NOTES:
examination should use study guide as primary source - except in respect of topics which are not
discussed in the study guide & only in prescribed work
Concentrate on remembering names of most important leading cases - Underline names of cases
when referring to them in examinations
If fail to remember name of important case in examination - can simply state: “It has been
decided”/“According to a decision”
Murder is the unlawful, intentional causing of the death of another human being.
Culpable homicide is the unlawful, negligent causing of the death of another human being.
The only difference between these two crimes is that - intention is required for one***negligence is
required for the other.
Supra means “above” and infra means “below”.
, STUDY UNIT 1 Crimes against the state
Crimes divided into broad categories according to the object which is protected by the legal norm
reflected in the definition of the crime.
Specific crimes four broad categories - crimes against the state and the administration of justice, crimes
against the community, crimes against the person and crimes against property
1.1 CRIMES AGAINST THE STATE
▪ NB common law crimes - high treason and sedition (troublemaking)
▪ NB statutory - terrorism in terms of the Protection of Constitutional Democracy Against Terrorist and
Related Activities Act 33 of 2004 – into operation 2005
▪ Terrorism & public violence - two offences occurring fairly regularly in practice
1.2 TERRORISM
Definition
• The Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 -
broad definition of “terrorist activities”
• Main “terrorist activities” prohibited in section 1:
(a) Any act committed in/outside the Republic which
(i) involves the use of violence by any means/method
(ii) involves the release into the environment of/distributing/exposing public to any
dangerous/harmful substance/organism; any toxic chemical/microbial/other biological agent/toxin;
(iii) endangers the life/violates the physical integrity of any person/causes serious bodily
injury/the death of any person/a number of persons;
(iv) causes serious risk to the health/safety of the public/any segment of the public;
(v) causes the destruction/substantial damage to any property, natural resource/the
environmental heritage whether private/public
(vi) is designed/calculated to cause serious interference with/serious disruption of an essential
service, facility/system, including an electronic system; telecommunication system; banking/financial
service/financial system; an essential infrastructure facility/any essential emergency services, such as
police, medical/civil defence services;
(vii) causes any major economic loss/extensive destabilisation of an economic system of a country;
or
(viii) creates a serious public emergency situation/a general insurrection in the Republic.
• Provided that the harm contemplated in (i) to (vii) above suffered in/outside the Republic & “activity”
referred to in par (ii)–(viii) can be committed by any means or method
• Above acts performed with defined culpability
• Culpability accompanying any abovementioned acts is:
(a) An act which is intended/by its nature & context, can reasonably be regarded as being intended,
directly or indirectly, to
(i) threaten unity and territorial integrity of Republic;
(ii) intimidate/cause feelings of insecurity within public/segment of public with regard to security,
incl. economic security/to cause feelings of terror, fear/panic in a civilian population; or
(iii) unduly compel, intimidate, force, coerce, induce /cause a person, a government,
public/segment of public/domestic/international organization/intergovernmental organisation to
do/to abstain/refrain from doing any act/to adopt/abandon a particular standpoint/to act in
accordance with certain principles.
• Irrelevant whether public/person, government, body/organization/institution in (ii) & (iii) –
inside/outside the Republic
• Further required:
,(b) Act to be committed, directly/indirectly, in whole/in part, for the purpose of the advancement of an
individual/collective political, religious, ideological / philosophical motive, objective,
cause/undertaking.
Note: Not memorise above definition - read carefully & able to identify set of facts in
assignment/examination amounting to act of terrorism
1.2.3 ELEMENTS OF THE OFFENCE
(1) An act
(2) Unlawfulness
(3) A specific intention
1.2.4 OBJECT/INTEREST PROTECED
• Interests protected - safety & security of Republic, its institutions & people.
1.2.5 THE ACT
Conduct prohibited comprises:
use of violence;
release of toxic/harmful substances;
conduct that endangers life/physical integrity of any person;
causing serious risk to health & safety of public;
causing damage to property;
an act calculated to cause serious interference with services;
causing destabilisation of economy & creation of public emergency/insurgency(riot)
1.2.6 UNLAWFULNESS
▪ Act performed under compulsion - justify performance.
