Introduction to Criminal Law
Tuesday, 15 February 2022 12:17
What is Public Law About?
Public Law v Private Law
• Public law: involves, regulates and governs the relationship between citizens or private persons
like citizens
• Private law: regulates the law relating to the relationship between 2 private individuals
• Criminal law falls under public law because it involves the State and the accused, X
○ administrative law, public international law and constitutional law also under public law
○ State is always involved in all public law relationships
State v Accused
• This is always the way criminal cases are cited because criminal cases always involve the state
and a private individual
• State is thus a party in every criminal case
The State’s Role in the Criminal Justice System
• Particularly prosecution and the police, play a critical role, in terms of charging the accused,
prosecuting the accused and deciding whether or not the accused is criminally liable and
punishing the accused
• There is an unequal power relationship between the state and the accused because the state
brings the charges against the accused in terms of the accused being accused of committing an
offence
• The crime involves 2 private individuals but criminal law involves the state coming forward and
taking steps against an alleged perpetrator of the crime
○ The victim does not prosecute, the state has this responsibility. The complainant only has to
open the case against the accused at the police
○ The state steps into the shoes of the complainant and acts on their behalf in pursuing a
criminal prosecution against the alleged perpetrator. State takes the place of the complainant
in all criminal cases
○ Complainant becomes main witness and will testify at the criminal trial and provides critical
evidence
Citation of Criminal Cases
• This is why state is always cited in a criminal case, irrespective of the fact that 2 individuals are
involved in a case
○ E.g. R v Dlamini (in old cases, now replaced with S for state) before 1948 until 1961
▪ The R stood for Rex (the King) or Regina (the Queen)
• Helps us know where to go to find a particular case in a law report, the year the matter was
decided, which court it was heard in as well as the page number. These citations have changed
over time
Summary
• There is no plaintiff and no defendant
• State is always on one side of the criminal case and the state is represented by the prosecutor,
who works for the NPA (National Prosecuting Authority) and is responsible for deciding whether or
not to prosecute the accused and if they decide to prosecute they need to formally bring the
charges against the accused and proceed through the CJS
○ The prosecution formally accuses X of the commission of a criminal offence
• The accused has the right to legal representation (a constitutional principle)
○ there will be a lawyer (legal representative) in any criminal case who will represent the
Topic 1 Page 1
, accused in a criminal case
What Are The Sources of Criminal Law?
1. The Constitution
- Has impacted all areas of law
- Relevant to criminal law, for example, the principle of legality and the presumption of innocence,
the rights of arrested, accused and detained persons
2. Statutory Law/Statute
3. Common Law
- Don’t appear in statutes
4. Case Law
What is Criminal Law?
• Criminal law > law of crimes and punishment
○ Law which comes into operation when X has committed a crime, determines whether X is guilty of
a crime and if so, what X's punishment will be
○ Concerned with the commission of criminal offences
- Conduct that is against the law or classified as a crime in law with the relevant penal sanction
that X will be given if found guilty of a criminal offence
What is a crime?
“A crime is a legal wrong for which the offender is liable to be prosecuted and, if convicted,
punished by the State.” Cross & Jones Introduction to Criminal Law (7ed)
Key words:
A. Legal wrong = it is not an ethical deviation, it is about what the law considers a legal wrong
B. Offender is liable = whether X can be prosecuted and tried and convicted and punished by the
State
• Deciding to prosecute is one thing, but its about the trial process as well and whether during that
trial the State at the end of trial finds that X did commit the alleged criminal offence. That finding
is what brings about a conviction and punishment thereafter
1. unlawful conduct
- Conduct which is considered unlawful in terms of criminal law
2. threat of state punishment
- correctional supervision, a fine, imprisonment etc
- depends on what the relevant common law crime or statutory crime says the max punishment is
for a particular crime or offence is. In consideration of the actual crime committed
• A crime constitutes conduct that is prohibited by the criminal law and which poses the threat of
punishment
Criminal v Civil Wrongs?
• Don’t confuse the two
• Purpose of private law/law of delict is compensatory, restoring the party who suffered a harm to
the position they were in prior to suffering the harm, in the form of paying damages
• Criminal law is concerned with a penal sanction and punishment, not compensatory.
○ It is about punishing X for committing a crime
What is Criminal Liability
• Central concept: when X should be held criminally liable/found guilty
• Deciding whether X has committed a crime and whether they have a valid defense for having
committed that offence
Topic 1 Page 2
Tuesday, 15 February 2022 12:17
What is Public Law About?
