lOMoARcPSD| 9704390
, lOMoARcPSD| 9704390
Study Unit 1 INTRODUCTORY TOPICS
Criminal Liability
History of South African criminal law:
(1) “Common-law” refers to those rules of law not contained in an Act of parliament or in
rules of legislation by some other (subordinate) legislative body.
(2) The common law of South Africa is Roman-Dutch law.
For a person to be convicted, the following requirements must be
satisfied:
• Their conduct must be recognised in our law as a crime (known as the “Principle of
Legality”);
• The principle of legality is not regarded as an “element” of a crime.
The 4 elements (general requirements) of criminal liability:
1. Act or conduct;
2. That complies with the definitional elements of the crime;
3. And that is unlawful;
4. And Culpability.
Act or Conduct (“requirement of an act”)
• By conduct we mean and act or omission.
• Was there conduct on the part of X (the accused)?
• Conduct can only lead to liability if it is voluntary.
• Conduct is voluntary if X is capable of subjecting his movements to his will or
intellect.
• Therefore, the movements of a sleepwalker are NOT considered to be an “act”.
• An omission can only lead to liability if the law imposed a duty on X to act positively
and X failed to do so.
, lOMoARcPSD| 9704390
Compliance with the definitional elements of the crime
• Definitional elements of the crime means: the concise definition of the type of
conduct and the circumstances in which they must take place in order to
constitute and offence.
E.g. definitional elements of robbery are: “the violent removal and appropriation of
movable corporeal property belonging to another”.
• X’s conduct must comply with or correspond to the definitional elements.
Unlawfulness
• Just because it complies with the definitional elements does NOT mean it is a crime.
E.g. parent hitting child or policeman knocking down a robber are not assault (even
if they correspond with the definitional elements of assault).
• Unlawfulness means “contrary to law”. Conduct must be seen in reference to the
law in its entirety.
• Instances/situations where the law tolerates an act infringes the letter of the
definitional elements, which are called grounds of justification.
• Well known grounds of justification are private defence (includes self-defence),
necessity, consent, right of chastisement of official capacity.
Culpability
• There must be grounds on which X can be blamed for his conduct (conduct must
have been culpable).
• Shift here from the actual act to the accused’s personal abilities and knowledge (or
lack thereof).
• Culpability requirement comprises 2 questions (sub-requirements):
1. Criminal Capacity
a. Ability to appreciate the wrongfulness of his act (distinguish between right and
wrong)
b. Ability to act in accordance with such appreciation
2. Intent
a. X’s act must be intentional or negligent.
Sequence of investigation into presence of elements
Investigation into the presence of the 4 requirements (elements) of criminal liability must be
done in a specific order (it follows a certain sequence).
, lOMoARcPSD| 9704390
E.g. was the act voluntary? If not, the crime in question and the matter is concluded - no
further investigation needed, and so on, in order mentioned above.
Remember the boy with the table, chair and stick trying to retrieve the kite.
Hints on answering problem-type qestions
1. Be able to identify the 4 elements and follow the sequence of investigation into the
presence of the elements. (this requires knowledge and understanding of the definitions
of concepts (e.g. dolus eventualis))
2. Discuss the legal principles that are relevant. Most of the principles come from case law.
Therefore refer to decided cases whenever a principle is stated. (if you don’t know the
case name then just say “it has been decided”…)
3. Apply the relevant legal principles to the facts of the problem.
4. Provide a conclusion to the problem. Address the question you have been asked.
, lOMoARcPSD| 9704390
Study Unit 1 INTRODUCTORY TOPICS
Criminal Liability
History of South African criminal law:
(1) “Common-law” refers to those rules of law not contained in an Act of parliament or in
rules of legislation by some other (subordinate) legislative body.
(2) The common law of South Africa is Roman-Dutch law.
For a person to be convicted, the following requirements must be
satisfied:
• Their conduct must be recognised in our law as a crime (known as the “Principle of
Legality”);
• The principle of legality is not regarded as an “element” of a crime.
The 4 elements (general requirements) of criminal liability:
1. Act or conduct;
2. That complies with the definitional elements of the crime;
3. And that is unlawful;
4. And Culpability.
Act or Conduct (“requirement of an act”)
• By conduct we mean and act or omission.
• Was there conduct on the part of X (the accused)?
• Conduct can only lead to liability if it is voluntary.
• Conduct is voluntary if X is capable of subjecting his movements to his will or
intellect.
• Therefore, the movements of a sleepwalker are NOT considered to be an “act”.
• An omission can only lead to liability if the law imposed a duty on X to act positively
and X failed to do so.
, lOMoARcPSD| 9704390
Compliance with the definitional elements of the crime
• Definitional elements of the crime means: the concise definition of the type of
conduct and the circumstances in which they must take place in order to
constitute and offence.
E.g. definitional elements of robbery are: “the violent removal and appropriation of
movable corporeal property belonging to another”.
• X’s conduct must comply with or correspond to the definitional elements.
Unlawfulness
• Just because it complies with the definitional elements does NOT mean it is a crime.
E.g. parent hitting child or policeman knocking down a robber are not assault (even
if they correspond with the definitional elements of assault).
• Unlawfulness means “contrary to law”. Conduct must be seen in reference to the
law in its entirety.
• Instances/situations where the law tolerates an act infringes the letter of the
definitional elements, which are called grounds of justification.
• Well known grounds of justification are private defence (includes self-defence),
necessity, consent, right of chastisement of official capacity.
Culpability
• There must be grounds on which X can be blamed for his conduct (conduct must
have been culpable).
• Shift here from the actual act to the accused’s personal abilities and knowledge (or
lack thereof).
• Culpability requirement comprises 2 questions (sub-requirements):
1. Criminal Capacity
a. Ability to appreciate the wrongfulness of his act (distinguish between right and
wrong)
b. Ability to act in accordance with such appreciation
2. Intent
a. X’s act must be intentional or negligent.
Sequence of investigation into presence of elements
Investigation into the presence of the 4 requirements (elements) of criminal liability must be
done in a specific order (it follows a certain sequence).
, lOMoARcPSD| 9704390
E.g. was the act voluntary? If not, the crime in question and the matter is concluded - no
further investigation needed, and so on, in order mentioned above.
Remember the boy with the table, chair and stick trying to retrieve the kite.
Hints on answering problem-type qestions
1. Be able to identify the 4 elements and follow the sequence of investigation into the
presence of the elements. (this requires knowledge and understanding of the definitions
of concepts (e.g. dolus eventualis))
2. Discuss the legal principles that are relevant. Most of the principles come from case law.
Therefore refer to decided cases whenever a principle is stated. (if you don’t know the
case name then just say “it has been decided”…)
3. Apply the relevant legal principles to the facts of the problem.
4. Provide a conclusion to the problem. Address the question you have been asked.
