Are several
CRIMINAL LAW
LCR500 2024
,TOPIC 1: INTRODUCTION TO CRIMINAL LAW
INTRODUCTORY TOPICS
CRIMINAL LAW AND THE LEGAL SYSTEM
Public law Private law
oRelationship oRelationships
between state between
as authoritative individuals as
power and subject of legal
subjects of the order
state oState is
oRelationship authoritative
between power and
different states always a party
Substantive Law
•Substantive legal rules that
set out the rights and
duties of subjects/state
•Criminal law
Formal law
•Rules setting out
procedure/methods by
which rules of substantive
law are enforced
•Criminal procedural law
CRIMES AND DELICTS
Crimes Delicts
1
,Directed against public interests Directed against private interests
Form part of public law Form part of private law
State prosecutes Private party institutes action
Results in imposition of punishment by Results in guilty party being ordered to
the state pay damages to injured party
State prosecutes perpetrator irrespective Injured party can choose whether to
of the desires of the private individual claim damages or not
Trial governed by rules of criminal Trial governed by rules of civil procedure
procedure
CRIMES V OFFENCES
Crime Offence
• Conduct prohibited • Conduct prohibited
by common law by statute
SOURCES OF CRIMINAL LAW
LEGISLATION
• Act creating a crime/relating to a provision relating to determining criminal
liability must have priority over common law
• Substantive criminal law has not yet been codified
• Constitution > all legislation in importance
o All rules of law must be compatible with BoR
o Incompatible = null and void
2
,CASE LAW
• Court’s role in describing and developing criminal law
• Principle of judicial precedent:
o lower court is bound to follow construction place on law by a higher court
o higher court bound by earlier interpretation of law by same division
COMMON LAW
• Rules of law not contained in act of parliament/legislation
• Still as binding as any legislation
• Roman-Dutch common law: influence on SA criminal law is declining
o Courts have already garnered the wisdom of old sources
o Technological age is characterised by different needs and problems
• Historical method of researches is impeded upon in criminal law
o Old authorities were more concerned with punishment than prerequisites
for liability
o Contradicted e/o
o Did not discuss general principles of criminal law on a systematic basis
o Knowledge of psychology and human motivation was limited = views on
criminal capacity of mentally ill persons or of youths are not applicable
anymore
BILL OF RIGHTS
• BoR applies to executive, judiciary, and all organs of state
• No sovereign parliament
• All rules of law must be compatible with the BoR
• BoR prohibits discrimination based on race, gender, religion, or language
• BoR creates rights to dignity, life, freedom of person, etc
o Also second generation rights: right to clean environment, access to
adequate housing, etc
o No provision made for right to environment as free as possible of crime,
or a right to adequate protection against crime
• Section 36: rights of BoR may be limited in terms of law of general application…
3
, o Only to extent that limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom
o And taking into account certain factors set out in the section
o RIGHTS ARE THEREFORE NOT ABSOLUTE AND MAY BE
RESTRICTED!
• New human rights culture has been created and influences criminal law
THEORIES OF PUNISHMENT
Theories of
punishment
Absolute Relative Combination
theory theories theory
Retributive Preventive Deterrent Reformative
Individual
deterrence
General
deterrence
ABSOLUTE V RELATIVE THEORIES
Absolute
•Retributive theory: punishment is an Relative
end in itself, or the offender's just
desert •Punishment is only a means to a secondary
•Backwards-looking end or purpose
•Preventative: prevention of crime
•Deterrent: deterring from crime
•Reformative: reforming the criminal
•Forward-looking
4
,RETRIBUTIVE THEORY
• Punishment is justified as it’s
X’s just desert
• Restores legal balance
disturbed by crime
• Payment X owes society
• Legal order offers everyone in
society an advantage while
also burdening them with
obligation
o Advantage: protected by the law, exists only as long as they fulfil their
obligation of not infringing on other people’s rights
o Evenly balanced scale: person has advantage of legal protection, and
must control self to not injure someone else’s interests, thus balancing
out the advantages and disadvantages
• Reciprocity principle; advantage has a price that is paid when X infringes
someone’s advantage
o Retribution thus restores the legal balanced as it’s been disturbed by the
commission of the crime
• Punishment is not justified with some future benefit, and retribution is seen as
an essential characteristic of punishment.
