2015 MEMO: CRW2601
Question 1
a) CORRECT: The four requirements of criminal liability are the following: conduct (act or
omission); compliance with the definitional elements of the offence; unlawfulness and
culpability.
b) CORRECT: In terms of the ius acceptum principle a court may only find a person guilty
of an offence if the kind of act performed is recognized by the law as a crime.
c) CORRECT: The ius praevium principle requires that a court may only find a person
guilty of an offence if the kind of act performed was recognized as a crime at the time of
its commission.
Question 2
a) INCORRECT: A South African court is allowed to create new crimes if the court is of the
opinion that the particular conduct is against the good morals of society.
b) INCORRECT: A provision which reads as follows: “Nobody may criticise the
government and anybody who contravenes this provision is guilty of a crime” complies
with the ius certum rule of the principle of legality.
c) CORRECT: In Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC) the
Constitutional Court extended the definition of the crime of rape in order to give effect to
the rights of women to dignity, privacy and sexual autonomy.
Question 3
a) INCORRECT: The rules of the principle of legality need not be complied with in the
context of punishment.
b) CORRECT: X performs a voluntary act if he can subject his bodily movements to his will
or intellect.
c) INCORRECT: If a person acted negligently, it means that he did not perform a voluntary
act.
Question 4
a) INCORRECT: If Y tells X that he will kill him unless he (X) kills Z and as a result of this
threat X kills Z, then he (X) acts in a situation of absolute force.
(In such circumstances X acted in a state of relative force and not absolute force. In
situations of absolute force X cannot subject his bodily movements to his will. X
therefore acts involuntarily. However, in a situation of relative force, X still performs a
voluntary act but, for example, chooses to obey an instruction in order to avoid another
negative consequence for instance, his own death (see Goliath 1972 (3) SA 1 (A)
discussed in 6.2.5). See also SG 3.3.4.2 and the examples provided there to illustrate
the difference between the defences of absolute force on the one hand (involuntary
conduct) and relative force on the other hand.)
b) INCORRECT: Sane automatism means that a person did not act voluntarily as a result
of mental illness.
, (Insane automatism means that a person acted involuntarily as a result of mental
illness.)
c) INCORRECT: In Henry 1999 (1) SACR 13 (SCA) the accused, who had shot his wife in
a fit of rage relied upon the defence of insane automatism.
(The accused relied on the defence of sane automatism.)
Question 5
a) CORRECT: An omission is punishable only if there is a legal duty upon X to act
positively.
b) CORRECT: The defence of impossibility may be raised if it is objectively impossible for
X to comply with a criminal norm which places a positive duty upon him to act.
c) CORRECT: Causation is a requirement in all materially-defined crimes.
Question 6
a) CORRECT: Teachers may not impose corporal punishment on children.
b) INCORRECT: If X sees that Y is attacked by Z and helps to defend Y, he (X) cannot rely
on private defence since he does not defend his own life or property.
(In Patel 1959 (3) SA 121 (A) the court held that X may also act in private defence to
protect a third person (Z).
c) INCORRECT: Killing an innocent person in a situation of necessity can never be a
defence but only a mitigating circumstance.
(In exceptional circumstances killing an innocent person in a situation of necessity may
be a defence)
Question 7
a) CORRECT: In a crime requiring intention, the intention requirement is satisfied
irrespective of whether X had intention in the form of direct intention, indirect intention or
dolus eventualis.
b) CORRECT: If X wants to kill his enemy Z, but realizes that in order to kill Z, he will
necessarily have to break into his (Z’s) house, he has indirect intention with regard to the
crime of housebreaking with the intent to commit a crime.
c) CORRECT: In order to have intention, X’s knowledge must refer to all the elements of
the offence, excluding the element of culpability.
Question 8
a) CORRECT: If X fires a shot at an object believing it to be an animal and it turns out to be
a human being, X can, on a charge of murder, rely on the defence of mistake.
b) INCORRECT: Whether X had intention to commit an offence necessarily involves an
investigation into his motive for committing the offence.
