CRW2602 Criminal Law 2020-2024 University of South Africa PDF

© 2019 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria CRW2602/1/2020-2024 70731586 Shutterstock.com images used Editor and Styler Revised MNB_Style Cover: "For the defence", pen-and-ink sketch by Honoré Daumier (1810–1879), French painter and caricaturist. Contents Introduction (v) PART A: Crimes against the state and the administration of justice 1 LEARNING UNIT 1: Crimes against the state 3 LEARNING UNIT 2: Crimes against the administration of justice 14 PART B: Crimes against the community 33 LEARNING UNIT 3: Crimes against public welfare 34 LEARNING UNIT 4: Sexual crimes 75 PART C: Crimes against the person 107 LEARNING UNIT 5: Crimes against life and potential life 108 LEARNING UNIT 6: Crimes against bodily integrity 114 LEARNING UNIT 7: Crimes against dignity, reputation and freedom of movement 126 PART D: Crimes against property 143 LEARNING UNIT 8: Theft 144 LEARNING UNIT 9: Robbery and receiving stolen property 160 LEARNING UNIT 10: Fraud and related crimes 168 LEARNING UNIT 11: Crimes relating to damage to property 179 LEARNING UNIT 12: Housebreaking with the intent to commit a crime 184 CRW2602/1/2020-2024 (iii) Introduction Literature and methods of study 1. GENERAL Welcome to the second module in Criminal Law. We trust that you will enjoy your study of this module. Whereas the first module (CRW2601) deals only with the general principles of criminal law, this second module deals mainly with specific crimes. It is important to note that a study of this module (CRW2602) presupposes knowledge of the content of the CRW2601 module. Therefore, if you have registered for both these modules, you should first master the general principles of criminal law (as set out in CRW2601) before you study the specific crimes discussed in this module. This is why the assignments for this module must be handed in a little later in the semester than those for the CRW2601 module. 2. COURSE OUTCOMES This course should enable you to: determine whether a person has committed one or more specific crimes (complete or incom- plete) by measuring the person's conduct and state of mind against the various elements of the specific crime or crimes 3. LITERATURE Prescribed texts There are two prescribed texts for this module, namely: (1) Snyman CR Criminal Law 6 ed (LexisNexis, Durban 2014) (2) Case Law Reader for CRW2602 The same book that is prescribed for the first module in Criminal Law is prescribed for this module. An Afrikaans edition of Snyman's work, entitled Snyman CR Strafreg 6 ed (2012), published by LexisNexis, is also available for Afrikaans-speaking students. The Case Law Reader contains all the prescribed cases and is provided to you upon registration. (v) INTRODUCTION Recommended books There are no recommended books for this module. Use of prescribed texts We wish to emphasise the fact that we expect you to read more than merely the study guide and that you should consult the prescribed text on specific topics. When reading this study guide, you may find that you do not clearly understand certain aspects of a particular topic. It is then essential that you consult the prescribed textbook on the matter. When studying a topic from the prescribed book, you need take note only of the text itself, that is, you need not also consult, study or read the footnotes as well, unless we draw your attention to one or more footnotes. For the purposes of the examination, you should, however, use the study guide as your primary source. Other works on criminal law Apart from the works already mentioned above, there are also a number of other works on criminal law. We merely draw your attention to the following works: (1) Burchell Principles of Criminal Law 5 ed (Juta 2016) (2) Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa 3 ed (Oxford University Press 2018) (3) Hoctor Coopers Motor Law 2 ed (2008, revised 2012) B9-8–B11-77 You need not buy any of these books. Although Burchell and Hoctor’s textbooks will be used in the section on road traffic offences, these excerpts will be provided to you online in electronic format. 4. METHOD OF STUDY Subdivision of study material in study guide You will notice that the discussion of the material in the study guide is subdivided into 12 learning units. A learning unit is a unit or section of the syllabus which deals with a certain topic. You can divide the time you have at your disposal (from the time you enrol until the time you write your examination) into 12 time units and then study one unit per such time unit. Please find below the entire course contents at a glance. As you will see, there are four parts in the course. Under each part, various topics with crimes listed under them appear in the different units. (vi) Introduction Contents of learning units Every learning unit is normally subdivided as follows: (1) a table of contents of the material discussed in the learning unit (2) a list of learning outcomes you should keep in mind when studying the learning unit (3) a short paragraph serving as an introduction or background to the discussion which follows (4) the actual exposition of the topic covered in the learning unit (5) activities and feedback on the activities (6) hot topics to consider and discuss (7) a concise summary of the most important principles as set out in the topic of that particular learning unit (8) a number of "test yourself" questions Apart from the above you may, in the course of the discussions, find diagrams setting out certain subdivisions of the material, as well as illustrations of certain situations or sets of facts dealt with in the discussions. The short