INTRODUCTION TO CRIMINAL LAW
INTRODUCTION
Anyone who transgresses particular norms, which the law has prescribed,
commits an offence (crime).
Though the conduct is directed at a particular person, it threatens the entire
community and thus the law has criminalised the conduct.
CRIMINAL LAW DISTINGUISHED FROM PRIVATE LAW
Criminal law forms part of public law.
The state is always part of the legal proceedings.
Some conduct the law has criminalised, whereas other conduct merely amounts
to a delict.
eg driving down the freeway at 140 km/h is a crime, but not a delict.
CIVIL CASE (NON CRIMINAL) CRIMINAL CASE
Horizontal / Horizontal Vertical
Vertical
Parties Plaintiff v Defendant The State v The Accused
Applicant v Respondent
Who must prove? Who alleges bears the onus of The state bears the onus of proof.
proof.
Onus of Proof Proof on a balance of probabilities. Proof beyond a reasonable doubt.
Proceedings Private individuals initiate the The state initiates the proceedings.
initiated by proceedings.
Aim A remedy for clarification (and For punishment.
compensation).
Outcome An action or application is allowed An accused is found guilty or not guilty
(granted) or dismissed. (acquitted).
Liability guilt
Page 1 of 20
,SOURCES OF CRIMINAL LAW
What are the origins of criminal law in our legal system?
Where can we find the criminal?
1.COMMON LAW
Common law is a primary source of criminal law.
Mostly from Roman-Dutch law - murder, theft, treason and incest.
The content of specific offences and punishment is thus often found, explained,
interpreted and developed in terms of case law.
2. LEGISLATION
Society changes, conduct becomes unacceptable
Sometimes the common law does not cover behaviour that is regarded as
criminal in our current society. Eg 50 -100 years ago, we did not need and did not
have laws on crimes that may be committed on the internet. The development of
technology and society makes it necessary for parliament to pass laws on
behaviour that may not have existed previously.
Legislature creates new offences by means of legislation.
Examples:
The National Road Traffic Act 93 of 1996.
The Atmospheric Pollution Prevention Act 45 of 1965.
The Drugs and Drug Trafficking Act 140 of 1992.
The Maintenance Act 23 of 1963.
Page 2 of 20
, HOW CRIMINAL LAW DEVELOPS
Example of crime of rape:
Common law definition – unlawful, intentional sexual intercourse with a
woman without her consent.
o Problems with the definition as too narrow
o Interpreted to mean that only a penis forced into a vagina could
constitute rape (what then about forced anal penetration, or
penetration with any other object
o Common law definition also excluded men from being raped
Section 39(2) of constitution:
When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport
and objects of the Bill of Rights.
Section 39(3) of the constitution:
The Bill of Rights does not deny the existence of any other rights or freedoms
that are recognised or conferred by common law, customary law or legislation,
to the extent that they are consistent with the Bill.
Sexual Offences Act 23 of 1957 – did not change the common law
definition of rape
CC in Masiya case in 2007 – limited reform
o Masiya (accused) forced a 9 year old girl to have anal sex
o According to the common law definition, his conduct would not
constitute rape, but the lesser crime of indecent assault
Page 3 of 20
INTRODUCTION
Anyone who transgresses particular norms, which the law has prescribed,
commits an offence (crime).
Though the conduct is directed at a particular person, it threatens the entire
community and thus the law has criminalised the conduct.
CRIMINAL LAW DISTINGUISHED FROM PRIVATE LAW
Criminal law forms part of public law.
The state is always part of the legal proceedings.
Some conduct the law has criminalised, whereas other conduct merely amounts
to a delict.
eg driving down the freeway at 140 km/h is a crime, but not a delict.
CIVIL CASE (NON CRIMINAL) CRIMINAL CASE
Horizontal / Horizontal Vertical
Vertical
Parties Plaintiff v Defendant The State v The Accused
Applicant v Respondent
Who must prove? Who alleges bears the onus of The state bears the onus of proof.
proof.
Onus of Proof Proof on a balance of probabilities. Proof beyond a reasonable doubt.
Proceedings Private individuals initiate the The state initiates the proceedings.
initiated by proceedings.
Aim A remedy for clarification (and For punishment.
compensation).
Outcome An action or application is allowed An accused is found guilty or not guilty
(granted) or dismissed. (acquitted).
Liability guilt
Page 1 of 20
,SOURCES OF CRIMINAL LAW
What are the origins of criminal law in our legal system?
Where can we find the criminal?
1.COMMON LAW
Common law is a primary source of criminal law.
Mostly from Roman-Dutch law - murder, theft, treason and incest.
The content of specific offences and punishment is thus often found, explained,
interpreted and developed in terms of case law.
2. LEGISLATION
Society changes, conduct becomes unacceptable
Sometimes the common law does not cover behaviour that is regarded as
criminal in our current society. Eg 50 -100 years ago, we did not need and did not
have laws on crimes that may be committed on the internet. The development of
technology and society makes it necessary for parliament to pass laws on
behaviour that may not have existed previously.
Legislature creates new offences by means of legislation.
Examples:
The National Road Traffic Act 93 of 1996.
The Atmospheric Pollution Prevention Act 45 of 1965.
The Drugs and Drug Trafficking Act 140 of 1992.
The Maintenance Act 23 of 1963.
Page 2 of 20
, HOW CRIMINAL LAW DEVELOPS
Example of crime of rape:
Common law definition – unlawful, intentional sexual intercourse with a
woman without her consent.
o Problems with the definition as too narrow
o Interpreted to mean that only a penis forced into a vagina could
constitute rape (what then about forced anal penetration, or
penetration with any other object
o Common law definition also excluded men from being raped
Section 39(2) of constitution:
When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport
and objects of the Bill of Rights.
Section 39(3) of the constitution:
The Bill of Rights does not deny the existence of any other rights or freedoms
that are recognised or conferred by common law, customary law or legislation,
to the extent that they are consistent with the Bill.
Sexual Offences Act 23 of 1957 – did not change the common law
definition of rape
CC in Masiya case in 2007 – limited reform
o Masiya (accused) forced a 9 year old girl to have anal sex
o According to the common law definition, his conduct would not
constitute rape, but the lesser crime of indecent assault
Page 3 of 20