(The motive of a person is irrelevant in determining whether he had intenti)
c) INCORRECT: Aberratio ictus is a form of mistake which affords X a defence provided it
was a material mistake.
, (Aberratio ictus means the going astray or missing of the blow. It is not a form of mistake
since X had pictured in his mind what the target is, but as a result of some other factor
the target was missed and the blow or shot hit something or someone else)
Question 9
a) CORRECT: If X fires a shot at his enemy, Y, and the bullet hits a wall, ricochets and
fatally injures Z who suddenly appears behind Y, the transferred-culpability approach
requires that X be convicted of murder in respect of Z.
b) INCORRECT: An accessory after the fact is regarded as a participant in a crime.
(An accessory after the fact only comes into the picture after the crime has already been
completed. Because an accessory after the fact does not further the commission of the
crime but is nevertheless involved in the crime, he is classified as a non-participant)
c) INCORRECT: A “joiner in” is a person who joins in an attack at a stage when the victim
had already died as a result of the wounds inflicted by other persons who acted in a
common purpose.
(A “joiner in” is a person who joins in an attack at a stage when the victim has already
been mortally wounded but is still alive)
Question 10
a) CORRECT: An interrupted attempt at a crime can still amount to a punishable attempt
provided X’s actions qualify as acts of execution.
b) INCORRECT: If X thinks that it is a crime to commit adultery and then commits adultery,
he may be convicted of an attempt to commit the impossible.
(where it is stated that an attempt to commit a putative or non- existing crime is not
punishable)
c) CORRECT: If X fires a shot at Y while he (Y) is driving a vehicle with bullet-proof
windows and Y is not injured, X may be convicted of attempted murder provided the
state can prove that X had the intention to kill Y.
PART B
Question 1
(a) Y, a 22-year-old woman is obese and very keen to lose weight. She has tried all kinds
of diets but in vain. She sees an advertisement placed in a magazine by a hypnotist, X,
who claims that his clients lose weight as a result of his hypnosis. Y makes an
appointment with X and agrees to hypnosis. While Y is under hypnosis, X has sex with
Y. Y lays a charge of rape against X. X relies on the defence of consent. He argues that
since Y consented to treatment through hypnosis to lose weight, she implicitly
consented to any treatment that would cure her of obesity, including sexual intercourse.
, (i) Name the requirements for successful reliance on the defence of consent. (6)
The requirements for valid consent are the following:
Consent must be given voluntarily
by a person with certain mental abilities
based upon knowledge of the true and material facts
given either expressly or tacitly before the commission of the act
given by the complainant her- or himself
(ii) Indicate by a “yes” or “no” whether X can succeed with the defence and give reasons
for your answer. (2)
X cannot succeed with the defence because she did not give consent based upon knowledge of
the true and material facts tacitly or expressly.
(b) NOTE THE CHOICE THAT YOU HAVE IN THIS QUESTION.
For successful reliance on the ground of justification known as private defence, it is
required, amongst other things that the defensive action must stand in a reasonable
relationship to the attack.
(i) The Supreme Court of Appeal in Steyn 2010 1 SACR 411 (SCA) 417 identified
certain factors as relevant in determining whether this requirement is complied
with. However, the court also stated that the list is not exhaustive and that each
case should be determined in the light of its own circumstances. Name four of the
factors identified by the court. (4)
The factors, of which only four have to be provided , are the following:
the relationship between the parties
the gender or sex of the parties, their respective physical strengths and ages
the location of the incident
the nature of the weapon used in the attack
the nature, seriousness and perseverance of the attack
the nature and severity of any injury likely to be sustained in the attack
the nature of the means used to offer defence
the nature and extent of harm that could be caused by the defensive act.
