By
Simon Motshweni ©
PBL 410| 2020
___________________
DISCLAIMER
Please take note of the fact that these notes may not be comprehensive of the
material required to be covered for the module and contained in the prescribed
syllabus as reflected in the study guide. There may be errors; omissions or
shortcomings, accordingly, use these notes at your own discretion.
ACKNOWLEDGEMENT OF SOURCES:
These notes were composed based on:
• Prof PA Carstens and Prof GP Stevens, Lecturers in the Department of Public
Law, University of Pretoria: PBL 410 (Criminal Law) 2020, Slides / Class Notes.
• PBL 410 Study Guide (2020) (University of Pretoria).
• Snyman CR Criminal Law (2014 6th ed) LexisNexis.
• Burchell J & Milton J Principles of Criminal Law (2005) Juta.
Please note:
These notes shall not be shared without the express consent of the author thereof.
1
, PBL 410 05 FEB
2020
Introductory Lecture:
by Prof. Philip Geert Stevens
Recording: University of Pretoria 4
Law is normatively defined as a body of legal rules
governing human behaviour, prescribed by society,
National law applied by the courts and enforced by the executive
[note that because the law is not always just, there exists
a comparison between de lege lata and de lege
ferenda].
Criminal Law is a course that focuses largely on the
material (substantive) requirements of a crime, it sets out
Procedural law
the legal rules setting out the rights and duties of legal
Substantive law (formal law) subjects, whereas Criminal procedure would focus on
the formalities of criminal law, it places focus on the
(material law) procedures governing the enforcement of these rights
and duties. Criminal law can thus be summarised shortly
through the “legaliteit” pyramid which is composed of:
five elements.
Law of evidence MATERIAL CRIMINAL LAW FORMAL CRIMINAL LAW
Public law Criminal
procedure Also known as substantive Also known as the law
Private law criminal law of Evidence
Civil Procedure
Explains rights and duties Explains procedure
of the state vis-à-vis its and proof
subjects and vice versa.
It explains what are the Explains what must be
Under Public Law: requirements of the proved and arguably how
crime.
Criminal Law
Definitions of ‘Material Criminal Law’:
• Snyman: Legal rules setting out the rights and duties of subjects and of
the state
• But we prefer Burchell as he defines it more comprehensively and
encompasses all the elements of a crime, Burchell defines Material
Criminal Law as follows:
that branch of national law that defines certain forms of human
conduct as crimes and provides for the punishment of those
persons who unlawfully and with a guilty mind, commit a crime.
2
, Note must be given to the fact that the pyramid below is referred to as a ‘legaliteit’
pyramid because legality is not necessarily an element of the pyramid but the base
that underlies the pyramid in whole. These elements must be assessed in this
consecutive order:
1. Act/omission (actus reus),
2. Causation,
3. Unlawfulness or wrongfulness,
4. Capacity and
5. Fault (mens reus)
Fault
(mens
reus)
Capacity
Unlawfulness/Wrongful
ness
Causation
Act/omission
LEGALITY
Constitutional Impact
Specific rights in the Bill of Rights are relevant in context of Criminal Law as evidenced from
the reported cases. These may include:
• Right to Equality (s9); Dignity (s10); Life (s11); Freedom and Security of persons (s12);
Privacy (14); Expression (16); Detained and arrested persons (s35).
Note that in S v Makwanyane the CC abolished the death penalty, which is
unconstitutional as it goes against the right to life. However, no rights are absolute and
may be limited in accordance with section 36.
3
, CRIMINALISATION AND DECRIMINALISATION OF CERTAIN CONDUCT
Abortion:
Christian lawyers Association of South Africa v Minister of Health:
➢ Abortion was challenged on the basis that it permitted the termination of
human life.
➢ This challenge was rejected on the basis that the right to life in section 11
of the Constitution did not include the life of a foetus.
Capital punishment:
S v Makwanyane:
➢ The Constitutional Court declared that the imposition of the death
penalty was unconstitutional, with the only possible exception being that
of treason in a state of war.
➢ This meant however, that the duration of imprisonment should not be
subject to unnecessary dilution.
Corporal punishment:
S v Williams:
➢ The court held that corporal punishment, as a juvenile sentencing option,
violated Sections 10 and 12(2) of the Constitution.
Christian Education South Africa v Minister of Education:
➢ The applicant argued that the provision prohibiting corporal punishment
violates their right to religious freedom and that it should be permitted
where the parents gave consent.
➢ The court rejected the claim, stating that the limitation of the religious
freedom was reasonable and justifiable and that it is not unreasonable to
expect both public and private schools to adapt their codes of discipline
to non – discriminatory laws.
