Criminal Law 171
Casework
,Punishment Theories
S v Thabethe 2009
Thabethe raped the fifteen year old daughter of his girlfriend, but both the mother and her
daughter did not want him to go to prison, since he was the sole breadwinner. There were
several other compelling circumstances that led the court to decide that restorative justice was
the best route to follow. The application of restorative justice would ensure, firstly, that the
offender continued to acknowledge his responsibility and guilt; secondly, that he apologised to
the victim and helped her to find closure; thirdly, that he recompensed the victim and society by
supporting the former and by rendering community service to the latter; and fourthly, that he
continued to support his family. Accused sentenced to ten years' imprisonment, suspended for
five years on condition, inter alia, that he remain in designated fixed employment; that he
contribute at least 80% of his income to the maintenance of the victim and her family; and that
he perform 800 hours of community service.
Director of Public Prosecutions v Thabethe 2011 (SCA)
The court argued while the victim’s voice mattered, it should not be the only factor that
influences sentencing. In order to preserve the credibility of the Judicial System and of
restorative justice, the seriousness of the offence and the outrage of the public should be kept in
mind. Serious offences should be imposed for serious crimes. The SCA found that the sentence
imposed by the court below was inappropriate and disturbingly disproportionate to the
seriousness of the offence of which the respondent had been convicted. The sentence of the
trial court was set aside and replaced with a sentence of 10 years' imprisonment in terms of s
51(2) of the Criminal Law Amendment Act.
,Principle of Legality
S v Solomon 1973
Smoking farmworker unintentionally started a fire. The question was what he was guilty of. He
did not commit arson since his acts were unintentional. The court a quo found him guilty of
conflagration, but this was not an accepted crime in the South African legal system. He was
therefore exonerated from any criminal wrongdoing, because the court a quo did not follow the
principle of ius acceptum.
Masiya v Director of Public Prosecutions 2007 (CC)
Masiya was convicted of anally raping a nine year old girl. The regional magistrates court
extended the common law definition of rape to include anal penetration without consent. The
Constitutional Court ruled that the common law definition of rape should include the anal
penetration of females (but remained silent of the anal rape of males). The court set aside
Masiya’s rape conviction because it was not in accordance with the ius praevium principle and
instead convicted him of indecent assault.
Rex v Forlee 1917
Forlee was convicted of selling and possessing opium. The legislature contained a definition of
proscription, but not a penalty clause or a criminalisation clause. The court ruled that an act
which is expressly forbidden by the legislature and public interest constitutes a punishable
offence, even though no penalty be attached. The judge found that this was enough to
constitute a valid definition of a crime, and that punishment was at his discretion.
S v Francis 1994
Accused escaped from a rehabilitation centre. There was a law prohibiting this, but the
legislature only contained a definition of proscription and did not contain a penalty clause or a
criminalisation clause. In this case, the judge found the findings of Rex v Forlee incorrect and
made a judgement that a legal definition of a crime was invalid if it only contained a definition of
the proscription.
Director of Public Prosecutions v Prins 2012
Prins was accused of sexual assault in terms of S5(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007. This piece of legislature contains a definition of
proscription and a criminalisation clause, but not a penalty clause. The court found that this
does not constitute a valid definition of a crime and that leaving punishment at the discretion of
the court severely undermines the nulla poena sine lege principle.
, Director of Public Prosecutions v Prins 2012 (SCA)
The above mentioned Prins case was appealed to the SCA. The court found that the decision of
the court a quo was incorrect in the finding that S5(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 did not contain a valid definition of a crime in that it
lacked a penalty clause. Section 276(1) of the Criminal Procedure Act 51 of 1977 is a general
empowering provision authorising courts to impose sentences in all cases, whether at common
law or under statute, where no other provision governs the imposition of sentence. The court
found that a definition of proscription and a criminalisation clause is enough to constitute a valid
definition of a crime, and that a penalty clause is not necessary.
Veldman v Director of Public Prosecutions 2007 (CC)
Veldman was convicted of murder. In the time between when he pleaded and when he was
sentenced, the regional court jurisdiction in sentencing was increased from 10 to 15 years. He
was thereafter sentenced to 15 years in prison. He applied to the Constitutional Court to have
his sentence reduced from 15 to 10 years, claiming that his right to a fair trial in terms of
S35(3)(n) was violated (right to receive the lesser of the two sentences if the sentence is altered
between conduct and sentencing). His application was successful and his sentence reduced to
10 years.