list of study objectives mentioned under (2) above contain some of the most important aims you should keep in mind when studying that particular learning unit. However, it is important to remember that, for the examination, you must know the entire contents of the study guide. Although the "study objectives" refer to the most important aspects of a particular topic, it is not always possible to refer in this list to each and every statement, rule, principle or application of a rule found in the exposition of the particular topic. It is therefore perfectly possible that we may ask a question in the examination which is not covered in every respect by one of the study objectives listed. You should therefore ensure that you know everything in the study guide (or in the relevant portions of the prescribed book) for the examination. What the icons represent An icon is a small picture or other graphic symbol which conveys a certain message. We use the following icons in this study guide: (vii) INTRODUCTION This icon means: "Beware of the following typical mistake often made by students!" This icon means: "Note the following hint or advice on how to study a cer- tain part of the material or how to answer a question in the examination!" This icon means: "Read the judgment in the following court case which ap- pears in your Reader”. The reading of certain cases (judgments) forms an important part of your studies. As a matter of fact, it forms part of the study of all legal subjects. In the course of our discussion of criminal law we will draw your attention to the cases you must read. In Tutorial Letter 101 you will also find a list of the cases you must read. This icon means: “Focus your attention on this important fact or information”. This icon means: “Consider this interesting discussion. What is your opinion?” This icon means: "Here are some interesting texts for further reading on the specific crime”. Please note that these texts are not prescribed, and merely provided as a matter of interest. This icon means: “Study this definition”. If a sentence or sentences are printed against a grey ("coloured") square background (also called a "screened block"), the sentence or sentences contain a definition which you should know so well that you will be able to write it down in the examination. We expect you to know the definitions of certain concepts and crimes for the examination. These definitions usually consist of only one sentence (although the sentence may, admittedly, sometimes be rather long). By "know" we mean that you must be able to give us the definition in the examination substantially as it appears in the study guide. The best way would be to try and memorise the definition, but you are free to give us your own version of it. However, experience has taught us that students who do not memorise the definition but who paraphrase it, often lose marks because of deficiencies in their version of the definition. (viii) Introduction To assist you in identifying the definitions which you should master for the examination (as explained above), we have "screened" them so that they "stand out". We shall therefore not warn you repeatedly that you should know certain definitions well for the examination. You should just watch out for the "screened frame", and be aware that you should know the definition appearing in the frame well enough to write it down in the examination. Important advice on how to study At the risk of preaching to the converted, we are taking the liberty of giving you a short "curtain lecture". Students of criminal law are sometimes inclined to underestimate the subject, because it deals with human actions which are concrete and often spectacular, such as stealing, killing, raping, kidnapping, destroying. We wish to warn you against underestimating the subject. Some of the concepts of criminal law are among the most difficult in the field of law. Do not think that because you happen to read regularly of murder, rape, robbery or other crimes in the newspa- pers, you can afford to read the study guide only superficially, and to rely in the examination only on the type of broad general knowledge which the person in the street who regularly reads newspapers would have of criminal law. Try to understand the elements of offences so that you can apply them to con- crete cases. Merely memorising page upon page of the study guide without understanding the principles underlying the topics discussed, is of little use. On- ly a proper understanding of the basic principles will enable you to answer the so-called "problem" questions satisfactorily in the examination. (A "problem" question is one in which you are not asked directly to discuss a particular topic, but in which we give you a set of facts and expect you to state whether one of the persons mentioned in the set of facts has committed a particular crime or whether he or she can rely on a particular defence. You must also be able to substantiate your answers.) Furthermore, an old but sound piece of advice is that you do not move on to a new principle before you have mastered the preceding one on which it is based. We advise you to make your own notes or summaries (perhaps even in "telegram" style) while studying the specific topics. Although it is important that you understand the principles underlying a particular topic, a knowledge of the principles (or framework of a topic) only is insufficient if you are unable also to state some particulars regarding the principle (such as illustrations of its application, the authority on which these principles are based, or possible exceptions thereto). Students often ask us how important