(ii) Discuss the decision in Steyn 2010 1 SACR 411 (SCA) with reference to the facts;
the finding of the court and the reasons for the finding. (6)
Question 1
a) CORRECT: The four requirements of criminal liability are the following: conduct (act or
omission); compliance with the definitional elements of the offence; unlawfulness and
culpability.
b) CORRECT: In terms of the ius acceptum principle a court may only find a person guilty
of an offence if the kind of act performed is recognized by the law as a crime.
c) CORRECT: The ius praevium principle requires that a court may only find a person
guilty of an offence if the kind of act performed was recognized as a crime at the time of
its commission.
Question 2
a) INCORRECT: A South African court is allowed to create new crimes if the court is of the
opinion that the particular conduct is against the good morals of society.
b) INCORRECT: A provision which reads as follows: “Nobody may criticise the
government and anybody who contravenes this provision is guilty of a crime” complies
with the ius certum rule of the principle of legality.
c) CORRECT: In Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC) the
Constitutional Court extended the definition of the crime of rape in order to give effect to
the rights of women to dignity, privacy and sexual autonomy.
Question 3
a) INCORRECT: The rules of the principle of legality need not be complied with in the
context of punishment.
b) CORRECT: X performs a voluntary act if he can subject his bodily movements to his will
or intellect.
c) INCORRECT: If a person acted negligently, it means that he did not perform a voluntary
act.
Question 4
a) INCORRECT: If Y tells X that he will kill him unless he (X) kills Z and as a result of this
threat X kills Z, then he (X) acts in a situation of absolute force.
(In such circumstances X acted in a state of relative force and not absolute force. In
situations of absolute force X cannot subject his bodily movements to his will. X
therefore acts involuntarily. However, in a situation of relative force, X still performs a
voluntary act but, for example, chooses to obey an instruction in order to avoid another
negative consequence for instance, his own death (see Goliath 1972 (3) SA 1 (A)
discussed in 6.2.5). See also SG 3.3.4.2 and the examples provided there to illustrate
the difference between the defences of absolute force on the one hand (involuntary
conduct) and relative force on the other hand.)
b) INCORRECT: Sane automatism means that a person did not act voluntarily as a result
of mental illness.
, (Insane automatism means that a person acted involuntarily as a result of mental
illness.)
c) INCORRECT: In Henry 1999 (1) SACR 13 (SCA) the accused, who had shot his wife in
a fit of rage relied upon the defence of insane automatism.
(The accused relied on the defence of sane automatism.)
Question 5
a) CORRECT: An omission is punishable only if there is a legal duty upon X to act
positively.
b) CORRECT: The defence of impossibility may be raised if it is objectively impossible for
X to comply with a criminal norm which places a positive duty upon him to act.
c) CORRECT: Causation is a requirement in all materially-defined crimes.
Question 6
a) CORRECT: Teachers may not impose corporal punishment on children.
b) INCORRECT: If X sees that Y is attacked by Z and helps to defend Y, he (X) cannot rely
on private defence since he does not defend his own life or property.
(In Patel 1959 (3) SA 121 (A) the court held that X may also act in private defence to
protect a third person (Z).
c) INCORRECT: Killing an innocent person in a situation of necessity can never be a
defence but only a mitigating circumstance.
(In exceptional circumstances killing an innocent person in a situation of necessity may
be a defence)
Question 7
a) CORRECT: In a crime requiring intention, the intention requirement is satisfied
irrespective of whether X had intention in the form of direct intention, indirect intention or
dolus eventualis.
b) CORRECT: If X wants to kill his enemy Z, but realizes that in order to kill Z, he will
necessarily have to break into his (Z’s) house, he has indirect intention with regard to the
crime of housebreaking with the intent to commit a crime.
c) CORRECT: In order to have intention, X’s knowledge must refer to all the elements of
the offence, excluding the element of culpability.
Question 8
a) CORRECT: If X fires a shot at an object believing it to be an animal and it turns out to be
a human being, X can, on a charge of murder, rely on the defence of mistake.
b) INCORRECT: Whether X had intention to commit an offence necessarily involves an
investigation into his motive for committing the offence.