Casework
,Punishment Theories
S v Thabethe 2009
Thabethe raped the fifteen year old daughter of his girlfriend, but both the mother and her
daughter did not want him to go to prison, since he was the sole breadwinner. There were
several other compelling circumstances that led the court to decide that restorative justice was
the best route to follow. The application of restorative justice would ensure, firstly, that the
offender continued to acknowledge his responsibility and guilt; secondly, that he apologised to
the victim and helped her to find closure; thirdly, that he recompensed the victim and society by
supporting the former and by rendering community service to the latter; and fourthly, that he
continued to support his family. Accused sentenced to ten years' imprisonment, suspended for
five years on condition, inter alia, that he remain in designated fixed employment; that he
contribute at least 80% of his income to the maintenance of the victim and her family; and that
he perform 800 hours of community service.
Director of Public Prosecutions v Thabethe 2011 (SCA)
The court argued while the victim’s voice mattered, it should not be the only factor that
influences sentencing. In order to preserve the credibility of the Judicial System and of
restorative justice, the seriousness of the offence and the outrage of the public should be kept in
mind. Serious offences should be imposed for serious crimes. The SCA found that the sentence
imposed by the court below was inappropriate and disturbingly disproportionate to the
seriousness of the offence of which the respondent had been convicted. The sentence of the
trial court was set aside and replaced with a sentence of 10 years' imprisonment in terms of s
51(2) of the Criminal Law Amendment Act.
,Principle of Legality
S v Solomon 1973
Smoking farmworker unintentionally started a fire. The question was what he was guilty of. He
did not commit arson since his acts were unintentional. The court a quo found him guilty of
conflagration, but this was not an accepted crime in the South African legal system. He was
therefore exonerated from any criminal wrongdoing, because the court a quo did not follow the
principle of ius acceptum.
Masiya v Director of Public Prosecutions 2007 (CC)
Masiya was convicted of anally raping a nine year old girl. The regional magistrates court
extended the common law definition of rape to include anal penetration without consent. The
Constitutional Court ruled that the common law definition of rape should include the anal
penetration of females (but remained silent of the anal rape of males). The court set aside
Masiya’s rape conviction because it was not in accordance with the ius praevium principle and
instead convicted him of indecent assault.
Rex v Forlee 1917
Forlee was convicted of selling and possessing opium. The legislature contained a definition of
proscription, but not a penalty clause or a criminalisation clause. The court ruled that an act
which is expressly forbidden by the legislature and public interest constitutes a punishable
offence, even though no penalty be attached. The judge found that this was enough to
constitute a valid definition of a crime, and that punishment was at his discretion.
S v Francis 1994
Accused escaped from a rehabilitation centre. There was a law prohibiting this, but the
legislature only contained a definition of proscription and did not contain a penalty clause or a
criminalisation clause. In this case, the judge found the findings of Rex v Forlee incorrect and
made a judgement that a legal definition of a crime was invalid if it only contained a definition of
the proscription.
Director of Public Prosecutions v Prins 2012
Prins was accused of sexual assault in terms of S5(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007. This piece of legislature contains a definition of
proscription and a criminalisation clause, but not a penalty clause. The court found that this
does not constitute a valid definition of a crime and that leaving punishment at the discretion of
the court severely undermines the nulla poena sine lege principle.
, Director of Public Prosecutions v Prins 2012 (SCA)
The above mentioned Prins case was appealed to the SCA. The court found that the decision of
the court a quo was incorrect in the finding that S5(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 did not contain a valid definition of a crime in that it
lacked a penalty clause. Section 276(1) of the Criminal Procedure Act 51 of 1977 is a general
empowering provision authorising courts to impose sentences in all cases, whether at common
law or under statute, where no other provision governs the imposition of sentence. The court
found that a definition of proscription and a criminalisation clause is enough to constitute a valid
definition of a crime, and that a penalty clause is not necessary.
Veldman v Director of Public Prosecutions 2007 (CC)
Veldman was convicted of murder. In the time between when he pleaded and when he was
sentenced, the regional court jurisdiction in sentencing was increased from 10 to 15 years. He
was thereafter sentenced to 15 years in prison. He applied to the Constitutional Court to have
his sentence reduced from 15 to 10 years, claiming that his right to a fair trial in terms of
S35(3)(n) was violated (right to receive the lesser of the two sentences if the sentence is altered
between conduct and sentencing). His application was successful and his sentence reduced to
10 years.