it is to remember the names of cases. Let us clarify this matter: it would be an impossible task to memorise the names of all cases referred to in your lectures, and we do not expect you to do so. However, it is a fact that decisions count among a law student's best friends, and since it is a good policy not to forget the names of one's best friends, we would advise you to concentrate on remembering the names of the most impor- tant, leading cases. As we progress through the course, we shall draw your attention to some of the most important decisions. You are also advised to underline the names of cases when re- ferring to them in the examinations. This will help the examiner to follow your submissions. (ix) INTRODUCTION However, please do not waste any valuable time attempting to memorise the case references. A case reference is the set of dates, letters and numbers following the name of the case, for example 1966 (2) SA 269 (A). In this reference, 1966 re- fers to the year in which the judgment was reported (i.e. published), the (2) to the volume number of the particular year, and the 269 to the page in the book where the judgment begins. It is unnecessary, and also a waste of time, to try to memo- rise these numbers and letters. We do not expect you to know them. Even if you fail to remember the name of an important case in the examination, you can sim- ply state: "It has been decided" or "According to a decision", et cetera. Our primary aim in the examination is not to test your memory, but your comprehen- sion and insight – but do bear in mind that proper comprehension and insight are also based on a knowledge of facts. During the year we will be issuing a number of tutorial letters. Please bear in mind that these tutorial letters form an important part of the study material which you are required to master and, in fact, may even amend the study guide. Therefore, do not ignore tutorial letters. We wish to warn you not to neglect the last portions of the study guide. We often find that, in the examination, students do reasonably well in questions dealing with topics that are dis- cussed in the first part of the study guide, but often prove to have only a superficial knowledge or none at all, of topics discussed towards the end of the study guide. You must study the whole of the study guide ― including topics which are discussed near the end. Your knowledge of some of these last topics may make the difference between failing and passing the examination! Remarks concerning specific crimes At the outset, we wish to stress that we shall not – indeed cannot – discuss every specific crime known in our law. There are literally hundreds, and perhaps thousands, of offences, most of them of statutory origin. It is not even possible to discuss every common-law crime. It is not uncommon for a practitioner to learn of the existence of a statutory offence for the first time when her client walks into her office with a summons in her hand. Most of the many specific crimes are common-law crimes, that is, those crimes that are not created by statute but that have existed for centuries and have been recognised as crimes from generation to generation to the present day. Examples of such crimes are murder, culpable homicide, assault, robbery and theft. We shall, however, also deal with certain statutory offences. Owing to the very broad scope of our subject, we are sometimes obliged to deal very concisely with some of the crimes. For the sake of convenience, crimes are divided into broad categories according to the object which is sought to be protected by the legal norm reflected in the definition of the crime. We shall divide the specific crimes into four broad categories, namely crimes against the state and the administration of justice, crimes against the community, crimes against the person, and crimes against property. The exact classification of the crimes will become clear to you when you consult the table of contents at the beginning of the study guide. Later in this module, the crimes of murder and culpable homicide will be dealt with. In the first parts of this module, we often refer to these two crimes as examples, to illustrate the general principles. The reason for this is that the distinguishing factors between these two crimes are intention and negligence, and these two crimes are used to illustrate the difference between crimes requiring intention, and those crimes for which negligence is required. To follow the discussion of the general principles from the beginning, it is therefore necessary to know what the definitions of these two crimes are. (x) Introduction Murder is the unlawful, intentional causing of the death of another human being. Culpable homicide is the unlawful, negligent causing of the death of another human being. The only difference between these two crimes is therefore that, whereas intention is required for the one, negligence is required for the other. Abbreviations – When in the course of this study guide we refer to your prescribed handbook, that is Snyman's Criminal Law, we shall identify this book merely as Criminal Law. If we refer to the prescribed case reader, we shall indicate this book merely as Reader. In this study guide all references to Criminal Law are to the 6th edition of this book (2014). – With regard to the mode of citation of cases, the following method is applied. In accordance with modern usage, we do not cite the full official name of cases, for example S v Williams en 'n Ander 1970 (2) SA 654 (A), but simply the name, followed by the case reference –Williams 1970 (2) SA 654 (A). This is the modern "streamlined" method. – In the discussions