Criminal Law
314
Prof Mary Nel
()
Bonny-Lyle Young
[]
2 Year PG LLB
, Criminal Law 314
Theme 1: Introduction
Prescribed Material:
- Burchell (2005) extract
- Snyman’s Criminal Law: page 3-9
- Burchell (2005) page 35-46; 49-62
- Snyman’s Criminal Law: page 31-42
Concept Maps:
- What is a crime part 1
- What is a crime part 2
- Criminalisation
- Principle of Legality
What to do for this topic:
- Read from the prescribed textbook
- Read SunLearn resources
- Listen to Podcast 1: Principle of legality- Definition of a crime
- Listen to Podcast 1: Principle of legality- Definition of a crime
- Complete Quiz: Principle of Legality
Problem Question:
- Problem question 1
Week 1: Introduction
Date to do: Activity: Resource:
Sunday, 9 February Read Burchell (2005) 49- SunLearn
54
Monday, 10 February Read Burchell (2005) 49- SunLearn
62
Tuesday, 11 February Read Snyman 31-42 Textbook
Week 2: Introduction: Principle of Legality
Date to do: Activity: Resource:
Monday, 17 February Principle of Legality SunLearn Podcast
Podcast #1
Monday, 17 February Principle of Legality SunLearn Podcast
podcast #2
Monday, 17 February Definition of a Crime Quiz SunLearn Quiz
Bonny-Lyle Young 26079232
, Criminal Law 314
- Criminal Law -
This Criminal Law themes is about a variety of introductory topics. After studying this topic
you will understand the function of criminal law, the processes of criminalisation, and the
role played by the principle of Legality in ensuring that criminal law rules are enforced in a
fair and just way.
Snyman
textbook: page
3-9
Monday, 10 February 2025
- Introduction to Criminal Law –
I. Criminal Law and the Legal System:
The law can be subdivided into several distinguishing categories:
- Public law and Private law
- Substantive law and Formal law
o Criminal law forms part of substantive law
o Substantive law: (the rules)
o comprises substantive legal rules which set out the rights & duties
of subjects / the State.
o E.g. Criminal Law
o Formal law: (the enforcement)
o comprises rules which set out the procedure/ methods by which
the rules of substantive law are enforced
o E.g. Criminal Procedure, Civil Procedure
Relationship betwen State (an authoritative power)
Formal law Public and subjects of the state
law Examples: Constitutional Law, Administrative Law,
Criminal Law
Substantive law
Regulates relationship between individuals as
Private subjects of the legal order
law Examples: Law of Obligations, Law of Succession,
Law of Things
II. Crimes & Delicts:‹
There are many similarities between crimes & delicts, but also fundamental
differences
An act may constitute both a crime and a delict, but not always.
o E.g. X assaults Y
o Y can claim damages from X on the grounds of delict.
o Y can also lodge a complaint with the police against X on grounds of
assault, which may lead to X’s conviction and punishment for the crime
of assault.
Bonny-Lyle Young 26079232
, Criminal Law 314
Crime: Delict:
Similarities both can be described as unlawful, blameworthy acts or omissions
Difference An unlawful, blameworthy An unlawful, blameworthy act or omission
conduct which is punishable by resulting in damage to another; and will
the State result in a right belonging to the injured
party for compensation
Main Differences:
Crime: Delict:
1. Directed against Public Interests Private Interests
2. Forms part of Public Law Private Law
3. Results in The imposition of punishment The guilty party being ordered to
by the State pay damages to the injured party
4. Consequence Imprisonment or a fine Compensation to complainant
5. Purpose Retribution, deterrence, Restore to original position
prevention, rehabilitation
6. Prosecution by State Private party
7. Choice State prosecutes the The injured party has the choice
perpetrator irrespective of the of whether he wishes to claim
desires of the private individual damages or not
8. Trial is governed Criminal Procedure Civil Procedure
by the rules of
III. “Crimes” & “Offences”:
South Africa: criminally punishable conduct is referred to as a “crime” or an
“offence”.
“Crime” = conduct prohibited by Common Law
“Offence” = conduct prohibited by statute
IV. Sources of Criminal Law:
There are several sources for criminal law, with the 3 main sources being the
Common Law, Legislation and Case Law.
Other important sources include the Bill of rights, the influences of English
Law and the German Criminal Law theory.
English law influences the development of the common law and helped fix
contradictions or fill gaps which were present in the law.
German criminal law theory aided in setting out general principles which were
to be applied in solving an individual set of facts.
Criminal law theory is characterised by the systemic description of the
requirements for criminal liability (i.e. general requirements applicable to all
crimes).
Here the general prerequisites for criminal liability are described and
emphasis is placed on the formulation of concepts which are universally valid
The Bill of Rights confirm the supremacy of the Constitution.
Rules of law must comply with the Constitution in order to be valid.
