Study notes to be used in preparation for
examination together with prescribed
material.
CRW2601
Study Notes
Chemical Awesomeness
,Introductory Topics
Criminal Liability
General
For a person to be convicted, the following requirements must be satisfied:
1. Their conduct must be recognised in our law as a crime
a. Principle of Legality
b. Not regarded as an element of a crime
The 4 elements of criminal liability
1. Act or conduct
2. Compliance with the definitional elements of the crime
3. Unlawfulness
4. Culpability
Act or Conduct
(By conduct we mean and act or omission)
Was there conduct on the part of X (the accused)?
Usually ‘the requirement of an act”.
Conduct can only lead to liability if it is voluntary.
X must be capable of subjecting his movements to his will or intellect.
Therefore the movements of a sleepwalker are NOT considered to be acts.
An omission can only lead to liability if the law imposed a duty on X to act positively and X failed to
do so.
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
property 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).
Must be seen in reference to the law in its entirety.
Instances when a seeming unlawful act is actually are called grounds of justification (e.g. self-
defence).
,Culpability
There must be grounds on which X can be blamed for his conduct.
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 of criminal liability must be done in a specific
order. E.g. was it voluntary? If not, 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.
The Principle of Legality as entrenched in
the Constitution of South Africa
The Concept of Legality
Read case book 3 – 22
First question of criminal liability is whether the act was recognised by the law as a crime.
If something is prohibited by law, it MAY NOT be considered a crime.
Not every contravention of a legal rule constitutes a crime.
Principle of legality also known as: nullum crimen sine lege (no crime without a legal provision)
Principle of legality is in section 35(3)(1) of the Constitution.
, Rules embodied in the principle
5 rules:
1. Ius acceptum – court can only find someone guilty of a crime, and cannot ‘create a crime’.
2. Ius praevium – court can only find someone guilty if the crime was a legal crime at the time
of the commission of the act
3. Ius certum – crimes cannot be formulated vaguely
4. Ius strictum – court must interpret the definition narrowly rather than broadly
5. Nulla poena sene lege (nulla poena) – when someone is found guilty the above 4 rules must
be applied in the sentence
Judges function is not to create law, but to interpret it.
Ius Acceptum – conduct must be recognised by the law as a crime
RSA criminal law is not codified, therefore it comes mainly from common law.
Even though we use common law, it must be clear that the conduct is considered a crime in common
or statutory law. If this is not so, the court cannot convict the accused.
In RSA ius acceptum refers to common and statutory law.
Common-law crimes
There can be no crime where provision has not been made for such a crime/act in common-law.
Case law: Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC)
• Legislature (not courts) has mandate of law reform
• Balance of powers and functions should be recognised and respected
Statutory crimes
If parliament wants to create a crime, the act will best comply with the principle of legality if it
expressly declares that:
1. That particular type of conduct is a crime
2. What punishment must be imposed upon a person convicted of that crime
When the wording in an act is unclear if a crime has been created:
• Court should assume a crime has been created only when it appears unambiguously in the
text
• If the act does not expressly declare that a crime has been created, it should be slow to
interpret the conduct as such
• Consideration of ambiguous wording in acts should be interpreted in the favour of the
accused (Hanid 1950 (2) SA 592 (T))
Legal norm – provision creating a legal rule that does NOT simultaneously create a crime
Criminal norm – provision that makes clear certain conduct is a crime
Criminal sanction – provision of what punishment a court must impose
A simple legal norm will not without strong and convincing evidence to the contrary create a
criminal norm.
examination together with prescribed
material.
CRW2601
Study Notes
Chemical Awesomeness
,Introductory Topics
Criminal Liability
General
For a person to be convicted, the following requirements must be satisfied:
1. Their conduct must be recognised in our law as a crime
a. Principle of Legality
b. Not regarded as an element of a crime
The 4 elements of criminal liability
1. Act or conduct
2. Compliance with the definitional elements of the crime
3. Unlawfulness
4. Culpability
Act or Conduct
(By conduct we mean and act or omission)
Was there conduct on the part of X (the accused)?
Usually ‘the requirement of an act”.
Conduct can only lead to liability if it is voluntary.
X must be capable of subjecting his movements to his will or intellect.
Therefore the movements of a sleepwalker are NOT considered to be acts.
An omission can only lead to liability if the law imposed a duty on X to act positively and X failed to
do so.
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
property 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).
Must be seen in reference to the law in its entirety.
Instances when a seeming unlawful act is actually are called grounds of justification (e.g. self-
defence).
,Culpability
There must be grounds on which X can be blamed for his conduct.
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 of criminal liability must be done in a specific
order. E.g. was it voluntary? If not, 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.
The Principle of Legality as entrenched in
the Constitution of South Africa
The Concept of Legality
Read case book 3 – 22
First question of criminal liability is whether the act was recognised by the law as a crime.
If something is prohibited by law, it MAY NOT be considered a crime.
Not every contravention of a legal rule constitutes a crime.
Principle of legality also known as: nullum crimen sine lege (no crime without a legal provision)
Principle of legality is in section 35(3)(1) of the Constitution.
, Rules embodied in the principle
5 rules:
1. Ius acceptum – court can only find someone guilty of a crime, and cannot ‘create a crime’.
2. Ius praevium – court can only find someone guilty if the crime was a legal crime at the time
of the commission of the act
3. Ius certum – crimes cannot be formulated vaguely
4. Ius strictum – court must interpret the definition narrowly rather than broadly
5. Nulla poena sene lege (nulla poena) – when someone is found guilty the above 4 rules must
be applied in the sentence
Judges function is not to create law, but to interpret it.
Ius Acceptum – conduct must be recognised by the law as a crime
RSA criminal law is not codified, therefore it comes mainly from common law.
Even though we use common law, it must be clear that the conduct is considered a crime in common
or statutory law. If this is not so, the court cannot convict the accused.
In RSA ius acceptum refers to common and statutory law.
Common-law crimes
There can be no crime where provision has not been made for such a crime/act in common-law.
Case law: Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC)
• Legislature (not courts) has mandate of law reform
• Balance of powers and functions should be recognised and respected
Statutory crimes
If parliament wants to create a crime, the act will best comply with the principle of legality if it
expressly declares that:
1. That particular type of conduct is a crime
2. What punishment must be imposed upon a person convicted of that crime
When the wording in an act is unclear if a crime has been created:
• Court should assume a crime has been created only when it appears unambiguously in the
text
• If the act does not expressly declare that a crime has been created, it should be slow to
interpret the conduct as such
• Consideration of ambiguous wording in acts should be interpreted in the favour of the
accused (Hanid 1950 (2) SA 592 (T))
Legal norm – provision creating a legal rule that does NOT simultaneously create a crime
Criminal norm – provision that makes clear certain conduct is a crime
Criminal sanction – provision of what punishment a court must impose
A simple legal norm will not without strong and convincing evidence to the contrary create a
criminal norm.
