – conduct regarded as morally wrong.
Involves acts or omissions that are harmful to society
o BUT: Not all criminal conduct is morally wrong (e.g. tax evasion, speeding fine). Not
all crimes cause harm (e.g. smoking dagga).
Conclusion
o Impossible to identify typical characteristics that are inherently part of a crime.
o Society’s views of what is wrong and deserving of punishment varies according to time
and place and culture.
Procedural Definition of a Crime
If the consequence of particular act is prosecution and the infliction of punishment, then
conduct is a crime.
Thus, conduct is a crime because a competent law-making pronounced/defined it to be one
(not based on morality).
Over-criminalisation
Effects:
Lessening criminal laws authority (if anything is regarded as a crime it’s significance is
lessened)
Stigmatising individuals as criminals (social consequences come into play. E.g.- criminal
record. Remember that the stigma/social harm caused by criminalisation = the crime)
Encouraging crime (e.g.- illicit drugs: it’s illegality drives up prices thus there is more sellers.
And buyers may resort to crime to fund their addiction)
Overloading the criminal justice system (economic coast of this. should we use our limited
resources on the more serious/important cases?)
---------------------------------------------------------------------------------------------------------------------------------
TOPIC 2- Theories of punishment
Punishment theories are used to justify punishment for a crime. Gives state a right to infringe upon
the accused’s basic human rights: freedom of movement, privacy and dignity.
Punishments include:
Imprisonment
Paying a fine
Community service
Suspended sentence (you only get the punishment if you reoffend in the future. You will get
both the new sentence and the suspended one.)
When deciding on a punishment and applying the punishment theories judges
must take into account: NB for answering long questions!!!
1. The seriousness of the crime
2. The interests of society
3. The personal circumstances of the individual
, Absolute or Retributive Theories (Punishment that is deserved)
Restores legal balance that has been disturbed by the commission of the crime
Degree of punishment must be in proportion to degree of harm
Expresses societies condemnation of the crime
Respects freedom of will (free people can be held responsible for their choices provided
those were made voluntarily)
Respects human dignity not treated as a means to an end but as an end in itself
Underlying rationale: Persons who have caused harm should themselves suffer harm.
Types:
1. Appeasement or revenge
Reason:
- Appease society – public demands.
- Society must punish to prove condemn, express revulsion.
- Restore society order.
Disadvantages: Claim for revenge
o Can they explain situation if victim does not desire vengeance?
o Should victim be consulted to determine what punishment of offender would
satisfy their thirst for revenge?
Advantages: “Vengeance” due to public demand
o Demand for revenge is satisfied.
o Public do not lose respect for the law.
o People will not view it as necessary to exact private revenge.
2. Just desert: punishment must fit the crime if this theory is used
Relative or utilitarian theories (Punishment that is socially beneficial)
Underlying rationale: Punishment has a social benefit for society and is therefore justified.
1. Prevention or incapacitation
Make it impossible to commit the crime
Assumption: the accused will reoffend if they are not incapacitated
Criticism: Usually only temporarily/partially effective.
2. Deterrence: (not physically stopped from committing crime)
The general public
o WHOLE COMMUNITY deterred emphasis on effect punishment has on society
o Rationale: punishment is an unpleasant as humans we naturally avoid
suffering/ unpleasant things we make the connection between the fact that
the punishment is as a result of the crime committed thus we avoid
committing the crime
