Introduction to South African Law

Substantive (Material) Law

• Consists of legal rules defining the rights and duties of individuals under the state

Private Law

• It concerns legal relationships between private individuals and their property

Public Law

• Deals with legal relationships between the state and private individuals
• Also covers legal relationships between states
• Criminal law falls under public law, addressing human conduct that constitutes crimes and their punishments

Formal Law

• Sets out the procedures and methods to enforce substantive law

Law of Evidence

• It governs how facts are proven in criminal and civil cases

Criminal Procedure

• Sets forth the procedures and methods to enforce laws in criminal cases

Civil Procedure

• It defines the rules and procedures in civil cases

Delict Defined

• It refers to an unlawful, blameworthy act or omission
• Results in damage to another, entitling the injured party to compensation
• Injured party can initiate legal action for damages against the offender

Crime Defined

• It is an unlawful, blameworthy conduct punishable by the state
• Conduct is legally forbidden
• Only prosecuted by the state
• Always results in punishment

Crimes vs Delicts

• Crimes are directed against public interest, while delicts target private interests
• Crimes fall under public law, delicts under private law
• The state prosecutes crimes, whereas private parties initiate action for delicts
• Crimes lead to state-imposed punishment
• Delicts may or may not result in damages being ordered
• The state prosecutes crimes irrespective of the victim's desires, but the injured party decides whether to claim damages for a delict
• Criminal trials follow criminal procedure rules, while delict trials follow civil procedure rules

Common Law vs Statute

• Conduct prohibited by common law is termed "crimes"
• Conduct prohibited by statute is termed "offences"

Sources of Criminal Law

• Legislation, case law, and common law are sources of criminal law

Legislation

• An act creating a crime or determining criminal liability takes precedence over common law

Specific Crimes

• Crimes like murder, assault, and theft are not statutorily defined, and their requirements are found in common law

Common Law

• If a rule is incompatible with the Bill of Rights, it can be declared invalid

Case Law and Judicial Precedent

• Lower courts must follow legal interpretations by higher courts

Common Law Rules

• Common law rules not in Acts of Parliament or subordinate legislation are still binding

Roman-Dutch Law

• South Africa's common law is Roman-Dutch law
• It originated in Rome about 2500 years ago
• Received in the Netherlands from the late thirteenth to the end of the sixteenth centuries
• Justinian ordered the compilation of scattered Roman law texts into the Corpus luris Civilis
• Corpus luris Civilis consists of Institutiones, Digesta or Pandectae, Codex, and Novella
• Roman law was studied by jurists in Italy, known as Glossators and Commentators

Roman-Dutch Law Legal System

• Developed from the reception of Roman law in the Netherlands
• Included the fusion of Roman law and local customary law
• Influential Dutch jurists include Damhouder, Matthaeus, Moorman, Van der Keessel, Van Leeuwen, Huber, Voet, Van der Linden, and Hugo de Groot (Grotius)

Dutch East India Company

• Officials applied Roman-Dutch law at the Cape after 1652

English Colony

• The Cape became an English colony in 1795 and finally in 1806, but English law did not replace Roman-Dutch law as the common law

Roman-Dutch Law Spread

• It spread to various territories and colonies that formed the Union of South Africa in 1910

Criminal Law Influence

• Roman-Dutch writers' influence criminal law is declining
• Courts use old sources and recognize the distinctive needs and problems of the modern technological age
• The historical method of research in criminal law is impeded by factors such as concern for punishment over liability prerequisites, contradictions among old authorities, a lack of systematic discussion of general principles, and limited knowledge of psychology and human motivation

English Law's Influence

• English law influenced general and criminal law despite not replacing Roman-Dutch law when the Cape became an English colony
• Conduct punishable was often categorized differently
• Common law had deficiencies, Roman-Dutch writers' expositions were sometimes contradictory, and crime descriptions were vague
• English law influenced the appellation and subdivision of specific crimes, as well as specific crime requirements
• General criminal law principles were less affected
• Concepts like "unlawfulness", "grounds of justification", "criminal capacity", and dolus eventualis, are unknown in English law

Theories of Punishment

• Address the justification for and the specific punishment that should be imposed

Absolute Theory

• Includes retribution
• Punishment is an end in itself, a just desert

Relative Theory

• Utilitarian, teleological, or purpose theories
• Punishment is a means to a secondary end
• Preventative, deterrent, and reformative theories are relative theories

Preventative Theory

• Aims to prevent crime

Deterrent Theory

• Designed to deter the individual or society from committing crimes

Reformative Theory

• Focuses on reforming the criminal

Relative Theories Focus

• The emphasis is on the desired object, for example, prevention or reformation

Absolute Theory Focus

• It looks retrospectively at the crime committed

Retributive Theory Focus

• Retribution should be prioritized more than individual interests
• Protecting society and combating crime should have the highest priority
• It restores the legal balance disturbed by the crime

Punishment

• The payment of the account offenders owe to society because of their crime

Legal Order

• It offers advantages and burdens, protecting rights while obligating members to refrain from infringing on others
• Reciprocity exists between advantage and duty

