Criminal Law: General Notes
CRW 2601
University of South Africa
2nd Year Law Module
,Study Unit 1: Introductory Topic
Theories of Punishment
▪ The reasons for a punishing an offender are called the theory of punishment
▪ Retribution means punishment is justified because the offender deserved it because of their
actions.
▪ There are relative theories and absolute theories amongst others
▪ The Zinn 1969 Trial led the court to consider the follow when punishing:
o The nature and severity of the crime
o The interest of society
o The interest of the accused
Criminal Liability
NB: The Principle of Legality states that an act can only be considered illegal if it transgresses the
law of the country in which the crime is committed
The Elements of Criminal Liability
1. Act or Conduct
This includes an act or an omission.
An omission occurs when X had the opportunity to act positively and chose not to
act so their lack of action lead to a crime.
An act occurs when X acts in a way that is criminal.
Must be voluntary.
Must be committed on the part of X
Acts committed during sleep means the person’s act was not voluntary.
2. Compliance
X’s conduct must comply with the definitional elements of the crime.
Every crime has its own definitional elements to be met.
3. Unlawfulness
Must contravene South African Law
4. Culpability
There must be grounds for which X can be personally blamed for the crime.
Sub-requirements:
~1~
,1. Criminal Capacity:
▪ The ability to appreciate that the act is wrong.
▪ The ability to not do things that are illegal because they are
illegal
▪ Note: young children (under 7) and mentally ill people lack
criminal capacity
2. The act must either be intentional or negligent
~2~
, Study Unit 2: The principle of legality as entrenched
by the Constitution
NB: The principle of legality is based on the principles of democracy and fairness.
The Concept of Legality
Conduct can only be illegal if it contravenes existing South African Law
Aka nullem crimen sine lege (no crime without a legal provision)
Contained in section 35(3)(l) of the Constitution contains the provision for this
The definition of legality:
An accused may
(1) not be found guilty of a crime –
(a) unless the act with which they are charged has been recognised by the law as a crime
(b) clearly define
(c) prior to the conduct taking place
(d) without it being needed to interpret the words in the definition of the crime broadly in
order to cover the accused’s conduct; and
(2) if convicted, not be sentenced unless the sentence also complies with the four
requirements set out above under 1(a) to (d)
The rules of legality
• Ius Acceptum – the crime must be recognised by the courts either according to
legislation or common law
• Ius Praevium – the crime must have occurred at a time when the crime was drafted.
The law does not work retrospectively
• Ius certum – the law must not be vague
• Ius Strictum – the courts must interpret the crime narrowly not broadly
• Nulla poena sine lege or nulla poena – after the accused has been found guilty, the
previous four rules must be applied when sentencing the accused. The sentence to
be applied to the convicted must already be set out in the law, the courts cannot just
impose any sentence other than the ones legally authorised
Masiya v Director of Public Prosecutions - stated that in a constitution democracy the legislature
takes the responsibly for law reform and the courts have no legislative powers
~3~
CRW 2601
University of South Africa
2nd Year Law Module
,Study Unit 1: Introductory Topic
Theories of Punishment
▪ The reasons for a punishing an offender are called the theory of punishment
▪ Retribution means punishment is justified because the offender deserved it because of their
actions.
▪ There are relative theories and absolute theories amongst others
▪ The Zinn 1969 Trial led the court to consider the follow when punishing:
o The nature and severity of the crime
o The interest of society
o The interest of the accused
Criminal Liability
NB: The Principle of Legality states that an act can only be considered illegal if it transgresses the
law of the country in which the crime is committed
The Elements of Criminal Liability
1. Act or Conduct
This includes an act or an omission.
An omission occurs when X had the opportunity to act positively and chose not to
act so their lack of action lead to a crime.
An act occurs when X acts in a way that is criminal.
Must be voluntary.
Must be committed on the part of X
Acts committed during sleep means the person’s act was not voluntary.
2. Compliance
X’s conduct must comply with the definitional elements of the crime.
Every crime has its own definitional elements to be met.
3. Unlawfulness
Must contravene South African Law
4. Culpability
There must be grounds for which X can be personally blamed for the crime.
Sub-requirements:
~1~
,1. Criminal Capacity:
▪ The ability to appreciate that the act is wrong.
▪ The ability to not do things that are illegal because they are
illegal
▪ Note: young children (under 7) and mentally ill people lack
criminal capacity
2. The act must either be intentional or negligent
~2~
, Study Unit 2: The principle of legality as entrenched
by the Constitution
NB: The principle of legality is based on the principles of democracy and fairness.
The Concept of Legality
Conduct can only be illegal if it contravenes existing South African Law
Aka nullem crimen sine lege (no crime without a legal provision)
Contained in section 35(3)(l) of the Constitution contains the provision for this
The definition of legality:
An accused may
(1) not be found guilty of a crime –
(a) unless the act with which they are charged has been recognised by the law as a crime
(b) clearly define
(c) prior to the conduct taking place
(d) without it being needed to interpret the words in the definition of the crime broadly in
order to cover the accused’s conduct; and
(2) if convicted, not be sentenced unless the sentence also complies with the four
requirements set out above under 1(a) to (d)
The rules of legality
• Ius Acceptum – the crime must be recognised by the courts either according to
legislation or common law
• Ius Praevium – the crime must have occurred at a time when the crime was drafted.
The law does not work retrospectively
• Ius certum – the law must not be vague
• Ius Strictum – the courts must interpret the crime narrowly not broadly
• Nulla poena sine lege or nulla poena – after the accused has been found guilty, the
previous four rules must be applied when sentencing the accused. The sentence to
be applied to the convicted must already be set out in the law, the courts cannot just
impose any sentence other than the ones legally authorised
Masiya v Director of Public Prosecutions - stated that in a constitution democracy the legislature
takes the responsibly for law reform and the courts have no legislative powers
~3~