which follow, we shall often refer to the perpetrator or accused simply as X, and to the complainant or victim of the crime as Y. – We often use the Latin words supra and infra. Supra means "above" and infra means "below". Language: equal treatment of genders In our discussions in the guide we try to adhere to the principle of equal treatment of the genders. We do this in the following way: In learning units beginning with equal numbers, the female form is used, while in all learning units beginning with unequal numbers, the male form is used. There are necessarily certain exceptions to the rule. In cases such as the following, we do not change the genders: first, in the descriptions of sets of facts in reported decisions; secondly, where we quote legislation directly; and thirdly in the explanatory notes to existing drawings (which, for practical reasons, unfortunately cannot be changed) depicting males. (xi) PART A Crimes against the state and the administration of justice Contents LEARNING UNIT 1: Crimes against the state 3 LEARNING UNIT 2: Crimes against the administration of justice 14 1 Learning unit 1 Crimes against the state Learningunit1 Contents 1.1 BACKGROUND 4 1.2 TERRORISM 4 1.2.1 Introduction 4 1.2.2 Definition 4 1.2.3 Elements of the crime 6 1.2.4 The object or interest protected 7 1.2.5 The act 7 1.2.6 Unlawfulness 7 1.2.7 Intention 7 1.3 PUBLIC VIOLENCE 9 1.3.1 Definition 9 1.3.2 Elements of the crime 9 1.3.3 The object or interest protected 9 1.3.4 Joint action 9 1.3.5 Examples of conduct 10 1.3.6 Serious proportions 10 1.3.7 Unlawfulness 10 1.3.8 Intent 11 3 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE LEARNING OUTCOMES When you have finished this learning unit, you should be able to: demonstrate your understanding of the requirements for the two crimes against the state by considering the possible criminal liability of an accused for the crimes of terrorism and public violence. 1.1 BACKGROUND The most important common-law crimes against the state are high treason and sedition. There are also various statutory crimes against the state. Since it is impossible to discuss all the offences in detail, our discussion will be limited to a very brief discussion of the crimes of terrorism and a more detailed discussion of the crime of public violence. We have chosen these two offences because they occur fairly regularly in practice. 1.2 TERRORISM 1.2.1 Introduction The most important statutory offence is that of terrorism in terms of the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004, which came into operation in 2005. The Act seeks to prevent acts of terror, to protect the civilian population from acts of terror, and to bring terrorists to justice. It also prohibits South Africa from being used as a haven for terrorism, and obliges the government to cooperate with and support the international community in preventing and combating terrorism. 1.2.2 Definition The Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 provides a broad definition of "terrorist activities". The main "terrorist activities" prohibited in section 1 of the Act are summarised below: (a) Any act committed in or outside the Republic which (i) involves the use of violence by any means or method; (ii) involves the release into the environment of, or distributing or exposing the public to any dangerous or harmful substance or organism; any toxic chemical or microbial or other biological agent or toxin; (iii) endangers the life, or violates the physical integrity of any person or causes seri- ous bodily injury or the death of any person or a number of persons; (iv) causes serious risk to the health or safety of the public or any segment of the public; (v) causes the destruction or substantial damage to any property, natural resource or the environmental heritage whether private or public 4 LEARNING UNIT 1: Crimes against the state (vi) is designed or calculated to cause serious interference with or serious disruption of an essential service, facility or system, including an electronic system; telecommu- nication system; banking or financial service or financial system; an essential infrastructure facility or any essential emergency services, such as police, medical or civil defence services; (vii) causes any major economic loss or extensive destabilisation of an economic sys- tem of a country; or (viii) creates a serious public emergency situation or a general insurrection in the Republic. It is further provided that the harm contemplated in (i) to (vii) above may be suffered in or outside the Republic and that the "activity" referred to in paragraphs (ii) to (viii) can be committed by any means or method. The case of S v Okah ZACC 3 illustrates harm suffered outside the Republic. The accused – a Nigerian citizen but a permanent South African resident – was the leader of the militant group Movement for the Emancipation of the Niger Delta (MEND). He masterminded and bankrolled four car bombings in Nigeria. The bombs killed nine people, injured many others and caused extensive damage to property. Mr Okah was in South Africa when he planned and executed some of the bombings. The Supreme Court of Appeal ruled that, under section 15(2) of the Terrorist Act, there was a close nexus between the terrorist acts committed or the accused and South Africa, and convicted Mr Okah of terrorism. The acts described above must be performed with a defined culpability. The culpability that must accompany any of the abovementioned acts is described as follows: (a) An act which is intended, or by its nature and context, can reasonably be regarded as being intended, directly or indirectly, to (i) threaten the