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Exam 16 October 2018, questions and answers
criminal law: general principles (University of South Africa)
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Crw2601 examfile
(a) Name the four requirements for criminal liability in the correct sequence. (5)
1. Conduct - -Conduct can lead to liability only if it is voluntary ie. capable of subjecting his
bodily or muscular movements to his will or intellect.
- An omission can lead to liability only if the law imposed a duty on X to act positively and he
failed to do so.
2. Which complies with the definitional elements of the crime - Definitional elements is the
concise definition of the type of conduct and the circumstances in which that conduct must take
place in order to constitute an offence
3. which is unlawful - Conduct that is contrary to the totality of the rules of law, including rules
which in certain circumstances allow a person to commit an act which is contrary to the letter of
legal prohibition or norm.
4. and culpable - ie. grounds upon which X may personally be blamed.
- Subrequirements
1. Criminal Capacity
a) The ability to appreciate the wrongfulness of his act
b) The ability to act in accordance with such an appreciation
2. Act must be either intentional or negligent
(b) X, a sixty-three-year-old public prosecutor who suffers from diabetes, is charged with the
crime of corruption. The state’s evidence reveals that X received R30 000 from Y in exchange
for destroying a police docket which implicated Y in several fraudulent activities. X is convicted
of corruption. X has no criminal record. The state prosecutor argues that the appropriate
sentence for X’s crime is imprisonment for a period of five years because persons in public
office should be deterred from abusing their powers. X’s legal advisor disagrees with these
submissions. She argues that imprisonment for a period of five years is too harsh a sentence,
considering the age, health and clean record of the accused. In her view, a sentence of
imprisonment would place too much emphasis on general deterrence, and disregards the
principle of proportionality embodied in the theory of retribution. With reference to the decision
in Zinn 1969 (2) SA 537 (A), discuss the merits of these arguments. In your answer you must
explain the difference between the absolute and relative theories of punishment. (7)
in Zinn the court held that three factors must be taken into account when a court sentences an
offender. These factors are:
The crime,
The criminal, and
the interests of society.
By “crime” is meant that regard must be taken concerning the degree of harm or the
seriousness of the violation. This consideration is important in terms of the theory of retribution.
The theory of retribution is an absolute theory of punishment which means that punishment is
an end in itself and not a means to a second end. Punishment is justified because it is the
offender’s just desert. Retribution requires the restoring of the legal balance which has been
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disturbed by the commission of the crime. The theory therefore requires that the extent of the
punishment must be proportionate to the extent of the harm done. In deciding upon an
appropriate punishment, application of the theory of retribution is imperative, because it is the
only theory of punishment which requires a proportional relationship between the harm done
and the punishment imposed.
Conversely, the relative theories of punishment strive to achieve a secondary goal: for example,
deterrence of the community or the offender, reformation of the offender or prevention of the
crime. In Zinn it was held that, apart from the seriousness of the crime, the interests of the
criminal should also be taken into account. Relative theories of punishment (eg the reformative
theory) are relevant in this context. The court must consider which punishment will be
appropriate considering the person and personality of the offender.
Questions that may arise in this context is whether the offender should be incarcerated, or
whether he or she can be reformed by some other kind of punishment, (eg community
service).The theory of individual deterrence is also applicable in the context of the “criminal”.
Will the punishment deter him or her from engaging once again in criminal activity?
The consideration of the “interests of society” requires, amongst other things, that society must
be protected from criminals. This consideration forms the basis of the preventive theory of
punishment. Furthermore, the community must be deterred from crime (the theory of general
deterrence).
It is clear that the so-called “triad in Zinn” requires a combination theory of punishment that
accommodates the ideas of retribution, deterrence, prevention and reformation.
According to the retributive theory, punishment is justified because it is X’s just desert.
Explain the philosophy underlying retribution (or “just desert”). (4)
According to the retributive theory, punishment is justified because it is X’s just desert. The
underlying idea can be explained as follows: the legal order offers every member of society
certain advantages, while at the same time burdening him/her with certain obligations. The
advantages are that the law protects him because it prohibits other people from infringing upon
his basic rights or interests, such as his life, physical integrity and property. However, these
advantages can only exist if each member of society fulfills his obligations, namely refrains from
infringing upon other members’ rights. If a person commits an act whereby he/she gets an
unjustifiable advantage above other members of society, he/she disturbs the legal balance in
society. He/she must be punished to restore the legal balance in society.
Therefore, punishment can be described as the paying of a debt which the offender owes
society as a result of his/her crime.
Equal proportion between degree of punishment and degree of crime
• The extent of the punishment must be proportionate to the extent of the harm done or of the
violation of the law.
• This is illustrated by the fact that the punishment imposed for an attempt to commit a crime is
as a rule, less severe than for the commission of the crime.