▪ Provided in Act - act part of protest, dissent (rebellion)/industrial action - not intend harm contemplated
in par (a)(i)–(iv) of definition - excluded from prohibition.
▪ In accordance with right to freedom of speech & right to strike (ss 10 and 23(2)(c) of Constitution).
1.2.7 INTENTION
▪ Specific intention required for the crime
▪ The intention has two components.
▪ Required that the act performed with intention or
▪ Act by nature & context reasonably regarded as being intended - directly/indirectly to –
FIRST COMPONENT
• threaten unity and territorial integrity of Republic;
• intimidate/cause feelings of insecurity within public/segment of public with regard to its security
including economic security/cause feelings of terror, fear/panic in a civilian population; or
• unduly compel, intimidate, force, coerce, induce/cause a person, a government, the public/segment of
public/domestic/international organization/intergovernmental organisation to do/to abstain/refrain
from doing any act/adopt/abandon particular standpoint/act in accordance with certain principles;
and
SECOND COMPONENT
Act be committed – directly/indirectly, in whole/in part, for the purpose of the advancement of an
individual/collective political, religious, ideological/philosophical motive, objective, cause/
undertaking.
Dolus eventualis - sufficient form of intention
“can reasonably be regarded as being intended” - import objective test - determine intention submitted
these words refer to recognised practice of courts drawing inference of subjective intention from
perpetrator’s outward conduct at time of commission of act & circumstances surrounding it - cases
where no direct evidence of intention.
Other offences created in the Act:
, • Harbouring & concealment of person committing acts of terrorism (s 11)
• Failure to report presence of persons suspected of intending to commit/having committed an offence (s
12)
• Offences relating to “hoaxes”(jokes/pranks) (s 13)
1.3 PUBLIC VIOLENCE
1.3.1 DEFINITION
Public violence is the unlawful and intentional performance of an act, or acts, by a number of persons
which assumes serious proportions and is intended to disturb the public peace and order by violent
means, or to infringe the rights of another.
1.3.2 ELEMENTS OF THE CRIME
(1) an act
(2) performed by a number of persons
(3) which assumes serious proportions
(4) which is unlawful, and
(5) intentional - more specifically includes an intention (i) to disturb public peace & order by violent means,
or (ii) infringe the rights of another
1.3.3 THE OBJECT/INTEREST PROTECTED
The interest protected in case of public violence - public peace and order (Salie 1938).
Measure of overlapping may occur between this interest & interests protected by other crimes
against the state
separation not always possible:
crime commited by number of people also impair/challenges auth of state – treason commited
if
acts accompanied by hostile intent as in high treason – high treason commited
Section 17 of Constition: everyone “ has the right, peacefully & unarmed, to assemble,
demonstrate, picket & presentpetitions” – demonstration not peacefully as in S17 – guilty of
public violence
Public violence overlap with assault, malicious injury to property, arson & robbery – atleast 1 of
these commited in commission of public violence – due to dangerious dimensions X charged not
with 1 of these crimes but public violence
1.3.4 JOINT ACTION
Not committed by individual acting alone - public peace & order disturbed by number of
persons acting in concert.
Impossible to specify number of persons required - depend on circumstances of the case, taking
into account factors such as seriousness of threat to peace and order.
Terblanche 1938 - 5 persons considered sufficient
Other cases - was not serious as a result of limited scope & duration - 6, 8 and 10 persons
considered insufficient for the commission of the crime (Mcunu, Salie supra, Nxumalo
respectively).
Participants in disturbance of peace must act in concert - with a common purpose (Wilkens;
Ndaba; Kashion; S v Whitehead).
Established X knowingly participated - prosecution need not prove precisely what acts were
committed by which of the participants – application of doctorine of common purpose applies
(Wilkens supra; Lekoatla; Mashotonga).
S v Le Roux - Supreme Court of Appeal - in absence of proof of prior agreement/plan to commit
transgressions - state must prove active association with the acts of public violence of each
individual accused - proof of presence at scene of the crime not sufficient.
Committed in public place & on private property (Cele; Segopotsi).