unity and territorial integrity of the Republic; 5 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE (ii) intimidate or cause feelings of insecurity within the public or a segment of the pub- lic with regard to its security, including its economic security, or to cause feelings of terror, fear or panic in a civilian population; or (iii) unduly compel, intimidate, force, coerce, induce or cause a person, a government, the public or a segment of the public or a domestic or an international organisa- tion or intergovernmental organisation to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles. It is irrelevant whether the public or the person, government, body or organisation or institution referred to in (ii) and (iii) is inside or outside the Republic. It is further required that (b) the act be committed, directly or indirectly, in whole or in part, for the purpose of the ad- vancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking. You do not have to memorise the complete definition above. However, you must read it carefully and be able to identify a set of facts in an assignment or in the examination which amount to an act of terrorism. The definition of terrorism is extremely long and complex. Please do not try to memorise it word for word. Know the elements of the offence as set out below, and try to memorise the core words in the definition, specifically for use in an ap- plication when provided with a specific scenario. Remember that not all the different acts are always applicable to a terrorist scenario. Only apply those acts which are applicable to the scenario provided. 1.2.3 Elements of the crime (1) an act (2) unlawfulness (3) a specific intention 6 LEARNING UNIT 1: Crimes against the state 1.2.4 The object or interest protected The interests protected are the safety and security of the Republic, its institutions and people. 1.2.5 The act The conduct prohibited comprises, inter alia, the use of violence; release of toxic or harmful substances; conduct which endangers the life or physical integrity of any person; the causing of serious risk to health and safety of the public; causing damage to property; an act calculated to cause serious interference with services; causing destabilisation of the economy and the creation of a public emergency or insurgency. 1.2.6 Unlawfulness Where an act is performed under compulsion, this may justify its performance. It is also provided in the Act itself that an act which forms part of a protest, dissent or industrial action and which does not intend the harm contemplated in paragraph (a) (i) to (iv) of the definition is excluded from the prohibition. This is in accordance with the right to freedom of speech and the right to strike (ss 10 and 23(2)(c) of the Constitution). 1.2.7 Intention A specific intention is required for the crime and the intention has two components. It is required that the act should be performed with an intention, or an act which by its nature and context, can reasonably be regarded as being intended, directly or indirectly to – FIRST COMPONENT threaten the unity and territorial integrity of the Republic; intimidate or cause feelings of insecurity within the public or a segment of the public with regard to its security, including its economic security, or to cause feelings of terror, fear or panic in a civilian population; or unduly compel, intimidate, force, coerce, induce or cause a person, a government, the public or a segment of the public or a domestic or an international organisation or intergovernmental organisation to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles; and SECOND COMPONENT It is required that the act be committed, directly or indirectly, in whole or in part, for the purpose of the advancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking. Dolus eventualis is a sufficient form of intention. The words “can reasonably be regarded as being intended” seem to import an objective test to determine intention. However, it is submitted that these words only refer to the recognised practice of our courts of drawing an inference of a subjective intention from the perpetrator’s outward conduct at the time of the commission of his act as well as the circumstances surrounding the event, in cases where there is no direct evidence of intention. 7 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE Apart from the offence of terrorism, there are other offences created in the Act of which you must be aware. These are: Offences relating to harbouring and concealment of a person committing acts of terrorism (s 11) Failure to report the presence of persons suspected of intending to commit or having com- mitted an offence (s 12) Offences relating to “hoaxes” (s 13) ACTIVITY X, Y and Z have all been retrenched by the mining company for which they worked. They have been looking for jobs for six months without success. They bear a grudge against the government because they have lost their jobs. They are of the view that the government does not properly enforce immigration laws; that millions of people enter the country illegally and that the citizens of the country are unemployed because these illegal immigrants are employed by the mines as they are prepared to work for very low salaries. X, Y and Z feel that the government ought to be encouraged to deport all illegal immigrants. They decide that this can only be achieved by violent means. They plan an attack on a certain neighbourhood which they know is inhabited by illegal immigrants. In the early hours of the morning, they set alight the homes of these people. Many are injured and some die as a result of the attack. Can X, Y and Z be