Degree of punishment must be in proportion to the degree of harm
• Less the harm, less the punishment, as the debt owed to society is smaller
• Proportionality between harm and punishment: link w/ principle of equality, and
is inherent in principle of justice
o Right to equality = BoR
• Proportional relationship = important to imposition of punishment
o Punishment presupposes idea of retribution
o Punishment is directly related to completed crime and idea of justice
Expresses society’s condemnation of the crime
5
, • X commits a crime and sends out the message that he is ‘dominant’ to the
person against whom the crime is committed
• Punishment via retribution cancels this dominance and brings X down to the
same level as the victim
Retribution respects free will and explains the necessity of culpability
requirement
Indeterministic construction
Retributive theory Relative theories
Man has free will Man does not have
Deterministic construction
Man can be free will, but is a
praised/blamed for product of his
actions environment
They bring Cannot be blamed
punishment upon
themselves
• Blameworthiness is an essential element for criminal liability (mens rea / fault),
therefore the culpability requirement is best explained by the retributive theory.
Retribution respects human dignity
• Where retribution views X as a cog in a machine, the deterministic construction
on which retribution is based, views X as the master of his fate
o When X has served his due, he may re-enter society as an equal
• Whereas the utilitarian justification views X as an exception, someone
‘different’, who carries with them the sense of guilt for their entire life
PREVENTATIVE THEORY
• Purpose of punishment is prevention of crime
• Incapacitation theory: incapacitate X so that they can’t commit the crime again
6
, o Protection of society
• Success depends on ability
of courts to ascertain for how
long to remove X from
society
o Difficult, but criminal
record might act as
guideline
THEORY OF INDIVIDUAL
DETERRENCE
• Offender as an individual is
deterred from the commission of further crimes
• Not successful: high percentage of recidivism
THEORY OF GENERAL DETERRENCE
• Punishment is meant to deter society from committing a crime
• Instil fear in society to refrain from criminal conduct
• Common misconception
o Severity of punishment is NB for effectiveness
o Instead, effectiveness is based on how probable it is that an offender will
be caught, convicted and serve their sentence
▪ Obviously, not a great look for South Africa
• Criticism:
This theory is It's never been The culpability Can impose a
1: Man isn't rational
4: Proportionality
3: Culpability
2: Never proven
based on the proven that the requirement punishment
utilitarian average person is cannot be disproportional to
approach and deterred from explained by the harm inflicted
presupposes man committing a merely relying on Person is
always acts crime by the this theory sacrificed for
rational punishment A person can be community's sake,
This is not true imposed upon deterred by degraded as an
others punishing those instrument to
who are not further the goal fo
culpable deterrence
7
,REFORMATIVE THEORY
• Punishment is meant to reform the offender as a person into a normal, law-
abiding citizen
• Emphasis is not on the crime nor the harm suffered, but on the offender as a
person and their personality
Criticisms
1: punishment 5: not necessary
does not need to to wait for
2: difficult to 4: ideal rather
be proportionate 3: most effective person to
ascertain how than reality; look
to the harm when offenders commit a crime
long it will take at high % of
inflicted or are young before
to reform recidivism
degree of legal instituting
violation reformation
COMBINATION THEORY
• No single theory is correct to the exclusion of others
• Retribution theory often forms the basis of the punishment approach
o It’s importance rests on the culpability requirement and proportionality
requirement
▪ Proportionality between punishment and blameworthiness, as
well as punishment and harm done
• This theory affords weight to each particular theories based on the nature of the
case
8
, Degree of harm /
Crime Seriousness of
violation (retributive)
Personal
circumstances of
Criminal
offendor
(reformative)
Society must be
protected from a
Zinn triad
dangerous criminal
(preventative)
Community must be
Interest in society deterred from crime
(deterrence)
society wishes to
Interest of the victim
punish criminals
(S v Matyityi)
(retributive)
• No rigid formula, as each case is unique
• Sentencing is an individualised exercise
EVALUATION
• Retribution should receive higher priority to protect society
• S 51 of Criminal Law Amendment Act
o Minimum sentencing
o Mandatory life imprisonment (unless substantial and compelling
reasons)
▪ However: this does fetter judicial discretion
