UNIT 1 – CRIMINAL LAW
Criminal Law vs Civil Law
Criminal Civil
® Public law ® Private law
Parties involved ® State vs accused ® Plaintiff vs Defendant
Burden of proof ® State bears onus ® Party who alleges must prove
® State needs to prove guilt of allegations
the accused ® Usually, plaintiff
Onus of proof met ® Prove beyond reasonable ® Prove on a balance of
doubt probabilities
Freedom of parties ® State = dominitis litis (master ® Parties decided whether they
to decide of proceedings) want to initiate proceedings or
® They alone decide to not
prosecute or not ® Plaintiff institutes action,
® Accused does not have a say defendant decides to oppose
claim or not
Aim ® Punish the accused ® For remedy or clarification
Outcome ® Accused is found guilty or not ® Action or application allowed or
guilty dismissed
Overlap of both civil and criminal
- S v Pistorius
- Pistorius – prosecuted on charge of murder (killing girlfriend) – criminal case
- Reeva Steenkamp financially supported parents
- Could have instituted civil case to claim damages to redress imbalance caused by Oscar’s conduct
Sources of law
1. Common Law
- Primary source
- SA law is uncodified
- Influence of common law is primarily by Roman Dutch law
- Murder and rape are examples of crimes inherited from Roman Dutch Law
- Common law can be developed by courts à Masiya v Director of Public Prosecution
Masiya vs Director of Public Prosecution
® The definition of rape broadened to include anal penetration and not just vaginal penetration
2. Legislation
- Legislation can create new offences also known as statutory crimes
- Drugs and Drug trafficking Act 140 of 1992
- Maintenance Act 99 of 1998
- National Road traffic Act 93 of 1996
- Tabacco Products control Act 93 of 1993
- Criminal Law amendment act 32 of 2007
, Specific Crimes
- crimes are punishable because they threaten the interest of individuals and of society as a whole
- categories into 4 fields (depends on the interest threatened)
1. Crime against another person that threatens human life
- Murder or capable homicide (crime results in death)
- Assault (crime results in only injury)
- Infringes on constitutional rights eg: right to life)
2. Crimes against another person’s property
- Infringement on property rights (real right)
- Property is protected in s25 of the Constitution
- Theft
3. Crimes against the state
- Most serious = treason
- Treason is conduct aimed at overthrowing or jeopardizing the existence of the state
- Contempt of court = not comply with a court order
4. Morality crimes
- Incest, public indecency
- Community mores enforced by law
International Criminal Court (ICC)
- Brought about to ensure those responsible for massive atrocities such as genocide or war crimes
are punished
- Court is based in Hague
- Only has jurisdiction if a particular state is unwilling or unable to prosecute
Elements of a Crime
All 3 have to be present for it to be said that a crime has been committed:
1. Conduct (act) or omission
2. Which is against the law
3. Where the accused was at fault
Sometimes a causal link between the act and the eventual consequence of the act needs to be present
, CONDUCT
- Crime results from human action/conduct
- Pulling the trigger on someone and them dying (action) can lead to conviction of murder
- To do nothing (omission) also qualifies as an action that leads to a crime ( S v Russel )
UNLAWFULLNESS/AGAINST THE LAW
- The act must be against the law
- CERTAIN acts that are against the law may be allowed
o Eg: self-defense/private defense (to save your own life)
o Strict requirements have to be met to rely successfully on this defense ( R v Zikalala )
- Sometimes statues provides authority for unlawful behaviour
o Violence may be used when arresting a person if such a person resists arrest or tries to
escape
- Necessity
o Eg: person breaking into someone’s car to save a baby from suffocating from heat
FAULT
- Concerns the blameworthy state of the mind of the offender
2 types of faults:
1. Intention
Direct Intention Indirect Intention Constructive Intention
Dolus Directus Dolus Indirectus Dolus Eventualis
® Easiest to prove ® Main objective is not to ® Person forsees that an
® Person knowingly and commit unlawful act, but action may result in a
willingly wants to act proceeds to commit act to consequence, they
® Intentional killing of another achieve main objective nonetheless continue with
person = murder ® A Homeless man main the action
objective to get access to ® S v Mitchell
secure warm place, breaks ® Mitchell found guilty of
window of car to sleep in murder for killing the child
car after throwing stones
® In the process commits
unlawful act-may be
charged with malicious
damage to property
