Prohibition vs Injunction: Key Differences in Law

Study Notes

Prohibition is a common law or statutory provision that prohibits a specific positive act, and if committed, it becomes an offence.
Injunction is a legal duty to perform a specific act, and failure to do so leads to criminal liability.

An omission is when X fails to act where there is a legal duty to perform a positive act.
Omissions are only punishable if there is a legal duty to perform a positive act and X fails to act.
Omissions can arise from:
- Special relationship (e.g. parent and child, employer and employee)
- Statutory duty provided by statutory provision
- Official duty by virtue of a contract
- Prior conduct
- Court order
- Legal convictions of society (boni mores criteria)

Mahlangu, an employee, failed to disclose information about a potential robbery to his employer, leading to the employer's death.
Court held that there was a duty on Mahlangu to report the information by virtue of the special relationship between employer and employee.
Mahlangu was found guilty of culpable homicide.

A legal duty to act can arise from the office held, e.g. a police official's duty to report offences.
Williams case: Williams, a police official, failed to report offences and was charged as an accomplice.

Kramer case: A surgeon and anesthesiologist were charged with culpable homicide after a patient died due to the anesthesiologist's mistake.
Court held that the surgeon had no duty to check the anesthesiologist's work.

Prior conduct can create a legal duty to act, e.g. assuming responsibility for a potentially hazardous situation.

Banda case: Banda was charged with high treason and argued that he was obeying his superior's orders, but the court rejected this defence.
The court held that failing to execute a manifestly unlawful order does not result in criminal liability.

A legal duty to act can arise from a court order, and failure to comply can be unlawful.
Example: Failure to pay maintenance to a spouse as ordered by the court.