Study Unit 12
Introductory Topics
History of SA Criminal Law
History of SA criminal law is partially that of common law. The common law of SA refers to those
rules of law not contained in an act of parliament or in legislation by some other subordinate
legislative body. The common law of SA is Rom-Dutch law, and the influence that English law had on
Rom-Dutch law.
Rules of Subordinate criminal law – rules we discuss in this course – are for most part not contained
in any acts. We can say our criminal law is generally for this purpose not codified.
Sources of our Criminal law
Legislation
Act dealing with specific crime or other topic relevant to criminal law. One act that towers above all
is the Constitution of the Republic of South Africa, 1996. Chapter two contains the bill of rights. All
rules – whether common law or legislation – must be compatible with this bill of rights. Among the
rights set out in bill of rights are the right to:
Right to equality before the law (s 9)
Right to life (s 9)
Right to privacy (s 14)
Right to freedom of expression (s 16)
Right to freedom of movement (s 21)
Right to a fair trial (s 35)
Common law
Found in the primary sources of common law – the writings of the Rom-Dutch authors – seldom
necessary to refer to these writings because most important rules have found their way into law
reports.
Case law
The principle of judicial precedent allows the lower courts to follow the construction placed upon a
point of law by the higher courts, and a division of the higher court is bound by the earlier
interpretation of a point of law by the same division.
Theories of Punishment
Theories for punishment of offenders, classified into the absolute theory and the relative theories.
The theory of retribution falls under the absolute theory of punishment. Retribution means
punishment is justified because X’s just desert. Theory of retribution require proportional
relationship between punishment and harm caused. Theories of deterrence, prevention and
reformation fall under relative theories. Punishment being a means to a secondary end or purpose.
Prevention is for prevention of crime, and deterrent theory is to deter an individual or society as a
whole from committing the crime. All theories are applied in deciding an appropriate sentence.
Zinn triad – Nature and severity of the crime, the interest of society and the interests of the
accused.
Introductory Topics
History of SA Criminal Law
History of SA criminal law is partially that of common law. The common law of SA refers to those
rules of law not contained in an act of parliament or in legislation by some other subordinate
legislative body. The common law of SA is Rom-Dutch law, and the influence that English law had on
Rom-Dutch law.
Rules of Subordinate criminal law – rules we discuss in this course – are for most part not contained
in any acts. We can say our criminal law is generally for this purpose not codified.
Sources of our Criminal law
Legislation
Act dealing with specific crime or other topic relevant to criminal law. One act that towers above all
is the Constitution of the Republic of South Africa, 1996. Chapter two contains the bill of rights. All
rules – whether common law or legislation – must be compatible with this bill of rights. Among the
rights set out in bill of rights are the right to:
Right to equality before the law (s 9)
Right to life (s 9)
Right to privacy (s 14)
Right to freedom of expression (s 16)
Right to freedom of movement (s 21)
Right to a fair trial (s 35)
Common law
Found in the primary sources of common law – the writings of the Rom-Dutch authors – seldom
necessary to refer to these writings because most important rules have found their way into law
reports.
Case law
The principle of judicial precedent allows the lower courts to follow the construction placed upon a
point of law by the higher courts, and a division of the higher court is bound by the earlier
interpretation of a point of law by the same division.
Theories of Punishment
Theories for punishment of offenders, classified into the absolute theory and the relative theories.
The theory of retribution falls under the absolute theory of punishment. Retribution means
punishment is justified because X’s just desert. Theory of retribution require proportional
relationship between punishment and harm caused. Theories of deterrence, prevention and
reformation fall under relative theories. Punishment being a means to a secondary end or purpose.
Prevention is for prevention of crime, and deterrent theory is to deter an individual or society as a
whole from committing the crime. All theories are applied in deciding an appropriate sentence.
Zinn triad – Nature and severity of the crime, the interest of society and the interests of the
accused.