Retribution explains culpability requirement
• Pre-eminently able to explain the need for the general requirement of liability known as
culpability. (mens rea)
Downloaded by Tinomuda Nhongo ()
, lOMoARcPSD|7394947
• Presupposes that man has a free will.
• Can be held responsible or blamed for choices made.
Distinguish between the absolute and relative theories of punishment. (6)
There is only one absolute theory and that is the theory of retribution.
According to this theory, the aim of punishment is to restore the legal balance which has
been disturbed by the commission of the crime.
The punishment is an end in itself. According to the retributive theory, the extent of the
punishment must be proportionate to the extent of the harm done.
There are three relative theories of punishment.
These are the preventative, deterrent, and reformative theories.
According to these theories, the aim of punishment is a means to a secondary end rather
than an end in itself (as in the case of the retributive theory).
The relative theories emphasise a future purpose, namely prevention, deterrence or
reformation. In order to achieve these aims, the punishment imposed need not be proportionate
to the extent of the harm done.
The theory of retribution, on the other hand, is purely retrospective and focuses only on the
crime that was committed in the past.
Accused X1,X2 and X3 are appearing before you on charges of theft. You find all of them
guilty of this crime. You now have to sentence them. The evidence before you is the
following: X1has stolen one chicken and has no previous convictions. X2 has also stolen
one chicken but he has two previous convictions ^ one of theft of a radio and the other of
theft of a watch. X3 has stolen a 4X4motor vehicle worth about R150 000.The evidence
also reveals that chicken theft is very prevalent in the district. Apply the theories of
retribution, prevention and general deterrence to these facts.
The theory of retribution requires that the extent of the punishment be proportionate to the
extent of the damage caused. Because the values of the stolen things are different, it follows
that punishment for theft of the motor vehicle should be far more severe than punishment for
chicken theft. However, if only the retributive theory is applied, the same punishment must be
imposed on all the chicken thieves - the value of the objects stolen is the same.
The theory of prevention requires that a more severe punishment be imposed on X2 than on X1.
Be-cause he (X2) already has two previous convictions for theft, he must be prevented, as far
as possible, from continuing to contravene the law.
According to the theory of general deterrence, punishment need not necessarily be
proportionate to the damage caused. The fact that chicken theft is so prevalent in the district is a
ground for imposing heavier sentences on X1and X2 for stealing chickens than the sentences
Downloaded by Tinomuda Nhongo ()
Exam 16 October 2018, questions and answers
criminal law: general principles (University of South Africa)
StuDocu is not sponsored or endorsed by any college or university
Downloaded by Tinomuda Nhongo ()
, lOMoARcPSD|7394947
Crw2601 examfile
(a) Name the four requirements for criminal liability in the correct sequence. (5)
1. Conduct - -Conduct can lead to liability only if it is voluntary ie. capable of subjecting his
bodily or muscular movements to his will or intellect.
- An omission can lead to liability only if the law imposed a duty on X to act positively and he
failed to do so.
2. Which complies with the definitional elements of the crime - Definitional elements is the
concise definition of the type of conduct and the circumstances in which that conduct must take
place in order to constitute an offence
3. which is unlawful - Conduct that is contrary to the totality of the rules of law, including rules
which in certain circumstances allow a person to commit an act which is contrary to the letter of
legal prohibition or norm.
4. and culpable - ie. grounds upon which X may personally be blamed.
- Subrequirements
1. Criminal Capacity
a) The ability to appreciate the wrongfulness of his act
b) The ability to act in accordance with such an appreciation
2. Act must be either intentional or negligent
(b) X, a sixty-three-year-old public prosecutor who suffers from diabetes, is charged with the
crime of corruption. The state’s evidence reveals that X received R30 000 from Y in exchange
for destroying a police docket which implicated Y in several fraudulent activities. X is convicted
of corruption. X has no criminal record. The state prosecutor argues that the appropriate
sentence for X’s crime is imprisonment for a period of five years because persons in public
office should be deterred from abusing their powers. X’s legal advisor disagrees with these
submissions. She argues that imprisonment for a period of five years is too harsh a sentence,
considering the age, health and clean record of the accused. In her view, a sentence of
imprisonment would place too much emphasis on general deterrence, and disregards the
principle of proportionality embodied in the theory of retribution. With reference to the decision
in Zinn 1969 (2) SA 537 (A), discuss the merits of these arguments. In your answer you must
explain the difference between the absolute and relative theories of punishment. (7)
in Zinn the court held that three factors must be taken into account when a court sentences an
offender. These factors are:
The crime,
The criminal, and
the interests of society.
By “crime” is meant that regard must be taken concerning the degree of harm or the
seriousness of the violation. This consideration is important in terms of the theory of retribution.