• South Africa does not have the financial means to realise reformation ideals
PRINCIPLE OF LEGALITY
9
CRIMINAL LAW
LCR500 2024
,TOPIC 1: INTRODUCTION TO CRIMINAL LAW
INTRODUCTORY TOPICS
CRIMINAL LAW AND THE LEGAL SYSTEM
Public law Private law
oRelationship oRelationships
between state between
as authoritative individuals as
power and subject of legal
subjects of the order
state oState is
oRelationship authoritative
between power and
different states always a party
Substantive Law
•Substantive legal rules that
set out the rights and
duties of subjects/state
•Criminal law
Formal law
•Rules setting out
procedure/methods by
which rules of substantive
law are enforced
•Criminal procedural law
CRIMES AND DELICTS
Crimes Delicts
1
,Directed against public interests Directed against private interests
Form part of public law Form part of private law
State prosecutes Private party institutes action
Results in imposition of punishment by Results in guilty party being ordered to
the state pay damages to injured party
State prosecutes perpetrator irrespective Injured party can choose whether to
of the desires of the private individual claim damages or not
Trial governed by rules of criminal Trial governed by rules of civil procedure
procedure
CRIMES V OFFENCES
Crime Offence
• Conduct prohibited • Conduct prohibited
by common law by statute
SOURCES OF CRIMINAL LAW
LEGISLATION
• Act creating a crime/relating to a provision relating to determining criminal
liability must have priority over common law
• Substantive criminal law has not yet been codified
• Constitution > all legislation in importance
o All rules of law must be compatible with BoR
o Incompatible = null and void
2
,CASE LAW
• Court’s role in describing and developing criminal law
• Principle of judicial precedent:
o lower court is bound to follow construction place on law by a higher court
o higher court bound by earlier interpretation of law by same division
COMMON LAW
• Rules of law not contained in act of parliament/legislation
• Still as binding as any legislation
• Roman-Dutch common law: influence on SA criminal law is declining
o Courts have already garnered the wisdom of old sources
o Technological age is characterised by different needs and problems
• Historical method of researches is impeded upon in criminal law
o Old authorities were more concerned with punishment than prerequisites
for liability
o Contradicted e/o
o Did not discuss general principles of criminal law on a systematic basis
o Knowledge of psychology and human motivation was limited = views on
criminal capacity of mentally ill persons or of youths are not applicable
anymore
BILL OF RIGHTS
• BoR applies to executive, judiciary, and all organs of state
• No sovereign parliament
• All rules of law must be compatible with the BoR
• BoR prohibits discrimination based on race, gender, religion, or language
• BoR creates rights to dignity, life, freedom of person, etc
o Also second generation rights: right to clean environment, access to
adequate housing, etc
o No provision made for right to environment as free as possible of crime,
or a right to adequate protection against crime
• Section 36: rights of BoR may be limited in terms of law of general application…
3
, o Only to extent that limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom
o And taking into account certain factors set out in the section
o RIGHTS ARE THEREFORE NOT ABSOLUTE AND MAY BE
RESTRICTED!
• New human rights culture has been created and influences criminal law
THEORIES OF PUNISHMENT
Theories of
punishment
Absolute Relative Combination
theory theories theory
Retributive Preventive Deterrent Reformative
Individual
deterrence
General
deterrence
ABSOLUTE V RELATIVE THEORIES
Absolute
•Retributive theory: punishment is an Relative
end in itself, or the offender's just
desert •Punishment is only a means to a secondary
•Backwards-looking end or purpose
•Preventative: prevention of crime
•Deterrent: deterring from crime
•Reformative: reforming the criminal
•Forward-looking
4
,RETRIBUTIVE THEORY
• Punishment is justified as it’s
X’s just desert
• Restores legal balance
disturbed by crime
• Payment X owes society
• Legal order offers everyone in
society an advantage while
also burdening them with
obligation
o Advantage: protected by the law, exists only as long as they fulfil their
obligation of not infringing on other people’s rights
o Evenly balanced scale: person has advantage of legal protection, and
must control self to not injure someone else’s interests, thus balancing
out the advantages and disadvantages
• Reciprocity principle; advantage has a price that is paid when X infringes
someone’s advantage
o Retribution thus restores the legal balanced as it’s been disturbed by the
commission of the crime
• Punishment is not justified with some future benefit, and retribution is seen as
an essential characteristic of punishment.
