CRIMINAL LAW 171
STUDY NOTES
,1. GENERAL INTRODUCTION
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).
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.
2
, 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 rights.
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
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.
3
, • Term used referring to decision to proscribe (prohibit) conduct as a crime.
Q: 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
o Impossible to identify typical characteristics that are inherently part of a crime.
o Inherently identify conduct as a crime.
o Society’s views of what is wrong and deserving of punishment varies according to time and
place.
o Problem: Reflects societies values and does not identify characterises that identify conduct
as a crime.
o Important that there is a good definition of a crime.
1.3.4. Procedural Definition of a Crime
• What are the formal legal procedural consequences of the conduct?
• If the consequence is prosecution and the infliction of punishment, the conduct is a crime.
• Thus, conduct is a crime because a competent law-making pronounced/defined it to be one (not
based on morality).
• Return to original definition.
• Therefore conduct is a crime and prescribes punishment.
4
STUDY NOTES
,1. GENERAL INTRODUCTION
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).
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.
2
, 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 rights.
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
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.
3
, • Term used referring to decision to proscribe (prohibit) conduct as a crime.
Q: 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
o Impossible to identify typical characteristics that are inherently part of a crime.
o Inherently identify conduct as a crime.
o Society’s views of what is wrong and deserving of punishment varies according to time and
place.
o Problem: Reflects societies values and does not identify characterises that identify conduct
as a crime.
o Important that there is a good definition of a crime.
1.3.4. Procedural Definition of a Crime
• What are the formal legal procedural consequences of the conduct?
• If the consequence is prosecution and the infliction of punishment, the conduct is a crime.
• Thus, conduct is a crime because a competent law-making pronounced/defined it to be one (not
based on morality).
• Return to original definition.
• Therefore conduct is a crime and prescribes punishment.
4