The theory of retribution is an absolute theory of punishment which means that punishment is
an end in itself and not a means to a second end. Punishment is justified because it is the
offender’s just desert. Retribution requires the restoring of the legal balance which has been
Downloaded by Tinomuda Nhongo ()
, lOMoARcPSD|7394947
disturbed by the commission of the crime. The theory therefore requires that the extent of the
punishment must be proportionate to the extent of the harm done. In deciding upon an
appropriate punishment, application of the theory of retribution is imperative, because it is the
only theory of punishment which requires a proportional relationship between the harm done
and the punishment imposed.
Conversely, the relative theories of punishment strive to achieve a secondary goal: for example,
deterrence of the community or the offender, reformation of the offender or prevention of the
crime. In Zinn it was held that, apart from the seriousness of the crime, the interests of the
criminal should also be taken into account. Relative theories of punishment (eg the reformative
theory) are relevant in this context. The court must consider which punishment will be
appropriate considering the person and personality of the offender.
Questions that may arise in this context is whether the offender should be incarcerated, or
whether he or she can be reformed by some other kind of punishment, (eg community
service).The theory of individual deterrence is also applicable in the context of the “criminal”.
Will the punishment deter him or her from engaging once again in criminal activity?
The consideration of the “interests of society” requires, amongst other things, that society must
be protected from criminals. This consideration forms the basis of the preventive theory of
punishment. Furthermore, the community must be deterred from crime (the theory of general
deterrence).
It is clear that the so-called “triad in Zinn” requires a combination theory of punishment that
accommodates the ideas of retribution, deterrence, prevention and reformation.
According to the retributive theory, punishment is justified because it is X’s just desert.
Explain the philosophy underlying retribution (or “just desert”). (4)
According to the retributive theory, punishment is justified because it is X’s just desert. The
underlying idea can be explained as follows: the legal order offers every member of society
certain advantages, while at the same time burdening him/her with certain obligations. The
advantages are that the law protects him because it prohibits other people from infringing upon
his basic rights or interests, such as his life, physical integrity and property. However, these
advantages can only exist if each member of society fulfills his obligations, namely refrains from
infringing upon other members’ rights. If a person commits an act whereby he/she gets an
unjustifiable advantage above other members of society, he/she disturbs the legal balance in
society. He/she must be punished to restore the legal balance in society.
Therefore, punishment can be described as the paying of a debt which the offender owes
society as a result of his/her crime.
Equal proportion between degree of punishment and degree of crime
• The extent of the punishment must be proportionate to the extent of the harm done or of the
violation of the law.
• This is illustrated by the fact that the punishment imposed for an attempt to commit a crime is
as a rule, less severe than for the commission of the crime.
Retribution explains culpability requirement
• Pre-eminently able to explain the need for the general requirement of liability known as
culpability. (mens rea)
Downloaded by Tinomuda Nhongo ()
, lOMoARcPSD|7394947
• Presupposes that man has a free will.
• Can be held responsible or blamed for choices made.
Distinguish between the absolute and relative theories of punishment. (6)
There is only one absolute theory and that is the theory of retribution.
According to this theory, the aim of punishment is to restore the legal balance which has
been disturbed by the commission of the crime.
The punishment is an end in itself. According to the retributive theory, the extent of the
punishment must be proportionate to the extent of the harm done.
There are three relative theories of punishment.
These are the preventative, deterrent, and reformative theories.
According to these theories, the aim of punishment is a means to a secondary end rather
than an end in itself (as in the case of the retributive theory).
The relative theories emphasise a future purpose, namely prevention, deterrence or
reformation. In order to achieve these aims, the punishment imposed need not be proportionate
to the extent of the harm done.
The theory of retribution, on the other hand, is purely retrospective and focuses only on the
crime that was committed in the past.
Accused X1,X2 and X3 are appearing before you on charges of theft. You find all of them
guilty of this crime. You now have to sentence them. The evidence before you is the
following: X1has stolen one chicken and has no previous convictions. X2 has also stolen
one chicken but he has two previous convictions ^ one of theft of a radio and the other of
theft of a watch. X3 has stolen a 4X4motor vehicle worth about R150 000.The evidence
also reveals that chicken theft is very prevalent in the district. Apply the theories of
retribution, prevention and general deterrence to these facts.
The theory of retribution requires that the extent of the punishment be proportionate to the
extent of the damage caused. Because the values of the stolen things are different, it follows
that punishment for theft of the motor vehicle should be far more severe than punishment for
chicken theft. However, if only the retributive theory is applied, the same punishment must be
imposed on all the chicken thieves - the value of the objects stolen is the same.
The theory of prevention requires that a more severe punishment be imposed on X2 than on X1.
Be-cause he (X2) already has two previous convictions for theft, he must be prevented, as far
as possible, from continuing to contravene the law.
According to the theory of general deterrence, punishment need not necessarily be
proportionate to the damage caused. The fact that chicken theft is so prevalent in the district is a
ground for imposing heavier sentences on X1and X2 for stealing chickens than the sentences
Downloaded by Tinomuda Nhongo ()