Degree of punishment must be in proportion to the degree of harm
• Less the harm, less the punishment, as the debt owed to society is smaller
• Proportionality between harm and punishment: link w/ principle of equality, and
is inherent in principle of justice
o Right to equality = BoR
• Proportional relationship = important to imposition of punishment
o Punishment presupposes idea of retribution
o Punishment is directly related to completed crime and idea of justice
Expresses society’s condemnation of the crime
5
, • X commits a crime and sends out the message that he is ‘dominant’ to the
person against whom the crime is committed
• Punishment via retribution cancels this dominance and brings X down to the
same level as the victim
Retribution respects free will and explains the necessity of culpability
requirement
Indeterministic construction
Retributive theory Relative theories
Man has free will Man does not have
Deterministic construction
Man can be free will, but is a
praised/blamed for product of his
actions environment
They bring Cannot be blamed
punishment upon
themselves
• Blameworthiness is an essential element for criminal liability (mens rea / fault),
therefore the culpability requirement is best explained by the retributive theory.
Retribution respects human dignity
• Where retribution views X as a cog in a machine, the deterministic construction
on which retribution is based, views X as the master of his fate
o When X has served his due, he may re-enter society as an equal
• Whereas the utilitarian justification views X as an exception, someone
‘different’, who carries with them the sense of guilt for their entire life
PREVENTATIVE THEORY
• Purpose of punishment is prevention of crime
• Incapacitation theory: incapacitate X so that they can’t commit the crime again
6
, o Protection of society
• Success depends on ability
of courts to ascertain for how
long to remove X from
society
o Difficult, but criminal
record might act as
guideline
THEORY OF INDIVIDUAL
DETERRENCE
• Offender as an individual is
deterred from the commission of further crimes
• Not successful: high percentage of recidivism
THEORY OF GENERAL DETERRENCE
• Punishment is meant to deter society from committing a crime
• Instil fear in society to refrain from criminal conduct
• Common misconception
o Severity of punishment is NB for effectiveness
o Instead, effectiveness is based on how probable it is that an offender will
be caught, convicted and serve their sentence
▪ Obviously, not a great look for South Africa
• Criticism:
This theory is It's never been The culpability Can impose a
1: Man isn't rational
4: Proportionality
3: Culpability
2: Never proven
based on the proven that the requirement punishment
utilitarian average person is cannot be disproportional to
approach and deterred from explained by the harm inflicted
presupposes man committing a merely relying on Person is
always acts crime by the this theory sacrificed for
rational punishment A person can be community's sake,
This is not true imposed upon deterred by degraded as an
others punishing those instrument to
who are not further the goal fo
culpable deterrence
7
,REFORMATIVE THEORY
• Punishment is meant to reform the offender as a person into a normal, law-
abiding citizen
• Emphasis is not on the crime nor the harm suffered, but on the offender as a
person and their personality
Criticisms
1: punishment 5: not necessary
does not need to to wait for
2: difficult to 4: ideal rather
be proportionate 3: most effective person to
ascertain how than reality; look
to the harm when offenders commit a crime
long it will take at high % of
inflicted or are young before
to reform recidivism
degree of legal instituting
violation reformation
COMBINATION THEORY
• No single theory is correct to the exclusion of others
• Retribution theory often forms the basis of the punishment approach
o It’s importance rests on the culpability requirement and proportionality
requirement
▪ Proportionality between punishment and blameworthiness, as
well as punishment and harm done
• This theory affords weight to each particular theories based on the nature of the
case
8
, Degree of harm /
Crime Seriousness of
violation (retributive)
Personal
circumstances of
Criminal
offendor
(reformative)
Society must be
protected from a
Zinn triad
dangerous criminal
(preventative)
Community must be
Interest in society deterred from crime
(deterrence)
society wishes to
Interest of the victim
punish criminals
(S v Matyityi)
(retributive)
• No rigid formula, as each case is unique
• Sentencing is an individualised exercise
EVALUATION
• Retribution should receive higher priority to protect society
• S 51 of Criminal Law Amendment Act
o Minimum sentencing
o Mandatory life imprisonment (unless substantial and compelling
reasons)
▪ However: this does fetter judicial discretion
• South Africa does not have the financial means to realise reformation ideals
PRINCIPLE OF LEGALITY
9