Participants need not be armed.
examination should use study guide as primary source - except in respect of topics which are not
discussed in the study guide & only in prescribed work
Concentrate on remembering names of most important leading cases - Underline names of cases
when referring to them in examinations
If fail to remember name of important case in examination - can simply state: “It has been
decided”/“According to a decision”
Murder is the unlawful, intentional causing of the death of another human being.
Culpable homicide is the unlawful, negligent causing of the death of another human being.
The only difference between these two crimes is that - intention is required for one***negligence is
required for the other.
Supra means “above” and infra means “below”.
, STUDY UNIT 1 Crimes against the state
Crimes divided into broad categories according to the object which is protected by the legal norm
reflected in the definition of the crime.
Specific crimes four broad categories - crimes against the state and the administration of justice, crimes
against the community, crimes against the person and crimes against property
1.1 CRIMES AGAINST THE STATE
▪ NB common law crimes - high treason and sedition (troublemaking)
▪ NB statutory - terrorism in terms of the Protection of Constitutional Democracy Against Terrorist and
Related Activities Act 33 of 2004 – into operation 2005
▪ Terrorism & public violence - two offences occurring fairly regularly in practice
1.2 TERRORISM
Definition
• The Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 -
broad definition of “terrorist activities”
• Main “terrorist activities” prohibited in section 1:
(a) Any act committed in/outside the Republic which
(i) involves the use of violence by any means/method
(ii) involves the release into the environment of/distributing/exposing public to any
dangerous/harmful substance/organism; any toxic chemical/microbial/other biological agent/toxin;
(iii) endangers the life/violates the physical integrity of any person/causes serious bodily
injury/the death of any person/a number of persons;
(iv) causes serious risk to the health/safety of the public/any segment of the public;
(v) causes the destruction/substantial damage to any property, natural resource/the
environmental heritage whether private/public
(vi) is designed/calculated to cause serious interference with/serious disruption of an essential
service, facility/system, including an electronic system; telecommunication system; banking/financial
service/financial system; an essential infrastructure facility/any essential emergency services, such as
police, medical/civil defence services;
(vii) causes any major economic loss/extensive destabilisation of an economic system of a country;
or
(viii) creates a serious public emergency situation/a general insurrection in the Republic.
• Provided that the harm contemplated in (i) to (vii) above suffered in/outside the Republic & “activity”
referred to in par (ii)–(viii) can be committed by any means or method
• Above acts performed with defined culpability
• Culpability accompanying any abovementioned acts is:
(a) An act which is intended/by its nature & context, can reasonably be regarded as being intended,
directly or indirectly, to
(i) threaten unity and territorial integrity of Republic;
(ii) intimidate/cause feelings of insecurity within public/segment of public with regard to security,
incl. economic security/to cause feelings of terror, fear/panic in a civilian population; or
(iii) unduly compel, intimidate, force, coerce, induce /cause a person, a government,
public/segment of public/domestic/international organization/intergovernmental organisation to
do/to abstain/refrain from doing any act/to adopt/abandon a particular standpoint/to act in
accordance with certain principles.
• Irrelevant whether public/person, government, body/organization/institution in (ii) & (iii) –
inside/outside the Republic
• Further required:
,(b) Act to be committed, directly/indirectly, in whole/in part, for the purpose of the advancement of an
individual/collective political, religious, ideological / philosophical motive, objective,
cause/undertaking.
Note: Not memorise above definition - read carefully & able to identify set of facts in
assignment/examination amounting to act of terrorism
1.2.3 ELEMENTS OF THE OFFENCE
(1) An act
(2) Unlawfulness
(3) A specific intention
1.2.4 OBJECT/INTEREST PROTECED
• Interests protected - safety & security of Republic, its institutions & people.
1.2.5 THE ACT
Conduct prohibited comprises:
use of violence;
release of toxic/harmful substances;
conduct that endangers life/physical integrity of any person;
causing serious risk to health & safety of public;
causing damage to property;
an act calculated to cause serious interference with services;
causing destabilisation of economy & creation of public emergency/insurgency(riot)
1.2.6 UNLAWFULNESS
▪ Act performed under compulsion - justify performance.
