Criminal Law 171
Class notes & Case Summaries
Semester 1, Term 1
2020
,1 General Introduction
1.1 What is Criminal Law?
- Criminal Law:
o Crimes
o Punishment
WHAT IS A CRIME?
It is what criminal law defines to be a crime.
WHAT MAKES A CRIME?
1. Conduct
2. Causation
3. Unlawfulness
4. Criminal Activity
5. Fault
a. Intent
b. Negligence
PUNISHMENT
- Definition:
o Deprivation of liberty, property or infliction of suffering
TO:
1. Inflict suffering
a. To get revenge and show social condemnation
2. Exact revenge
3. Express social condemnation
4. Prevent crime
5. Rehabilitate the criminal
6. Achieve restorative justice
a. Non-punitive resolution of disputes arising from infliction of harm
through a process of involving the victim, offender and community.
1.2 What is a crime?
VALUES & INTERESTS PROTECTED BY APPLICATION OF CRIMINAL LAW:
(i.e. Reasons for criminalisation)
Values are:
1. Human & Civil rights such as:
a. Examples of rights to be protected:
i. Right to life
ii. Right to property
iii. Right to bodily integrity
b. Harm to the victim provides reason for punishment.
1
,2. Individual autonomy & responsibility
a. Each individual should be responsible for his/her own behaviour.
3. Public (Collective) welfare
a. Recognises social context and collective goals.
b. Which risks Paternalism
c. Regulations
i. E.g. Health
ii. Minimum food standards
4. Maintenance of government of the State
a. Is a crime to protect the different branches of government.
b. Treason, Sedition
i. Protect democracy
c. Perjury, contempt of court
i. Protects Judicial branch
d. Bribery, corruption
i. Ensures that there is an honest administration and executive
branch.
5. Morality
a. Not necessarily harmful, still criminalised.
b. Criminalises what some people feel are right
i. E.g. according to Christian values, etc.
2
, 1.3 CRIMINALISATION
DEFINITION:
1. The process whereby
2. a competent lawmaker
3. defines and prohibits conduct
4. that is:
a. Inherently bad,
b. Shameful
5. According to the material definition of a crime
6. as a crime.
WHAT IS A CRIME?
1. If the offender can be prosecuted and punished, then it is a crime.
a. According to the procedural definition of a crime.
Competent lawmakers:
1. Parliament/ The legislature
- Statutory law (legislation).
à Originates from Parliament.
à Laws enacted by Parliament.
2. Common Law
- Originates from old SA legal sources.
- Many serious crimes have no statutes explicitly making them crimes,
e.g. murder.
- No new common law crimes may be created.
*Note: SA law: not one single place where all laws are written down (no
criminal code).
WHY NOT CRIMINALISE?
• By over-criminalising it:
o Undermines the authority of Criminal Law.
o Stigmatises individuals as criminals.
§ Crime must be so serious that it outweighs the stigma.
§ Note: Fair Labelling
o Encourages crime
§ Drugs, prostitution, organs, human trafficking
§ No government policy, it’s unregulated.
§ It creates a larger black market (crime higher).
o Overloads the criminal justice system.
3
, 2. Punishment Theories
AIM:
- To explain why we punish
- To explain what punishment is appropriate for a particular.
TYPES OF PUNISHMENT:
n Imprisonment
n Paying a fine
n Community Service
n Suspended Sentence
n Possible others
2.1 Absolute or Retributive Theory
(Punishment itself is the aim)
1. Punishment that is deserved (Absolute & Retributive)
a. Retributive Theory
i. Retribution definition
1. Restoring of the legal balance that has been disturbed by
the commitment of a crime.
b. Want to restore balance, but not too much, i.e. not vengeance.
(Balance the scale)
i. Punishment is therefore justified (Perpetrator’s just desert)
ii. Punishment is “payment” for wrongdoing.
c. FOCUS:
§ Appeasement
• To what extent must victim’s voice be heard?
• Also shows community’s condemnation of the crime.
§ Just desert
• Punishment must be fitting to the crime.