Public Law v Private Law
• Public law: involves, regulates and governs the relationship between citizens or private persons
like citizens
• Private law: regulates the law relating to the relationship between 2 private individuals
• Criminal law falls under public law because it involves the State and the accused, X
○ administrative law, public international law and constitutional law also under public law
○ State is always involved in all public law relationships
State v Accused
• This is always the way criminal cases are cited because criminal cases always involve the state
and a private individual
• State is thus a party in every criminal case
The State’s Role in the Criminal Justice System
• Particularly prosecution and the police, play a critical role, in terms of charging the accused,
prosecuting the accused and deciding whether or not the accused is criminally liable and
punishing the accused
• There is an unequal power relationship between the state and the accused because the state
brings the charges against the accused in terms of the accused being accused of committing an
offence
• The crime involves 2 private individuals but criminal law involves the state coming forward and
taking steps against an alleged perpetrator of the crime
○ The victim does not prosecute, the state has this responsibility. The complainant only has to
open the case against the accused at the police
○ The state steps into the shoes of the complainant and acts on their behalf in pursuing a
criminal prosecution against the alleged perpetrator. State takes the place of the complainant
in all criminal cases
○ Complainant becomes main witness and will testify at the criminal trial and provides critical
evidence
Citation of Criminal Cases
• This is why state is always cited in a criminal case, irrespective of the fact that 2 individuals are
involved in a case
○ E.g. R v Dlamini (in old cases, now replaced with S for state) before 1948 until 1961
▪ The R stood for Rex (the King) or Regina (the Queen)
• Helps us know where to go to find a particular case in a law report, the year the matter was
decided, which court it was heard in as well as the page number. These citations have changed
over time
Summary
• There is no plaintiff and no defendant
• State is always on one side of the criminal case and the state is represented by the prosecutor,
who works for the NPA (National Prosecuting Authority) and is responsible for deciding whether or
not to prosecute the accused and if they decide to prosecute they need to formally bring the
charges against the accused and proceed through the CJS
○ The prosecution formally accuses X of the commission of a criminal offence
• The accused has the right to legal representation (a constitutional principle)
○ there will be a lawyer (legal representative) in any criminal case who will represent the
Topic 1 Page 1
, accused in a criminal case
What Are The Sources of Criminal Law?
1. The Constitution
- Has impacted all areas of law
- Relevant to criminal law, for example, the principle of legality and the presumption of innocence,
the rights of arrested, accused and detained persons
2. Statutory Law/Statute
3. Common Law
- Don’t appear in statutes
4. Case Law
What is Criminal Law?
• Criminal law > law of crimes and punishment
○ Law which comes into operation when X has committed a crime, determines whether X is guilty of
a crime and if so, what X's punishment will be
○ Concerned with the commission of criminal offences
- Conduct that is against the law or classified as a crime in law with the relevant penal sanction
that X will be given if found guilty of a criminal offence
What is a crime?
“A crime is a legal wrong for which the offender is liable to be prosecuted and, if convicted,
punished by the State.” Cross & Jones Introduction to Criminal Law (7ed)
Key words:
A. Legal wrong = it is not an ethical deviation, it is about what the law considers a legal wrong
B. Offender is liable = whether X can be prosecuted and tried and convicted and punished by the
State
• Deciding to prosecute is one thing, but its about the trial process as well and whether during that
trial the State at the end of trial finds that X did commit the alleged criminal offence. That finding
is what brings about a conviction and punishment thereafter
1. unlawful conduct
- Conduct which is considered unlawful in terms of criminal law
2. threat of state punishment
- correctional supervision, a fine, imprisonment etc
- depends on what the relevant common law crime or statutory crime says the max punishment is
for a particular crime or offence is. In consideration of the actual crime committed
• A crime constitutes conduct that is prohibited by the criminal law and which poses the threat of
punishment
Criminal v Civil Wrongs?
• Don’t confuse the two
• Purpose of private law/law of delict is compensatory, restoring the party who suffered a harm to
the position they were in prior to suffering the harm, in the form of paying damages
• Criminal law is concerned with a penal sanction and punishment, not compensatory.
○ It is about punishing X for committing a crime
What is Criminal Liability
• Central concept: when X should be held criminally liable/found guilty
• Deciding whether X has committed a crime and whether they have a valid defense for having
committed that offence
Topic 1 Page 2