charged with the crime of terrorism? FEEDBACK Yes, they can be charged with terrorism. It would be fairly easy to prove that they carried out a "terrorist activity". At the very least, they have committed acts involving the use of violence, endangering the lives or physical integrity of other persons, and causing substantial damage to property inside the Republic of South Africa. They performed these acts with the intention of intimidating a segment of the public (illegal immigrants) so that they would leave the country or of compelling the government to adopt a policy of deporting all illegal immigrants (the first component of the requirement of intention). But the state will also have to prove the second component of the intention requirement, namely that these acts were performed with the purpose of the advancement of a political, religious, ideological or philosophical motive, objective, cause or undertaking. One may argue that X, Y, and Z had a collective political motive, namely to force the government to arrest and deport illegal immigrants. Terrorist or freedom fighter? Now that you know the definition of terrorism, how would you differentiate be- tween terrorists and freedom fighters? Both groups have political objectives and commit violent, destructive crimes in the eyes of the governments of the countries they reside in; However, freedom fighters claim to be the liberators of the op- pressed, and many countries only came into existence after long struggles for freedom. Is the difference between the two concepts simply a matter of percep- tion, in other words, do the labels depend on the one doing the labelling? Or is it a difference in motive? Do freedom fighters fight for a noble cause while terrorists’ acts are purely destructive? Wat is your opinion? 8 LEARNING UNIT 1: Crimes against the state 1.3 PUBLIC VIOLENCE (Criminal Law 311–314) 1.3.1 Definition Public violence is the unlawful and intentional performance of an act, or acts, by a number of persons which assumes serious proportions and is intended to disturb the public peace and or- der by violent means, or to infringe the rights of another. 1.3.2 Elements of the crime The elements of the crime are the following: (1) an act (2) performed by a number of persons (3) which assumes serious proportions (4) which is unlawful, and (5) intentional, and, more specifically, includes an intention to disturb the public peace and or- der by violent means, or to infringe the rights of another 1.3.3 The object or interest protected The interest protected in the case of public violence is the public peace and order. A certain measure of overlapping may occur between this interest and the interests protected by the other crimes against the state. A watertight division is not always possible. 1.3.4 Joint action The crime cannot be committed by an individual acting alone. The public peace and order must be disturbed by a number of persons acting in concert. It is impossible to specify the number of persons required; this will depend on the circumstances of the case, taking into account factors such as the seriousness of the threat to peace and order. In Terblanche 1938 EDL 112, five persons were considered sufficient, while, in other cases where the disturbance of peace and order was not serious, for example as a result of the limited scope and duration of the disturbance, six, eight and ten persons were considered insufficient for the commission of the crime (Nxumalo 1960 (2) SA 442 (T)). Those participating in the disturbance of the peace must act in concert, that is, with a common purpose (S v Whitehead 2008 (1) SACR 431 (SCA)). Once it has been established that the accused knowingly participated in an uprising with the aim of threatening the public peace and order, the prosecution need not prove precisely what acts were committed by which of the participants (Mashotonga 1962 (2) SA 321 (SR) 327). However, in S v Le Roux 2010 2 SACR 11 (SCA), the Supreme Court of Appeal emphasised that in the absence of proof of a prior agreement or plan to commit transgressions, the state must prove active association with the acts of public violence of each individual accused. Therefore, proof of mere presence at the scene of the crime is not sufficient. The crime can be committed both in a public place and on private property (Segopotsi 1960 (2) SA 430 (T) 435-437). The participants need not be armed. The act must be accompanied by violence or a threat of violence. The crime is committed even if there is no actual disturbance of the public peace and order, or no actual infringement of the rights of another. It is sufficient if the action is aimed at the disturbance of the peace or the infringement of the rights of another (Segopotsi supra 433 (E)). 9 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE Please remember that the difference between public violence and terrorism is not only that public violence must consist of a joint action, while terrorism can be com- mitted by one or more individuals, but also that terrorism requires a specific intent, which is not a requisite in the crime of public violence. 