• Proportionality
1
Class notes & Case Summaries
Semester 1, Term 1
2020
,1 General Introduction
1.1 What is Criminal Law?
- Criminal Law:
o Crimes
o Punishment
WHAT IS A CRIME?
It is what criminal law defines to be a crime.
WHAT MAKES A CRIME?
1. Conduct
2. Causation
3. Unlawfulness
4. Criminal Activity
5. Fault
a. Intent
b. Negligence
PUNISHMENT
- Definition:
o Deprivation of liberty, property or infliction of suffering
TO:
1. Inflict suffering
a. To get revenge and show social condemnation
2. Exact revenge
3. Express social condemnation
4. Prevent crime
5. Rehabilitate the criminal
6. Achieve restorative justice
a. Non-punitive resolution of disputes arising from infliction of harm
through a process of involving the victim, offender and community.
1.2 What is a crime?
VALUES & INTERESTS PROTECTED BY APPLICATION OF CRIMINAL LAW:
(i.e. Reasons for criminalisation)
Values are:
1. Human & Civil rights such as:
a. Examples of rights to be protected:
i. Right to life
ii. Right to property
iii. Right to bodily integrity
b. Harm to the victim provides reason for punishment.
1
,2. Individual autonomy & responsibility
a. Each individual should be responsible for his/her own behaviour.
3. Public (Collective) welfare
a. Recognises social context and collective goals.
b. Which risks Paternalism
c. Regulations
i. E.g. Health
ii. Minimum food standards
4. Maintenance of government of the State
a. Is a crime to protect the different branches of government.
b. Treason, Sedition
i. Protect democracy
c. Perjury, contempt of court
i. Protects Judicial branch
d. Bribery, corruption
i. Ensures that there is an honest administration and executive
branch.
5. Morality
a. Not necessarily harmful, still criminalised.
b. Criminalises what some people feel are right
i. E.g. according to Christian values, etc.
2
, 1.3 CRIMINALISATION
DEFINITION:
1. The process whereby
2. a competent lawmaker
3. defines and prohibits conduct
4. that is:
a. Inherently bad,
b. Shameful
5. According to the material definition of a crime
6. as a crime.
WHAT IS A CRIME?
1. If the offender can be prosecuted and punished, then it is a crime.
a. According to the procedural definition of a crime.
Competent lawmakers:
1. Parliament/ The legislature
- Statutory law (legislation).
à Originates from Parliament.
à Laws enacted by Parliament.
2. Common Law
- Originates from old SA legal sources.
- Many serious crimes have no statutes explicitly making them crimes,
e.g. murder.
- No new common law crimes may be created.
*Note: SA law: not one single place where all laws are written down (no
criminal code).
WHY NOT CRIMINALISE?
• By over-criminalising it:
o Undermines the authority of Criminal Law.
o Stigmatises individuals as criminals.
§ Crime must be so serious that it outweighs the stigma.
§ Note: Fair Labelling
o Encourages crime
§ Drugs, prostitution, organs, human trafficking
§ No government policy, it’s unregulated.
§ It creates a larger black market (crime higher).
o Overloads the criminal justice system.
3
, 2. Punishment Theories
AIM:
- To explain why we punish
- To explain what punishment is appropriate for a particular.
TYPES OF PUNISHMENT:
n Imprisonment
n Paying a fine
n Community Service
n Suspended Sentence
n Possible others
2.1 Absolute or Retributive Theory
(Punishment itself is the aim)
1. Punishment that is deserved (Absolute & Retributive)
a. Retributive Theory
i. Retribution definition
1. Restoring of the legal balance that has been disturbed by
the commitment of a crime.
b. Want to restore balance, but not too much, i.e. not vengeance.
(Balance the scale)
i. Punishment is therefore justified (Perpetrator’s just desert)
ii. Punishment is “payment” for wrongdoing.
c. FOCUS:
§ Appeasement
• To what extent must victim’s voice be heard?
• Also shows community’s condemnation of the crime.
§ Just desert
• Punishment must be fitting to the crime.
• Proportionality
1