Punishment Extent

• It must be proportionate to the harm done or the violation of the law

Retributive Theory Operation

• Operates within an indeterministic view of society
• Presupposes free will

Relative/Utilitarian Theories

• Operate within a deterministic view
• Man does not have freedom of choice but is the victim of outside forces like heredity

Reformative Theory

• It views the transgressor as a "sick" person who can be changed by therapy

Preventative Theory Purpose

• The purpose of capital punishment, life imprisonment and the forfeiture of a driver's license is the prevention of crime

Preventative Theory Success

• It depends on the court's ability to determine which accused are dangerous

Individual Deterrence

• Deters the specific offender from committing more crimes
• The purpose is to teach the individual a lesson

Reason for Individual Deterrence

• Addresses civicism and offenders who continue to commit crimes after release

General Deterrence

• Deters the whole community from committing crimes
• Its purpose is to deter society

General Deterrence Belief

• Punishment sends a message to society, instilling fear and preventing unlawful activities

Success of Deterrence

• Depends on the probability of being caught, convicted, and serving a sentence

Theory Premise

• Man prefers the painless to the painful and is rational

Reformative Theory Purpose

• To reform offenders into law-abiding members of the community

Emphasis of Reformative Theory

• The focus is on the personality of the offender
• Crime stems from a personality defect or psychological factor

Key Considerations

• Courts consider crime, the criminal, and society's interests when determining sentences

Victim Interests

• The interests of the victim should be taken into account when imposing the sentence

The Principle of Legality

• Governs criminal law

Rules of Legality

• Courts can only convict if the conduct is recognized as a crime by law (ius acceptum)
• The conduct must have been recognized as a crime at the time of commission (ius praevium)
• Crimes must be clearly defined (ius certum)
• Crime definitions should be interpreted narrowly (ius strictum)
• The principles apply "mutatis mutandis" to sentencing (nulla poena)

Lus Acceptum

• The court cannot create new crimes and is bound by existing law

Fair Trial Rights

• Include not being convicted of an act that was not an offense at the time
• New crimes can only be created by legislation, not all transgressions are crimes, such as breaches of contract

Punishment Limits

• Courts cannot impose a punishment unless it is recognized by law

Lus Acceptum and Parliament

• Legislation should explicitly declare the criminal conduct and parameters for punishment
• Courts should only assume a new crime if the Act clearly indicates it

Legal Norm

• A rule of law in an Act, the infringement of which is not a crime

Criminal Norm

• A provision clearly stating that certain conduct is a crime

Criminal Sanction

• A provision prescribing the limits of punishment a court must impose

Ius Praevium

• Nobody should be found guilty of a crime unless the conduct was already recognized

Punishment and Ius Praevium

• If the punishment increases, it shouldn't negatively affect someone who committed the crime before the increase

Ius Certum

• Absolute clarity is unnecessary
• Reasonable clarity is sufficient in formulating crimes

Punishment Definition and Ius Certum

• Legislators should define punishment clearly

lus Strictum

• Provisions should be in favour of X
• Should be interpreted strictly, against the state

Ambiguous Ius Strictum

• Court must interpret strictly

Rationale of Legality

• Criminal law rules should be as clear as possible so that people know how to avoid committing crimes

Constitutionality

• Legality is incorporated in section 35(3)(I) and (n) of the South African constitution

Conduct

• The first element of a crime
• Involves an act (positive conduct) or omission (negative conduct/failure to act when there is a legal duty)

Thoughts and Punishment

• It isnt punishable
• Thinking about something or making a decision is not punishable itself
• Actions must be converted to crime, utterance of words may constitute a crime

Voluntary Act

• Act must be voluntary to be punishable
• If X is capable of controlling her bodily movement it is voluntary

Absolute Force (Vis Absoluta)

• Voluntariness is excluded
• X's ability to subject bodily movement is excluded

Relative Force (Vis Compulsiva)

• X has the ability to subject bodily movements but is confronted with the prospect of suffering some harm

Automatism

• Excluded

Sane Automatism

• X only behaves momentarily because of a state

Mental Illness

• X's unconscious conduct is attributed to mental pathology

Defence

• The onus to prove automatism rests on the state

Psychogenic Amnesia

• Doesn't mean that X acted involuntarily

Evidential Framework

• X needs to establish an essential evidential framework

Trigger Mechanism

• The evidence should reveal a trigger which could alter X's voluntary conduct into involuntary

X's Complete Amnesia

• The defence would show complete and true Amnesia

Legal Duty

• An omission is punishable only if there is a legal duty upon somebody

Statute

• Statute may place a duty to act positively

Common Law

• High Treason

Legal Duty Situations

• Court order
• Agreement
• Acceptance of responsibility of dangerous object
• Protective relationship
• Previous positive act

Defence of Impossibility

• Omission must be voluntary to result in criminality

Possession Elements

• Corpus and animus

Corpus

• Physical and objective element

Animus

• Subjective

Possessio Civilis

• intention is to exercise control over the article (narrow form)

Possessio Naturalis

• Exercising control doesn't intend to exercise control as owner (wider form)