1.3.5 Examples of conduct The following are examples of behaviour amounting to public violence: faction fights (Xybele 1958 (1) SA 157 (T)) joint resistance to police action by a group of persons (Samaai 1986 (4) SA 860 (C)) rioting (Dingiswayo 1985 (3) SA 175 (Ck)) violent coercion of other workers by a group of strikers (Cele 1958 (1) SA 144 (N)) disrupting and taking over a meeting by a gang (Claassens 1959 (3) SA 292 (T)) 1.3.6 Serious proportions The crime is only committed if (in addition to the other requirements) the action of the group assumes serious proportions. One of the reasons for the existence of the crime is that the safety of persons not involved in the disturbance is threatened, and this will only be the case if the disturbance is serious. Although this requirement may be somewhat vague, it is nonetheless essential to distinguish public violence from cases of, for example, rowdy behaviour and family feuds which do not threaten public peace and order. Whether or not the act can be classified as serious will depend on various factors, or a combination of them, examples of which would be the following: (1) the number of persons involved (2) the time (3) the place (4) the duration of the disturbance (5) the cause of the disturbance (6) the status of the participants (7) whether or not they are armed (8) whether persons or property are injured or damaged (9) the way in which the disturbance is settled (if it is settled) It was decided in Mei 1982 (1) SA 301 (O) that the mere placing of stones in a road at a spot where a group of people assemble does not amount to violence, and therefore does not constitute public violence. The fact that an individual threw a stone at a police vehicle is not sufficient to convict that person of public violence. 1.3.7 Unlawfulness Both the actions of the group of persons or crowd as such and the actions of the individual accused must have been unlawful. The participation of the individual may, for example, be justified on the ground of compulsion (Samuel 1960 (4) SA 702 (SR)), while the behaviour of the group may be justified, for example, by private defence (Mathlala 1951 (1) SA 49 (T) 57-58). 10 LEARNING UNIT 1: Crimes against the state In S v Mlungwana and Others 2019 (1) SACR 429 (CC), the Constitutional Court ruled that no notice is required for a demonstration, making section 12(1)(a) of the Regulation of Gatherings Act of 1993 an unconstitutional limitation of the section 17 right to freedom of assembly in the Constitution. However, demonstrations should be peaceful and unarmed. 1.3.8 Intent Intent is the form of culpability required. The individual accused must have been aware of the nature and purpose of the actions of the group, and her participation in the activities of the group must have been intentional (Aaron 1962 (2) PH H 177 (SR)). Furthermore, a common purpose of disturbing the public peace and order must exist between the members of the group. ACTIVITY A political party holds a meeting in a hall. The leader of the party, Y, opposes abortion, is in favour of the death sentence and has, on numerous occasions, made derogatory remarks about gay people. A large number of gay-rights activists decide to break up his meeting. Almost 150 members of this group are gathered in front of the hall on the evening the meeting is held. As people arrive for the meeting, the activists obstruct the entrance to the hall. Y (the leader of the political party) calls the police on his cellphone. The police arrive with dogs and tear-gas. They request the protesters to disperse peacefully. One woman shouts that the police will have to remove her forcibly. The others all agree with her. Because the crowd refuses to disperse, the police throw tear-gas canisters and the protesters 11 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE run away. The protesters are charged with public violence. Their legal representative argues that the actions of the protesters were not serious enough to justify a conviction for the crime. You are the state prosecutor. What should your response be to this reasoning? FEEDBACK You would rely on the Segopotsi case, arguing that actual disturbance of the peace is not required for a conviction for this crime. All that is required is that the actions of the protesters were intended to disturb the public peace and order. You will argue that there is ample evidence before the court in this respect. You could also argue that, because the entrance to the hall was obstructed by the protesters, and tear-gas was used to disperse the crowd, the actions were serious enough to justify a conviction for public violence. Do public brawls constitute public violence? If a group of individuals visiting a restaurant start assaulting restaurant patrons and damaging restaurant furniture and utensils, will their acts constitute the crime of public violence? What about a group of soccer supporters who run onto the field after their team has lost, and damage television equipment and assault the opposing team’s supporters? To answer this question, you need to consider the definition of public violence. The conduct was clearly unlawful and intentional, and performed by a number of persons. The act also assumed serious proportions as assault is a violent crime, and they did infringe the rights of the other restaurant patrons. However, did they act with a common purpose? If no prearranged plan to, for instance, assault, can be established, is there active association? Here, each particular accused person must be held liable on the ground of active participa- tion in the achievement of a common purpose that developed at the scene. What would your answer be? SUMMARY Terrorism (1) Various types of conduct are prohibited, for example, the use of violence; conduct that en- dangers the life or physical integrity of any person; conduct causing substantial damage to property; major economic loss or destabilisation of an economic system or, even an act that is merely calculated to cause serious interference with essential services or systems. (2) The conduct may be committed inside or outside the Republic. (3) The acts must be unlawful and performed with a defined intention. The state must