Rights contained in the Constitution are not absolute and may be limited (S36)
Bonny-Lyle Young 26079232
, Criminal Law 314
Criminal
Law
Common Law
Legisalation Case Law (Roman dutch
law)
- Understanding Criminal Law –
Criminal Law determines the liability and punishment for a crime committed.
The State will have to prove 5 elements beyond reasonable doubt.
These elements include:
1. Conduct
2. Causation
3. Unlawfulness
4. Criminal capacity
5. Fault
Criminal law:
o defines crimes & makes provision for punishment
o Provision is made for punishments in order to:
Inflict suffering
Exact revenge
Express societal condemnation
Prevent crime
Rehabilitate the criminal
Achieve restorative justice
Criminal law also engages in criminalisation to protect values and interests,
including:
o Human rights
Such as: right to life, right to property, right to bodily integrity
o Individual autonomy & responsibility
o Public welfare
But this does pose the risk of paternalism (State acting like a “parent of
sorts)
Paternalism is not solely a good enough reason for criminalisation
Paternalism can be seen through the criminalisation of sex work, drugs
and euthanasia
o Maintenance of the Government of the State
o Morality
o It’s important to ask the question of “who’s values and interests?”
Bonny-Lyle Young 26079232
, Criminal Law 314
Tuesday, 11 February 2025
- Criminalisation -
Criminalisation:
WHAT:
The process whereby a competent law maker defines and prohibits conduct
and a crime
This is done to express societal condemnation
Criminalisation can sometimes lead to over-criminalising
HOW:
Criminalisation take place through the occurrence of a crime in terms of:
o Common Law
Which originates from Old SA legal sources
No more crimes may be added in terms of common law, but some may still
be removed
For example: rape used to be a common law crime and later became a
statue which expanded the understanding of rape as a crime
o Statutory Law (legislation)
Which originates from Parliament / Legislature (a competent law maker)
The legislature may, at times, be inclined to over-criminalise crimes
Overcriminalisation:
- Over criminalisation can have the following effects:
o Lessening the authority of the criminal law system
o Easy to lose faith in the government and respect for the law
o Stigmatising individuals as criminals
o Being a criminal can seriously affect your life
o E.g. employment opportunities, travel
o Encouraging crime
o “everyone else is already a criminal in some way”
o Overloading the criminal justice system
o The system may be over burdened by silly things which detract
from the serious crimes
Conduct as a crime:
- A crime:
o Conduct which is inherently bad or harmful according to the material
definition of a crime
o Conduct for which the accused can be prosecuted + punished according
to the procedural definition of a crime
Bonny-Lyle Young 26079232
314
Prof Mary Nel
()
Bonny-Lyle Young
[]
2 Year PG LLB
, Criminal Law 314
Theme 1: Introduction
Prescribed Material:
- Burchell (2005) extract
- Snyman’s Criminal Law: page 3-9
- Burchell (2005) page 35-46; 49-62
- Snyman’s Criminal Law: page 31-42
Concept Maps:
- What is a crime part 1
- What is a crime part 2
- Criminalisation
- Principle of Legality
What to do for this topic:
- Read from the prescribed textbook
- Read SunLearn resources
- Listen to Podcast 1: Principle of legality- Definition of a crime
- Listen to Podcast 1: Principle of legality- Definition of a crime
- Complete Quiz: Principle of Legality
Problem Question:
- Problem question 1
Week 1: Introduction
Date to do: Activity: Resource:
Sunday, 9 February Read Burchell (2005) 49- SunLearn
54
Monday, 10 February Read Burchell (2005) 49- SunLearn
62
Tuesday, 11 February Read Snyman 31-42 Textbook
Week 2: Introduction: Principle of Legality
Date to do: Activity: Resource:
Monday, 17 February Principle of Legality SunLearn Podcast
Podcast #1
Monday, 17 February Principle of Legality SunLearn Podcast
podcast #2
Monday, 17 February Definition of a Crime Quiz SunLearn Quiz
Bonny-Lyle Young 26079232
, Criminal Law 314
- Criminal Law -
This Criminal Law themes is about a variety of introductory topics. After studying this topic
you will understand the function of criminal law, the processes of criminalisation, and the
role played by the principle of Legality in ensuring that criminal law rules are enforced in a
fair and just way.
Snyman
textbook: page
3-9
Monday, 10 February 2025
- Introduction to Criminal Law –
I. Criminal Law and the Legal System:
The law can be subdivided into several distinguishing categories:
- Public law and Private law
- Substantive law and Formal law
o Criminal law forms part of substantive law
o Substantive law: (the rules)
o comprises substantive legal rules which set out the rights & duties
of subjects / the State.
o E.g. Criminal Law
o Formal law: (the enforcement)
o comprises rules which set out the procedure/ methods by which
the rules of substantive law are enforced
o E.g. Criminal Procedure, Civil Procedure
Relationship betwen State (an authoritative power)
Formal law Public and subjects of the state
law Examples: Constitutional Law, Administrative Law,
Criminal Law
Substantive law
Regulates relationship between individuals as
Private subjects of the legal order
law Examples: Law of Obligations, Law of Succession,
Law of Things
II. Crimes & Delicts:‹
There are many similarities between crimes & delicts, but also fundamental
differences
An act may constitute both a crime and a delict, but not always.
o E.g. X assaults Y
o Y can claim damages from X on the grounds of delict.
o Y can also lodge a complaint with the police against X on grounds of
assault, which may lead to X’s conviction and punishment for the crime
of assault.
