Full Summary + Cases Criminal Law 171

1. GENERAL INTRODUCTION

Prescribed Material:
Burchell Principles of Criminal Law:
- Pages 3 – 14
- Pages 49 - 63



1.1. What is Criminal Law?
 Part of Public Law.
 Public Law – Deals with relationship between State & subjects of the
State, different branches of the State & between States.
 Types of Criminal Law:
o National Criminal Law.
o International Criminal Law.
 Jurisdiction over genocide, crimes against humanity, war
crimes & crime of aggression.
 Should complement national jurisdictions.
 Cannot intervene where national criminal jurisdictions have
acted or are acting or where case is not of sufficient gravity.
o Trans National Criminal Law.
 Prohibiting organised crime.
 Body of law that provides for cooperation between states in
combating organised crime & terrorism.
 Branch of the National Law that:
o Defines certain forms of conduct as a crime.
o Provides for punishment of those persons with criminal capacity
that unlawfully & with guilty mind commit crime.
 Rights of arrested, detained & accused persons – S35 of Constitution.


1.1.1. Definition of a Crime
 Conduct that society believes to be wrong / disapproves of.
 I.e. Conduct the community thinks deserves punishment.


1.1.2. Definition of Punishment
 Deprivation/infliction of harm/suffering on accused.
 Gives expression of community’s disapproval/condemnation.
 Why punish?
o Show action has consequence.
o Prevention of crime (deterrent).
o Rehabilitation/reform (embitterment).
1

, o Retribution/revenge.
o “Restorative justice”? (restoring position prior to crime).
 Restorative Justice
o Punishment was essentially seen as the deprivation of liberty,
property or the infliction of suffering and is traditionally regarded
as feature of criminal proceedings.
o Restorative justice processed that emphasis non-punitive/less
punitive resolutions of disputes are gaining support in SA.
o Involves essentially non-punitive resolution of disputes arising from
infliction of harm through process involving victim, offender,
community.
o Restore parties to prior condition that was disturbed by criminal
conduct.


1.1.3. 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 right




2

,1.2. What is a Crime?
 Conduct that harms the following interests:


1.2.1. Human/Civil Rights
 Basic human rights in Chapter 2 of Constitution such as right to life,
bodily integrity, personal safety and property are protected.
 Eg) Protect right to life by criminalising murder.


1.2.2. Individual Autonomy / Responsibility
 Principle: Each person should be treated as responsible for his/her own
behaviour; subjective approach to SA criminal law (personal
circumstances around committing crime).
 Exception: Mental illness, age (<10).


1.2.3. Collective Welfare
 Statutory regulations that maintain standards of safety, health, welfare,
environment etc.
 “Public welfare offences”.
 Eg) Traffic Offences.
 Criticism
o State is paternalistic: Often protection from harm for the individual
who is punished by the criminal prohibition.
o Is it justified to protect people against themselves?


1.2.4. Maintenance of the Government of the State
 Crimes protecting interests pertaining to structures and institutions by
which government is carried on.
 Examples: Treason, sedition protects the government against
unconstitutional subversion and overthrow (e.g. coup d’etat), contempt
of court, corruption.


1.2.5. Public Sensibilities / Morality
 Cultural and religious beliefs and values
o Importance is endorsed by invoking the criminal sanction against
conduct threatening such values
 Examples: Incest, flashing in public
 Criticism




3

, o Should criminal law be used to punish “immorality” merely because
it is immorality (i.e. conduct that is otherwise not harmful to
others)?
o Also: Whose morality is to be enforced?

1.3. Criminalisation
 Criminalisation is a process whereby a competent lawmaker defines and
prohibits a conduct as crime so as to express societal condemnation,
sometimes to such a degree as to over-criminalise.
 Term used referring to decision to proscribe (prohibit) conduct as a
crime.

Q: What is the difference between common law and statutory crimes?

1.3.1. Common Law Crimes
 Have existed from earliest times – come from old SA legal sources.
 Found in Roman Dutch, Roman and English Law.
 Closed list: No new crimes can be added/created/declared.
 Serious crimes against the person, property and interests of the state.
 Examples: Murder, rape, bestiality, fraud.
 Legislature can remove common law crimes e.g. homosexuality and
adultery used to be common law crimes.


1.3.2. 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).

Q: Why is it not adequate to define crimes materially only?

1.3.3. Material Definition of a Crime
 Inherent quality of “badness” decisive – conduct regarded as morally
wrong.
o BUT:
o Not all criminal conduct is morally wrong / “bad” (e.g. not paying
tax, putting seatbelt on).
o Not all morally wrong conduct is punishable as a crime.
 Acts that are harmful to society
o BUT:
o Not all crimes cause harm (e.g. smoking dagga).
o Not all harmful conduct is punishable as a crime.
 Conclusion
4