Found in possession and the receiving of stolen property:
S v Manamela:
➢ The reverse onus for the offense of statutory receiving was removed and
replaced by an evidential burden.
Osman v Attorney-General Transvaal:
➢ Upheld the validity of Section 36 of the General Law Amendment Act.
Freedom of Expression:
➢ The Constitutional Court held that the provision prohibiting the possession
of indecent or obscene photographic matter is unconstitutional.
➢ The majority held that this provision constituted an infringement of the
Section 13 (interim constitution) right to personal privacy.
4
, De Reuck v DPP:
➢ The provision against the distribution and possession of child pornography
was upheld as constitutional.
➢ It was held that an image constituted child pornography if the image
was, objectively, viewed to have an erotic rather than aesthetic purpose.
Justifiable homicide:
Ex Parte Minister of Safety and Security: In re S v Walters:
➢ The provision providing that a fleeing suspect may be shot and killed was
declared unconstitutional.
The presumption of innocence and reverse onuses:
S v Zuma:
➢ The Constitutional Court reiterated the importance of reasonable
presumptions which are at the state’s disposal in order to prosecute crime
effectively.
➢ The presumption regarding confessions made by the accused before trial
was subject to Constitutional scrutiny:
o The court stated that the presumption of innocence is breached
when the need to prove certain elements results in the accused
being found guilty despite reasonable doubt.
S v Bhulwana & S v Gwadiso:
➢ The court held that the presumption providing that an accused found
with more than 115 grams of dagga in his possession is presumed to be a
dealer infringes the presumption of innocence and is unconstitutional.
S v Meaker:
➢ The presumption that a vehicle was driven by its owner was upheld as
being a valid presumption.
Prostitution
S v Jordan:
➢ The majority of the Constitutional Court affirmed the criminality of
prostitution.
➢ The minority were of the view that the criminality of prostitution is
unconstitutional on grounds that it discriminates unfairly on the basis of
gender as it is primarily aimed at the prostitute and not at the customer.
Public nudity
Phillips v DPP:
➢ The provision prohibiting public nudity on premises holding liquor licenses
(such as strip clubs) was held to be unconstitutional as it was too widely
formulated as it could apply to bars, hotels, restaurants, clubs, sports
grounds and theatres.
Strict liability:
5
Simon Motshweni ©
PBL 410| 2020
___________________
DISCLAIMER
Please take note of the fact that these notes may not be comprehensive of the
material required to be covered for the module and contained in the prescribed
syllabus as reflected in the study guide. There may be errors; omissions or
shortcomings, accordingly, use these notes at your own discretion.
ACKNOWLEDGEMENT OF SOURCES:
These notes were composed based on:
• Prof PA Carstens and Prof GP Stevens, Lecturers in the Department of Public
Law, University of Pretoria: PBL 410 (Criminal Law) 2020, Slides / Class Notes.
• PBL 410 Study Guide (2020) (University of Pretoria).
• Snyman CR Criminal Law (2014 6th ed) LexisNexis.
• Burchell J & Milton J Principles of Criminal Law (2005) Juta.
Please note:
These notes shall not be shared without the express consent of the author thereof.
1
, PBL 410 05 FEB
2020
Introductory Lecture:
by Prof. Philip Geert Stevens
Recording: University of Pretoria 4
Law is normatively defined as a body of legal rules
governing human behaviour, prescribed by society,
National law applied by the courts and enforced by the executive
[note that because the law is not always just, there exists
a comparison between de lege lata and de lege
ferenda].
Criminal Law is a course that focuses largely on the
material (substantive) requirements of a crime, it sets out
Procedural law
the legal rules setting out the rights and duties of legal
Substantive law (formal law) subjects, whereas Criminal procedure would focus on
the formalities of criminal law, it places focus on the
(material law) procedures governing the enforcement of these rights
and duties. Criminal law can thus be summarised shortly
through the “legaliteit” pyramid which is composed of:
five elements.
Law of evidence MATERIAL CRIMINAL LAW FORMAL CRIMINAL LAW
Public law Criminal
procedure Also known as substantive Also known as the law
Private law criminal law of Evidence
Civil Procedure
Explains rights and duties Explains procedure
of the state vis-à-vis its and proof
subjects and vice versa.
It explains what are the Explains what must be
Under Public Law: requirements of the proved and arguably how
crime.
Criminal Law
Definitions of ‘Material Criminal Law’:
• Snyman: Legal rules setting out the rights and duties of subjects and of
the state
• But we prefer Burchell as he defines it more comprehensively and
encompasses all the elements of a crime, Burchell defines Material
Criminal Law as follows:
that branch of national law that defines certain forms of human
conduct as crimes and provides for the punishment of those
persons who unlawfully and with a guilty mind, commit a crime.