(indirect intention)
Criminal Law vs Civil Law
Criminal Civil
® Public law ® Private law
Parties involved ® State vs accused ® Plaintiff vs Defendant
Burden of proof ® State bears onus ® Party who alleges must prove
® State needs to prove guilt of allegations
the accused ® Usually, plaintiff
Onus of proof met ® Prove beyond reasonable ® Prove on a balance of
doubt probabilities
Freedom of parties ® State = dominitis litis (master ® Parties decided whether they
to decide of proceedings) want to initiate proceedings or
® They alone decide to not
prosecute or not ® Plaintiff institutes action,
® Accused does not have a say defendant decides to oppose
claim or not
Aim ® Punish the accused ® For remedy or clarification
Outcome ® Accused is found guilty or not ® Action or application allowed or
guilty dismissed
Overlap of both civil and criminal
- S v Pistorius
- Pistorius – prosecuted on charge of murder (killing girlfriend) – criminal case
- Reeva Steenkamp financially supported parents
- Could have instituted civil case to claim damages to redress imbalance caused by Oscar’s conduct
Sources of law
1. Common Law
- Primary source
- SA law is uncodified
- Influence of common law is primarily by Roman Dutch law
- Murder and rape are examples of crimes inherited from Roman Dutch Law
- Common law can be developed by courts à Masiya v Director of Public Prosecution
Masiya vs Director of Public Prosecution
® The definition of rape broadened to include anal penetration and not just vaginal penetration
2. Legislation
- Legislation can create new offences also known as statutory crimes
- Drugs and Drug trafficking Act 140 of 1992
- Maintenance Act 99 of 1998
- National Road traffic Act 93 of 1996
- Tabacco Products control Act 93 of 1993
- Criminal Law amendment act 32 of 2007
, Specific Crimes
- crimes are punishable because they threaten the interest of individuals and of society as a whole
- categories into 4 fields (depends on the interest threatened)
1. Crime against another person that threatens human life
- Murder or capable homicide (crime results in death)
- Assault (crime results in only injury)
- Infringes on constitutional rights eg: right to life)
2. Crimes against another person’s property
- Infringement on property rights (real right)
- Property is protected in s25 of the Constitution
- Theft
3. Crimes against the state
- Most serious = treason
- Treason is conduct aimed at overthrowing or jeopardizing the existence of the state
- Contempt of court = not comply with a court order
4. Morality crimes
- Incest, public indecency
- Community mores enforced by law
International Criminal Court (ICC)
- Brought about to ensure those responsible for massive atrocities such as genocide or war crimes
are punished
- Court is based in Hague
- Only has jurisdiction if a particular state is unwilling or unable to prosecute
Elements of a Crime
All 3 have to be present for it to be said that a crime has been committed:
1. Conduct (act) or omission
2. Which is against the law
3. Where the accused was at fault
Sometimes a causal link between the act and the eventual consequence of the act needs to be present
, CONDUCT
- Crime results from human action/conduct
- Pulling the trigger on someone and them dying (action) can lead to conviction of murder
- To do nothing (omission) also qualifies as an action that leads to a crime ( S v Russel )
UNLAWFULLNESS/AGAINST THE LAW
- The act must be against the law
- CERTAIN acts that are against the law may be allowed
o Eg: self-defense/private defense (to save your own life)
o Strict requirements have to be met to rely successfully on this defense ( R v Zikalala )
- Sometimes statues provides authority for unlawful behaviour
o Violence may be used when arresting a person if such a person resists arrest or tries to
escape
- Necessity
o Eg: person breaking into someone’s car to save a baby from suffocating from heat
FAULT
- Concerns the blameworthy state of the mind of the offender
2 types of faults:
1. Intention
Direct Intention Indirect Intention Constructive Intention
Dolus Directus Dolus Indirectus Dolus Eventualis
® Easiest to prove ® Main objective is not to ® Person forsees that an
® Person knowingly and commit unlawful act, but action may result in a
willingly wants to act proceeds to commit act to consequence, they
® Intentional killing of another achieve main objective nonetheless continue with
person = murder ® A Homeless man main the action
objective to get access to ® S v Mitchell
secure warm place, breaks ® Mitchell found guilty of
window of car to sleep in murder for killing the child
car after throwing stones
® In the process commits
unlawful act-may be
charged with malicious
damage to property
(indirect intention)