(The motive of a person is irrelevant in determining whether he had intenti)
c) INCORRECT: Aberratio ictus is a form of mistake which affords X a defence provided it
was a material mistake.
, (Aberratio ictus means the going astray or missing of the blow. It is not a form of mistake
since X had pictured in his mind what the target is, but as a result of some other factor
the target was missed and the blow or shot hit something or someone else)
Question 9
a) CORRECT: If X fires a shot at his enemy, Y, and the bullet hits a wall, ricochets and
fatally injures Z who suddenly appears behind Y, the transferred-culpability approach
requires that X be convicted of murder in respect of Z.
b) INCORRECT: An accessory after the fact is regarded as a participant in a crime.
(An accessory after the fact only comes into the picture after the crime has already been
completed. Because an accessory after the fact does not further the commission of the
crime but is nevertheless involved in the crime, he is classified as a non-participant)
c) INCORRECT: A “joiner in” is a person who joins in an attack at a stage when the victim
had already died as a result of the wounds inflicted by other persons who acted in a
common purpose.
(A “joiner in” is a person who joins in an attack at a stage when the victim has already
been mortally wounded but is still alive)
Question 10
a) CORRECT: An interrupted attempt at a crime can still amount to a punishable attempt
provided X’s actions qualify as acts of execution.
b) INCORRECT: If X thinks that it is a crime to commit adultery and then commits adultery,
he may be convicted of an attempt to commit the impossible.
(where it is stated that an attempt to commit a putative or non- existing crime is not
punishable)
c) CORRECT: If X fires a shot at Y while he (Y) is driving a vehicle with bullet-proof
windows and Y is not injured, X may be convicted of attempted murder provided the
state can prove that X had the intention to kill Y.
PART B
Question 1
(a) Y, a 22-year-old woman is obese and very keen to lose weight. She has tried all kinds
of diets but in vain. She sees an advertisement placed in a magazine by a hypnotist, X,
who claims that his clients lose weight as a result of his hypnosis. Y makes an
appointment with X and agrees to hypnosis. While Y is under hypnosis, X has sex with
Y. Y lays a charge of rape against X. X relies on the defence of consent. He argues that
since Y consented to treatment through hypnosis to lose weight, she implicitly
consented to any treatment that would cure her of obesity, including sexual intercourse.
, (i) Name the requirements for successful reliance on the defence of consent. (6)
The requirements for valid consent are the following:
Consent must be given voluntarily
by a person with certain mental abilities
based upon knowledge of the true and material facts
given either expressly or tacitly before the commission of the act
given by the complainant her- or himself
(ii) Indicate by a “yes” or “no” whether X can succeed with the defence and give reasons
for your answer. (2)
X cannot succeed with the defence because she did not give consent based upon knowledge of
the true and material facts tacitly or expressly.
(b) NOTE THE CHOICE THAT YOU HAVE IN THIS QUESTION.
For successful reliance on the ground of justification known as private defence, it is
required, amongst other things that the defensive action must stand in a reasonable
relationship to the attack.
(i) The Supreme Court of Appeal in Steyn 2010 1 SACR 411 (SCA) 417 identified
certain factors as relevant in determining whether this requirement is complied
with. However, the court also stated that the list is not exhaustive and that each
case should be determined in the light of its own circumstances. Name four of the
factors identified by the court. (4)
The factors, of which only four have to be provided , are the following:
the relationship between the parties
the gender or sex of the parties, their respective physical strengths and ages
the location of the incident
the nature of the weapon used in the attack
the nature, seriousness and perseverance of the attack
the nature and severity of any injury likely to be sustained in the attack
the nature of the means used to offer defence
the nature and extent of harm that could be caused by the defensive act.
(ii) Discuss the decision in Steyn 2010 1 SACR 411 (SCA) with reference to the facts;
the finding of the court and the reasons for the finding. (6)
