65166957 N Sukdeo CRW2601 684327 Due: 19/08/2022
1. The argument carries merit- The ius acceptum principle forbids courts from creating
criminal offences. The court may only find someone guilty of a criminal offence if that
offence has already been distinctly outlined as such in law, and if the law also sets out
a criminal punishment for the offence.
The wording of the new statutory provision creates a legal norm, meaning it creates a
legal rule that does not concurrently create a crime. Therefore X’s action does not
strictly constitute a crime and carries no criminal sanction. Though, infringement of a
legal rule may lead to administrative measures being taken.
2. According to S v Mchunu- a crime will best comply with the principles of legality if it
expressly proclaims;
(a) That the particular type of conduct is a crime; and
(b) the punishment a court must impose if it finds a person guilty of such a
crime.
The court held that an enactment, which did not unambiguously create an offence and
prescribed no penalty- did not create an offence (S v Mchunu, [2011]).
Therefore, the court acted wrongly in disclosing X’s action as a criminal offence, as
there is no criminal norm nor a criminal sanction, nor can it be presumed from the
wording (R v Zinn, [1946]). The court would find their decision incomplete as there are no
parameters in which to meter out punishment and since there is no expressed crime.
The court cannot create, or in this case, recreate a crime- it is only the responsibility of
parliament.
References
1. S v Mchunu (511 of 1992) [1994] ZASCA 78
2. R v Zinn 1946 AD 346
3. General principles of criminal law, UNISA, 2021, pg 19-27, accessed on 11
August 2022.
1. The argument carries merit- The ius acceptum principle forbids courts from creating
criminal offences. The court may only find someone guilty of a criminal offence if that
offence has already been distinctly outlined as such in law, and if the law also sets out
a criminal punishment for the offence.
The wording of the new statutory provision creates a legal norm, meaning it creates a
legal rule that does not concurrently create a crime. Therefore X’s action does not
strictly constitute a crime and carries no criminal sanction. Though, infringement of a
legal rule may lead to administrative measures being taken.
2. According to S v Mchunu- a crime will best comply with the principles of legality if it
expressly proclaims;
(a) That the particular type of conduct is a crime; and
(b) the punishment a court must impose if it finds a person guilty of such a
crime.
The court held that an enactment, which did not unambiguously create an offence and
prescribed no penalty- did not create an offence (S v Mchunu, [2011]).
Therefore, the court acted wrongly in disclosing X’s action as a criminal offence, as
there is no criminal norm nor a criminal sanction, nor can it be presumed from the
wording (R v Zinn, [1946]). The court would find their decision incomplete as there are no
parameters in which to meter out punishment and since there is no expressed crime.
The court cannot create, or in this case, recreate a crime- it is only the responsibility of
parliament.
References
1. S v Mchunu (511 of 1992) [1994] ZASCA 78
2. R v Zinn 1946 AD 346
3. General principles of criminal law, UNISA, 2021, pg 19-27, accessed on 11
August 2022.