2
, Note must be given to the fact that the pyramid below is referred to as a ‘legaliteit’
pyramid because legality is not necessarily an element of the pyramid but the base
that underlies the pyramid in whole. These elements must be assessed in this
consecutive order:
1. Act/omission (actus reus),
2. Causation,
3. Unlawfulness or wrongfulness,
4. Capacity and
5. Fault (mens reus)
Fault
(mens
reus)
Capacity
Unlawfulness/Wrongful
ness
Causation
Act/omission
LEGALITY
Constitutional Impact
Specific rights in the Bill of Rights are relevant in context of Criminal Law as evidenced from
the reported cases. These may include:
• Right to Equality (s9); Dignity (s10); Life (s11); Freedom and Security of persons (s12);
Privacy (14); Expression (16); Detained and arrested persons (s35).
Note that in S v Makwanyane the CC abolished the death penalty, which is
unconstitutional as it goes against the right to life. However, no rights are absolute and
may be limited in accordance with section 36.
3
, CRIMINALISATION AND DECRIMINALISATION OF CERTAIN CONDUCT
Abortion:
Christian lawyers Association of South Africa v Minister of Health:
➢ Abortion was challenged on the basis that it permitted the termination of
human life.
➢ This challenge was rejected on the basis that the right to life in section 11
of the Constitution did not include the life of a foetus.
Capital punishment:
S v Makwanyane:
➢ The Constitutional Court declared that the imposition of the death
penalty was unconstitutional, with the only possible exception being that
of treason in a state of war.
➢ This meant however, that the duration of imprisonment should not be
subject to unnecessary dilution.
Corporal punishment:
S v Williams:
➢ The court held that corporal punishment, as a juvenile sentencing option,
violated Sections 10 and 12(2) of the Constitution.
Christian Education South Africa v Minister of Education:
➢ The applicant argued that the provision prohibiting corporal punishment
violates their right to religious freedom and that it should be permitted
where the parents gave consent.
➢ The court rejected the claim, stating that the limitation of the religious
freedom was reasonable and justifiable and that it is not unreasonable to
expect both public and private schools to adapt their codes of discipline
to non – discriminatory laws.
Found in possession and the receiving of stolen property:
S v Manamela:
➢ The reverse onus for the offense of statutory receiving was removed and
replaced by an evidential burden.
Osman v Attorney-General Transvaal:
➢ Upheld the validity of Section 36 of the General Law Amendment Act.
Freedom of Expression:
➢ The Constitutional Court held that the provision prohibiting the possession
of indecent or obscene photographic matter is unconstitutional.
➢ The majority held that this provision constituted an infringement of the
Section 13 (interim constitution) right to personal privacy.
4
, De Reuck v DPP:
➢ The provision against the distribution and possession of child pornography
was upheld as constitutional.
➢ It was held that an image constituted child pornography if the image
was, objectively, viewed to have an erotic rather than aesthetic purpose.
Justifiable homicide:
Ex Parte Minister of Safety and Security: In re S v Walters:
➢ The provision providing that a fleeing suspect may be shot and killed was
declared unconstitutional.
The presumption of innocence and reverse onuses:
S v Zuma:
➢ The Constitutional Court reiterated the importance of reasonable
presumptions which are at the state’s disposal in order to prosecute crime
effectively.
➢ The presumption regarding confessions made by the accused before trial
was subject to Constitutional scrutiny:
o The court stated that the presumption of innocence is breached
when the need to prove certain elements results in the accused
being found guilty despite reasonable doubt.
S v Bhulwana & S v Gwadiso:
➢ The court held that the presumption providing that an accused found
with more than 115 grams of dagga in his possession is presumed to be a
dealer infringes the presumption of innocence and is unconstitutional.
S v Meaker:
➢ The presumption that a vehicle was driven by its owner was upheld as
being a valid presumption.
Prostitution
S v Jordan:
➢ The majority of the Constitutional Court affirmed the criminality of
prostitution.
➢ The minority were of the view that the criminality of prostitution is
unconstitutional on grounds that it discriminates unfairly on the basis of
gender as it is primarily aimed at the prostitute and not at the customer.
Public nudity
Phillips v DPP:
➢ The provision prohibiting public nudity on premises holding liquor licenses
(such as strip clubs) was held to be unconstitutional as it was too widely
formulated as it could apply to bars, hotels, restaurants, clubs, sports
grounds and theatres.
Strict liability:
5