Bonny-Lyle Young 26079232
, Criminal Law 314
Crime: Delict:
Similarities both can be described as unlawful, blameworthy acts or omissions
Difference An unlawful, blameworthy An unlawful, blameworthy act or omission
conduct which is punishable by resulting in damage to another; and will
the State result in a right belonging to the injured
party for compensation
Main Differences:
Crime: Delict:
1. Directed against Public Interests Private Interests
2. Forms part of Public Law Private Law
3. Results in The imposition of punishment The guilty party being ordered to
by the State pay damages to the injured party
4. Consequence Imprisonment or a fine Compensation to complainant
5. Purpose Retribution, deterrence, Restore to original position
prevention, rehabilitation
6. Prosecution by State Private party
7. Choice State prosecutes the The injured party has the choice
perpetrator irrespective of the of whether he wishes to claim
desires of the private individual damages or not
8. Trial is governed Criminal Procedure Civil Procedure
by the rules of
III. “Crimes” & “Offences”:
South Africa: criminally punishable conduct is referred to as a “crime” or an
“offence”.
“Crime” = conduct prohibited by Common Law
“Offence” = conduct prohibited by statute
IV. Sources of Criminal Law:
There are several sources for criminal law, with the 3 main sources being the
Common Law, Legislation and Case Law.
Other important sources include the Bill of rights, the influences of English
Law and the German Criminal Law theory.
English law influences the development of the common law and helped fix
contradictions or fill gaps which were present in the law.
German criminal law theory aided in setting out general principles which were
to be applied in solving an individual set of facts.
Criminal law theory is characterised by the systemic description of the
requirements for criminal liability (i.e. general requirements applicable to all
crimes).
Here the general prerequisites for criminal liability are described and
emphasis is placed on the formulation of concepts which are universally valid
The Bill of Rights confirm the supremacy of the Constitution.
Rules of law must comply with the Constitution in order to be valid.
Rights contained in the Constitution are not absolute and may be limited (S36)
Bonny-Lyle Young 26079232
, Criminal Law 314
Criminal
Law
Common Law
Legisalation Case Law (Roman dutch
law)
- Understanding Criminal Law –
Criminal Law determines the liability and punishment for a crime committed.
The State will have to prove 5 elements beyond reasonable doubt.
These elements include:
1. Conduct
2. Causation
3. Unlawfulness
4. Criminal capacity
5. Fault
Criminal law:
o defines crimes & makes provision for punishment
o Provision is made for punishments in order to:
Inflict suffering
Exact revenge
Express societal condemnation
Prevent crime
Rehabilitate the criminal
Achieve restorative justice
Criminal law also engages in criminalisation to protect values and interests,
including:
o Human rights
Such as: right to life, right to property, right to bodily integrity
o Individual autonomy & responsibility
o Public welfare
But this does pose the risk of paternalism (State acting like a “parent of
sorts)
Paternalism is not solely a good enough reason for criminalisation
Paternalism can be seen through the criminalisation of sex work, drugs
and euthanasia
o Maintenance of the Government of the State
o Morality
o It’s important to ask the question of “who’s values and interests?”
Bonny-Lyle Young 26079232
, Criminal Law 314
Tuesday, 11 February 2025
- Criminalisation -
Criminalisation:
WHAT:
The process whereby a competent law maker defines and prohibits conduct
and a crime
This is done to express societal condemnation
Criminalisation can sometimes lead to over-criminalising
HOW:
Criminalisation take place through the occurrence of a crime in terms of:
o Common Law
Which originates from Old SA legal sources
No more crimes may be added in terms of common law, but some may still
be removed
For example: rape used to be a common law crime and later became a
statue which expanded the understanding of rape as a crime
o Statutory Law (legislation)
Which originates from Parliament / Legislature (a competent law maker)
The legislature may, at times, be inclined to over-criminalise crimes
Overcriminalisation:
- Over criminalisation can have the following effects:
o Lessening the authority of the criminal law system
o Easy to lose faith in the government and respect for the law
o Stigmatising individuals as criminals
o Being a criminal can seriously affect your life
o E.g. employment opportunities, travel
o Encouraging crime
o “everyone else is already a criminal in some way”
o Overloading the criminal justice system
o The system may be over burdened by silly things which detract
from the serious crimes
Conduct as a crime:
- A crime:
o Conduct which is inherently bad or harmful according to the material
definition of a crime
o Conduct for which the accused can be prosecuted + punished according
to the procedural definition of a crime
Bonny-Lyle Young 26079232
