Kaya Borkowski
Criminal Law
Content
- Translated elements
- Principles for each crime
- Practice questions answers and mini case summaries
Translated elements and principles
Crimes
1. Incomplete offences
2. Arson
3. Assault
4. Theft
5. Robbery
6. Fraud
7. Drug possession
Incomplete Offences
- Attempt
- Conspiracy
- Incitement
Attempt
- Conduct: the conduct must be consummated (Nhlovo)
- Unlawfulness: there must be a connection to the crime. Section 18(1) Riotous
Assemblies Act
- Causation: formally defined. Causation only applies to consequence crimes.
Attempt is not a consequence crime (Ngobese)
- Capacity: presumed unless proven otherwise as per Section 78(1A) of the
Criminal Procedure Act
Distribution of this document is illegal
,Kaya Borkowski
- Fault: not specified by Riotous Assemblies Act but there exists a presumption
that fault is an essential element of crime (De Blom). There must be an intention
to commit the crime (not intention to attempt to commit) (Schoombie) or attempt
requires intention (Nhlovo)
Note: for conduct, the test is whether the commencement of consummation
occurred, not just mere preparation (Schoombie)
Principles for Attempt
- Regardless of whether the attempt is complete, it will be punishable if it were a
complete attempt at the point where there the commencement of consummation
has begun(Schoombie on conduct)
- Mere preparation is not punishable (Schoombie on conduct)
- Voluntary withdrawal is still punishable because the accused’s acts had already
reached the stage of consummation (Hlatwayo on conduct)
Relevant cases for attempt
- S v Masilela (strangled and assaulted victim, set house alight and left)
- Nhlovo (asked someone to put poison in someone else’s food)
- Schoombie (attempted arson. Poured petrol around shop to set it alight but was
interrupted)
Conspiracy
- Conduct: an agreement to commit a crime (Ngobese)
- Unlawfulness: agreement to commit a crime (Ngobese) (s 18(2)(a) of the
Riotous Assemblies Act)
- Causation: formally defined so not required (Ngobese; Snyman)
- Capacity: presumed as per s78(1A) CPA
- Fault: intention (Ngobese)
Principles for Conspiracy
- the liability of the accused is established upon overt manifestation of assent to
the conspiracy by the other person (Ngobese on conduct)
- Conspiracy can be tacit (Ngobese on conduct)
- If there is no meeting of the minds, conduct cannot be established (Harris* on
conduct)
Distribution of this document is illegal
,Kaya Borkowski
*Harris is not a prescribed case and is older than Ngobese but both are HC
judgements so could be useful
Relevant cases for conspiracy
- Ngobese (conspired to kill someone, other person said minds did not meet)
Incitement
- Conduct: conduct: seeking to influence the mind of another towards the
commission of a crime (Nkosiyana)
- Unlawfulness: section 18(2)(b) Riotous Assemblies Act
- Capacity: presumed as per section 78(1A) CPA
- Causation: formally defined so does not need to be proven (Snyman)
- Fault: intention (Nkosiyana)
Principles for Incitement
- The inciter does not need to persuade the incitee to be held liable (Nkosiyana on
conduct)
- The accused does not need to know the identity of the person or persons incited.
In fact, incitement can be directed even at a crowd of unknown people (Segale
on conduct)
Relevant cases for incitement
- Nkosiyana (arranged to assassinate a political leader. Accused claimed he did
not incite the under cover cop)
Arson
- Conduct: setting fire (Dalindyebo)
- Unlawfulness: infringement of property rights in relation to immoveable property
and also serves to protect community interests in protecting against the danger
of fire-setting to others (Snyman; Dalindyebo)
- Causation: materially defined (Snyman)
- Capacity: presumed as per s78(1A) CPA
- Fault: intention (Van Zyl)
Distribution of this document is illegal
, Kaya Borkowski
Principles for arson
- it is unlawful to set fire to one's own property where there is an intention to harm
another (Dalindyebo on unlawfulness)
- X commits arson if he sets fire to his own insured property in order to claim its
value from the insurer (Van Zyl on unlawfulness)
- X commits arson if he sets fire to his own property if it could injure another (Van
Zyl on unlawfulness)
- Intention, and more particularly an intention to damage property by setting fire to
it, thereby causing patrimonial harm to somebody, is required (Mavros on
intention)
Relevant cases for arson
- Dalindeybo
- Van Zyl
Assault
- Conduct: application of force to another (Jolly) or a threat to inspire fear (Miya)
- Unlawfulness: infringement of bodily integrity (Marx)
- Causation: materially defined. There must be a causal link between threat and
infringement of bodily integrity (Snyman)
- Capacity: presumed as per section 78(1A) CPA
- Fault: intention (Jolly)
Principles for Assault
- Force can be applied directly or indirectly (Jolly on conduct)
- There must firstly be a threat imminent or immediate harm; it must secondly be
reasonable for the victim to believe this threat and lastly that the accused is
capable of carrying out this threat (Miya at 289 on unlawfulness)
- If, for some reason, X believed that her threats would not be taken seriously by Y,
she lacked the required intention (Mtimunye on intention)
Distribution of this document is illegal
Criminal Law
Content
- Translated elements
- Principles for each crime
- Practice questions answers and mini case summaries
Translated elements and principles
Crimes
1. Incomplete offences
2. Arson
3. Assault
4. Theft
5. Robbery
6. Fraud
7. Drug possession
Incomplete Offences
- Attempt
- Conspiracy
- Incitement
Attempt
- Conduct: the conduct must be consummated (Nhlovo)
- Unlawfulness: there must be a connection to the crime. Section 18(1) Riotous
Assemblies Act
- Causation: formally defined. Causation only applies to consequence crimes.
