CRW2601
EXAM PACK
, lOMoARcPSD|18222662
CRW2601OCT/NOV EXAM
DECLARATION OF AUTHENTICITY
I Lavinia Veeran Perumal Student Number: 46939148
declare that I am the author of this examination in LCR4805. I further declare that the
entire examination is my own, original work and that where I used other information
and resources, I did so in a responsible manner. I did not plagiarise in any way and I
have referenced and acknowledged any legal resources that I have consulted and
used to complete this examination. By signing this declaration, I acknowledge that I
am aware of what plagiarism is, and the consequences thereof. Furthermore, I
acknowledge that I am aware of UNISA’s policy on plagiarism and understand that if
there is evidence of plagiarism within this document, UNISA may take the necessary
action.
Date: …21/10/2021……………………………………………….. Place:……Durban…………………………………………………
Signature:………Lavinia Perumal…………………………………….
2
, lOMoARcPSD|18222662
QUESTION 1:
(i) The ius acceptum principle refers to both statutory crimes and common law
crimes. A court may find an accused guilty of a crime only if the kind of act
performed is recognised by the law as a crime. The ius acceptum rule is that
a court itself may not create a crime.
The 1988 legislation was amended effective 01 November 2019. X escaped
the rehabilitation centre some time in February 2020. By this time the
amended legislation was in effect. At the time of X’s escape, her conduct
therefore did not constitute as a criminal offence. Only an offence regarded
as a crime is punishable by the law.
The amended act did contain a legal norm. A legal norm is a provision in an
Act creating a legal rule which does not simultaneously create a crime.
(ii) If the legislation was amended to include a criminal norm it meant that the
Act contained a provision that made it clear that X’s conduct constituted to
a crime. A criminal sanction is a provision in an Act that sets out what
punishment a court must impose after it has convicted a person of that
crime.
The argument that because the statutory provision does not provide a
sentence for its contravention makes the charge bad is weak. As in the case
of Director of Public Prosecutions, Western Cape v Prins 2012 9 SACR 183
(SCA), it was contended that a person accused of a statutory offence cannot
be charged and found guilty of the offence if the legislation did not include
a punishment or sentence if the accused is found guilty. The Supreme Court
of Appeal rejected this argument on the basis that even if no penalty is
prescribed in the particular act the person may still be charged and found
guilty. The court will then decide on what punishment or sentence to impose.
An Act usually does contain a sentence or punishment and it is not common
that it excludes this in legislation.
Question 2:
In the given set of facts, we could use the defence of necessity. This occurs
when a person finds themselves in mortal danger. Y’s mortal danger
stemmed from compulsion when X threatened to kill him and his wife. For
fear that his life was in danger he committed the crime as instructed. It is
generally accepted that for the ordinary person in general his life is more
valuable than that of another, and that only those who possess the quality
of heroism will intentionally offer their lives for another. Compulsion may be
a complete defence which leads to an acquittal on a charge of murder
because it is human basic instinct to protect your life.
Using the Case Goliath 1972 (3) SA 1 (A) – The facts were: In this case, X
was ordered by Z to hold on to Y so that Z might stab and kill Y. X was
unwilling throughout, but Z threatened to kill him if he refused to help him.
3
, lOMoARcPSD|18222662
The trial court inferred, from the circumstances of the case, that it had been
impossible for X to run away from Z, as Z would have killed him; and that
the only way in which X could save his own life was by yielding to Z’s threat
and assisting him in the murder. X was acquitted, in the trial court, on the
ground of compulsion (necessity), and the state appealed on a question of
law.
Legal question: Does killing another person in a situation of necessity
(relative compulsion) amount to a defence excluding unlawfulness or
culpability?
Reasons for judgment:
The Court stated that the question which must be answered is whether,
reasonably, X should have resisted or not (or whether or not, in the
circumstances in which X found himself, the legal convictions of society
would have expected X to have resisted the compulsion).
In deciding what X should or should not have done in particular
circumstances, the reasonable person (or fictitious normal person) must be
placed in the position of X, subject to all the external circumstances to which
X was subjected and also in the position in which X was placed physically.
The Court held that in cases where the acts of an accused are judged by
objective standards, the principle applies that one can never demand more
from an accused than that which is reasonable, i.e. that which can be
expected of the ordinary, average person in the particular circumstances.
The Court stated that, in our law, the concept of necessity/relative
compulsion, in each case, implies a conflict in which opposing interests
come into collision and where a court must weigh up the interests which
have been served by the commission of the act and the interests which have
been infringed by the commission of the act.
It held that it is generally accepted that for the ordinary person in general
his life is more valuable than that of another, and that only those who
possess the quality of heroism will intentionally offer their lives for another.
It held that it is generally accepted that for the ordinary person in general
his life is more valuable than that of another, and that only those who
possess the quality of heroism will intentionally offer their lives for another.
Should the criminal law then state that compulsion could never be a
defence to a charge of murder, it would demand that a person who killed
another under compulsion/duress, whatever (regardless of) the
circumstances, would have to comply with a higher standard than that
demanded by the average (reasonable) person. Thus the absolute
exception, i.e. that compulsion can never be a complete defence to a charge
of murder, is not justified.
Thus depending on an investigation of the particular circumstances of
each case and the whole factual complex, judged with the greatest
circumspection, compulsion may be a complete defence which leads to an
acquittal on a charge of murder.
In coming to its conclusion, the court did not find it necessary to decide
whether killing another person in a situation of necessity (relative
compulsion) amounts to a defence excluding unlawfulness or culpability.