▪ Provided in Act - act part of protest, dissent (rebellion)/industrial action - not intend harm contemplated
in par (a)(i)–(iv) of definition - excluded from prohibition.
▪ In accordance with right to freedom of speech & right to strike (ss 10 and 23(2)(c) of Constitution).
1.2.7 INTENTION
▪ Specific intention required for the crime
▪ The intention has two components.
▪ Required that the act performed with intention or
▪ Act by nature & context reasonably regarded as being intended - directly/indirectly to –
FIRST COMPONENT
• threaten unity and territorial integrity of Republic;
• intimidate/cause feelings of insecurity within public/segment of public with regard to its security
including economic security/cause feelings of terror, fear/panic in a civilian population; or
• unduly compel, intimidate, force, coerce, induce/cause a person, a government, the public/segment of
public/domestic/international organization/intergovernmental organisation to do/to abstain/refrain
from doing any act/adopt/abandon particular standpoint/act in accordance with certain principles;
and
SECOND COMPONENT
Act be committed – directly/indirectly, in whole/in part, for the purpose of the advancement of an
individual/collective political, religious, ideological/philosophical motive, objective, cause/
undertaking.
Dolus eventualis - sufficient form of intention
“can reasonably be regarded as being intended” - import objective test - determine intention submitted
these words refer to recognised practice of courts drawing inference of subjective intention from
perpetrator’s outward conduct at time of commission of act & circumstances surrounding it - cases
where no direct evidence of intention.
Other offences created in the Act:
, • Harbouring & concealment of person committing acts of terrorism (s 11)
• Failure to report presence of persons suspected of intending to commit/having committed an offence (s
12)
• Offences relating to “hoaxes”(jokes/pranks) (s 13)
1.3 PUBLIC VIOLENCE
1.3.1 DEFINITION
Public violence is the unlawful and intentional performance of an act, or acts, by a number of persons
which assumes serious proportions and is intended to disturb the public peace and order by violent
means, or to infringe the rights of another.
1.3.2 ELEMENTS OF THE CRIME
(1) an act
(2) performed by a number of persons
(3) which assumes serious proportions
(4) which is unlawful, and
(5) intentional - more specifically includes an intention (i) to disturb public peace & order by violent means,
or (ii) infringe the rights of another
1.3.3 THE OBJECT/INTEREST PROTECTED
The interest protected in case of public violence - public peace and order (Salie 1938).
Measure of overlapping may occur between this interest & interests protected by other crimes
against the state
separation not always possible:
crime commited by number of people also impair/challenges auth of state – treason commited
if
acts accompanied by hostile intent as in high treason – high treason commited
Section 17 of Constition: everyone “ has the right, peacefully & unarmed, to assemble,
demonstrate, picket & presentpetitions” – demonstration not peacefully as in S17 – guilty of
public violence
Public violence overlap with assault, malicious injury to property, arson & robbery – atleast 1 of
these commited in commission of public violence – due to dangerious dimensions X charged not
with 1 of these crimes but public violence
1.3.4 JOINT ACTION
Not committed by individual acting alone - public peace & order disturbed by number of
persons acting in concert.
Impossible to specify number of persons required - depend on circumstances of the case, taking
into account factors such as seriousness of threat to peace and order.
Terblanche 1938 - 5 persons considered sufficient
Other cases - was not serious as a result of limited scope & duration - 6, 8 and 10 persons
considered insufficient for the commission of the crime (Mcunu, Salie supra, Nxumalo
respectively).
Participants in disturbance of peace must act in concert - with a common purpose (Wilkens;
Ndaba; Kashion; S v Whitehead).
Established X knowingly participated - prosecution need not prove precisely what acts were
committed by which of the participants – application of doctorine of common purpose applies
(Wilkens supra; Lekoatla; Mashotonga).
S v Le Roux - Supreme Court of Appeal - in absence of proof of prior agreement/plan to commit
transgressions - state must prove active association with the acts of public violence of each
individual accused - proof of presence at scene of the crime not sufficient.
Committed in public place & on private property (Cele; Segopotsi).
Participants need not be armed.