Attempt is not a consequence crime (Ngobese)
- Capacity: presumed unless proven otherwise as per Section 78(1A) of the
Criminal Procedure Act
Distribution of this document is illegal
,Kaya Borkowski
- Fault: not specified by Riotous Assemblies Act but there exists a presumption
that fault is an essential element of crime (De Blom). There must be an intention
to commit the crime (not intention to attempt to commit) (Schoombie) or attempt
requires intention (Nhlovo)
Note: for conduct, the test is whether the commencement of consummation
occurred, not just mere preparation (Schoombie)
Principles for Attempt
- Regardless of whether the attempt is complete, it will be punishable if it were a
complete attempt at the point where there the commencement of consummation
has begun(Schoombie on conduct)
- Mere preparation is not punishable (Schoombie on conduct)
- Voluntary withdrawal is still punishable because the accused’s acts had already
reached the stage of consummation (Hlatwayo on conduct)
Relevant cases for attempt
- S v Masilela (strangled and assaulted victim, set house alight and left)
- Nhlovo (asked someone to put poison in someone else’s food)
- Schoombie (attempted arson. Poured petrol around shop to set it alight but was
interrupted)
Conspiracy
- Conduct: an agreement to commit a crime (Ngobese)
- Unlawfulness: agreement to commit a crime (Ngobese) (s 18(2)(a) of the
Riotous Assemblies Act)
- Causation: formally defined so not required (Ngobese; Snyman)
- Capacity: presumed as per s78(1A) CPA
- Fault: intention (Ngobese)
Principles for Conspiracy
- the liability of the accused is established upon overt manifestation of assent to
the conspiracy by the other person (Ngobese on conduct)
- Conspiracy can be tacit (Ngobese on conduct)
- If there is no meeting of the minds, conduct cannot be established (Harris* on
conduct)
Distribution of this document is illegal
,Kaya Borkowski
*Harris is not a prescribed case and is older than Ngobese but both are HC
judgements so could be useful
Relevant cases for conspiracy
- Ngobese (conspired to kill someone, other person said minds did not meet)
Incitement
- Conduct: conduct: seeking to influence the mind of another towards the
commission of a crime (Nkosiyana)
- Unlawfulness: section 18(2)(b) Riotous Assemblies Act
- Capacity: presumed as per section 78(1A) CPA
- Causation: formally defined so does not need to be proven (Snyman)
- Fault: intention (Nkosiyana)
Principles for Incitement
- The inciter does not need to persuade the incitee to be held liable (Nkosiyana on
conduct)
- The accused does not need to know the identity of the person or persons incited.
In fact, incitement can be directed even at a crowd of unknown people (Segale
on conduct)
Relevant cases for incitement
- Nkosiyana (arranged to assassinate a political leader. Accused claimed he did
not incite the under cover cop)
Arson
- Conduct: setting fire (Dalindyebo)
- Unlawfulness: infringement of property rights in relation to immoveable property
and also serves to protect community interests in protecting against the danger
of fire-setting to others (Snyman; Dalindyebo)
- Causation: materially defined (Snyman)
- Capacity: presumed as per s78(1A) CPA
- Fault: intention (Van Zyl)
Distribution of this document is illegal
, Kaya Borkowski
Principles for arson
- it is unlawful to set fire to one's own property where there is an intention to harm
another (Dalindyebo on unlawfulness)
- X commits arson if he sets fire to his own insured property in order to claim its
value from the insurer (Van Zyl on unlawfulness)
- X commits arson if he sets fire to his own property if it could injure another (Van
Zyl on unlawfulness)
- Intention, and more particularly an intention to damage property by setting fire to
it, thereby causing patrimonial harm to somebody, is required (Mavros on
intention)
Relevant cases for arson
- Dalindeybo
- Van Zyl
Assault
- Conduct: application of force to another (Jolly) or a threat to inspire fear (Miya)
- Unlawfulness: infringement of bodily integrity (Marx)
- Causation: materially defined. There must be a causal link between threat and
infringement of bodily integrity (Snyman)
- Capacity: presumed as per section 78(1A) CPA
- Fault: intention (Jolly)
Principles for Assault
- Force can be applied directly or indirectly (Jolly on conduct)
- There must firstly be a threat imminent or immediate harm; it must secondly be
reasonable for the victim to believe this threat and lastly that the accused is
capable of carrying out this threat (Miya at 289 on unlawfulness)
- If, for some reason, X believed that her threats would not be taken seriously by Y,
she lacked the required intention (Mtimunye on intention)
Distribution of this document is illegal