4
EXAM PACK
, lOMoARcPSD|18222662
CRW2601OCT/NOV EXAM
DECLARATION OF AUTHENTICITY
I Lavinia Veeran Perumal Student Number: 46939148
declare that I am the author of this examination in LCR4805. I further declare that the
entire examination is my own, original work and that where I used other information
and resources, I did so in a responsible manner. I did not plagiarise in any way and I
have referenced and acknowledged any legal resources that I have consulted and
used to complete this examination. By signing this declaration, I acknowledge that I
am aware of what plagiarism is, and the consequences thereof. Furthermore, I
acknowledge that I am aware of UNISA’s policy on plagiarism and understand that if
there is evidence of plagiarism within this document, UNISA may take the necessary
action.
Date: …21/10/2021……………………………………………….. Place:……Durban…………………………………………………
Signature:………Lavinia Perumal…………………………………….
2
, lOMoARcPSD|18222662
QUESTION 1:
(i) The ius acceptum principle refers to both statutory crimes and common law
crimes. A court may find an accused guilty of a crime only if the kind of act
performed is recognised by the law as a crime. The ius acceptum rule is that
a court itself may not create a crime.
The 1988 legislation was amended effective 01 November 2019. X escaped
the rehabilitation centre some time in February 2020. By this time the
amended legislation was in effect. At the time of X’s escape, her conduct
therefore did not constitute as a criminal offence. Only an offence regarded
as a crime is punishable by the law.
The amended act did contain a legal norm. A legal norm is a provision in an
Act creating a legal rule which does not simultaneously create a crime.
(ii) If the legislation was amended to include a criminal norm it meant that the
Act contained a provision that made it clear that X’s conduct constituted to
a crime. A criminal sanction is a provision in an Act that sets out what
punishment a court must impose after it has convicted a person of that
crime.
The argument that because the statutory provision does not provide a
sentence for its contravention makes the charge bad is weak. As in the case
of Director of Public Prosecutions, Western Cape v Prins 2012 9 SACR 183
(SCA), it was contended that a person accused of a statutory offence cannot
be charged and found guilty of the offence if the legislation did not include
a punishment or sentence if the accused is found guilty. The Supreme Court
of Appeal rejected this argument on the basis that even if no penalty is
prescribed in the particular act the person may still be charged and found
guilty. The court will then decide on what punishment or sentence to impose.
An Act usually does contain a sentence or punishment and it is not common
that it excludes this in legislation.
Question 2:
In the given set of facts, we could use the defence of necessity. This occurs
when a person finds themselves in mortal danger. Y’s mortal danger
stemmed from compulsion when X threatened to kill him and his wife. For
fear that his life was in danger he committed the crime as instructed. It is
generally accepted that for the ordinary person in general his life is more
valuable than that of another, and that only those who possess the quality
of heroism will intentionally offer their lives for another. Compulsion may be
a complete defence which leads to an acquittal on a charge of murder
because it is human basic instinct to protect your life.
Using the Case Goliath 1972 (3) SA 1 (A) – The facts were: In this case, X
was ordered by Z to hold on to Y so that Z might stab and kill Y. X was
unwilling throughout, but Z threatened to kill him if he refused to help him.
3
, lOMoARcPSD|18222662
The trial court inferred, from the circumstances of the case, that it had been
impossible for X to run away from Z, as Z would have killed him; and that
the only way in which X could save his own life was by yielding to Z’s threat
and assisting him in the murder. X was acquitted, in the trial court, on the
ground of compulsion (necessity), and the state appealed on a question of
law.
Legal question: Does killing another person in a situation of necessity
(relative compulsion) amount to a defence excluding unlawfulness or
culpability?
Reasons for judgment:
The Court stated that the question which must be answered is whether,
reasonably, X should have resisted or not (or whether or not, in the
circumstances in which X found himself, the legal convictions of society
would have expected X to have resisted the compulsion).
In deciding what X should or should not have done in particular
circumstances, the reasonable person (or fictitious normal person) must be
placed in the position of X, subject to all the external circumstances to which
X was subjected and also in the position in which X was placed physically.
The Court held that in cases where the acts of an accused are judged by
objective standards, the principle applies that one can never demand more
from an accused than that which is reasonable, i.e. that which can be
expected of the ordinary, average person in the particular circumstances.
The Court stated that, in our law, the concept of necessity/relative
compulsion, in each case, implies a conflict in which opposing interests
come into collision and where a court must weigh up the interests which
have been served by the commission of the act and the interests which have
been infringed by the commission of the act.
It held that it is generally accepted that for the ordinary person in general
his life is more valuable than that of another, and that only those who
possess the quality of heroism will intentionally offer their lives for another.
It held that it is generally accepted that for the ordinary person in general
his life is more valuable than that of another, and that only those who
possess the quality of heroism will intentionally offer their lives for another.
Should the criminal law then state that compulsion could never be a
defence to a charge of murder, it would demand that a person who killed
another under compulsion/duress, whatever (regardless of) the
circumstances, would have to comply with a higher standard than that
demanded by the average (reasonable) person. Thus the absolute
exception, i.e. that compulsion can never be a complete defence to a charge
of murder, is not justified.
Thus depending on an investigation of the particular circumstances of
each case and the whole factual complex, judged with the greatest
circumspection, compulsion may be a complete defence which leads to an
acquittal on a charge of murder.
In coming to its conclusion, the court did not find it necessary to decide
whether killing another person in a situation of necessity (relative
compulsion) amounts to a defence excluding unlawfulness or culpability.
4