prove two components of the intention: The intention to: First component threaten the unity and territorial integrity of the Republic; or intimidate or cause feelings of insecurity within the public with regard to its security, includ- ing its economic security; or intimidate or compel a government or the public or an organisation to do or refrain from doing an act; and 12 LEARNING UNIT 1: Crimes against the state Second component the prohibited acts must be committed with the purpose of advancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking. Public violence (4) Definition of public violence – see definition above. (5) The interest protected in public violence is the public peace and order. (6) Public violence can only be committed by a number of people acting in concert; in other words, a number of people acting with a common purpose. (7) The act must be accompanied by violence or threats of violence. (8) The action of the group must assume serious proportions. Whether this is the case will de- pend upon several factors or combination of factors. FURTHER READING For more information on terrorism and public violence, read: (1) Burchell Principles of Criminal Law (2016) 777–782. (2) Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa (2018) 477–479; 662–668. TEST YOURSELF (1) Name four types of activity that amount to "terrorist activities" in terms of section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004. (2) Broadly define the two components of the requirement of intention for the crime of terrorism. (3) Can public violence be committed by a single person? Substantiate your answer. (4) The following statements refer to public violence. Indicate whether these statements are cor- rect or incorrect: (a) Explain what is meant by the requirement for public violence that the acts of the group must assume serious proportions. (b) The participants in public violence must act in concert; in other words, with a common purpose. (c) Public violence can only be committed in a public place. (d) Once it has been established that the accused knowingly participated in a disturbance with the aim of threatening the public peace and order, the prosecution need not prove precisely which acts were committed by which of the participants. (5) Public violence can only be committed if there is an actual disturbance of the public peace and order, or an actual infringement of the rights of another. 13 Learning unit 2 Crimes against the administration of justice Learningunit2 Contents 2.1 PERJURY AT COMMON LAW 15 2.1.1 Definition 15 2.1.2 Elements of the crime 16 2.1.3 False declaration 16 2.1.4 Under oath, or in a form substituted for oath 16 2.1.5 In the course of a legal proceeding 17 2.1.6 Unlawfulness 17 2.1.7 Intent 18 2.2 STATUTORY PERJURY 18 2.2.1 Definition 18 2.2.2 Elements of the crime 18 2.2.3 Content of section 18 2.2.4 Two statements under oath on two different occasions 18 2.2.5 The statements conflict with each other 19 2.2.6 Onus on accused 19 2.3 DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE 19 2.3.1 Definition 19 2.3.2 Elements of the crime 19 2.3.3 Defeating or obstructing the course of justice 19 2.3.4 Examples of conduct 20 2.3.5 Possibility of court case ensuing 20 2.3.6 Intention 20 2.3.7 Attempt to defeat or obstruct the course of justice 21 2.4 CONTEMPT OF COURT 21 2.4.1 Definition 21 14 LEARNING UNIT 2: Crimes against the administration of justice 2.4.2 Elements of the crime 21 2.4.3 Unusual characteristics 21 2.4.4 Reasons for the existence of the crime 22 2.4.5 Acts 22 2.4.6 Unlawfulness 23 2.4.7 Intent 23 2.4.8 Administration of justice by the courts 23 2.4.9 Some examples of the crime 24 2.4.9.1 Contempt in facie curiae 24 2.4.9.2 Contempt ex facie curiae 25 LEARNING OUTCOMES When you have finished this learning unit, you should be able to: demonstrate your understanding of the requirements for certain crimes relating to the administration of justice by considering the possible liability of an ac- cused for the crimes of common law perjury, statutory perjury, defeating or obstructing the course of justice, and contempt of court 2.1 PERJURY AT COMMON LAW (Criminal Law 332–335) 2.1.1 Definition Perjury at common law consists in the unlawful, intentional making of a false declaration under oath (or in a form allowed by law to be substituted for an oath) in the course of a legal proceeding. 15 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE 2.1.2 Elements of the crime The elements of this crime are: (1) the making of a declaration (2) which is false (3) under oath or in a form equivalent to an oath (4) in the course of a legal proceeding (5) in an unlawful and (6) intentional manner 2.1.3 False declaration This requirement comprises the following: (1) The declaration must be objectively false. In English law, only subjective falsity is required. Subjective falsity means that the crime is committed even when someone speaks the truth, while believing that he is telling a lie. Our courts, however, have never yet decided that the crime can be committed in this manner. Section 101 (1) of the Criminal Procedure Act as- sumes that an objectively false declaration is required. (2) The declaration may be oral or in writing (in an affidavit). (3) The falsehood may be made either expressly or impliedly. If it is made impliedly, the prose- cution relies on an innuendo. In Vallabh (1911) 32 NLR 9, for example, it was decided that the words of a witness, "I have already stated what I heard", implied that the witness had heard nothing more. If the prosecution relies on an innuendo, the implication that it relies on must be a necessary implication and it must be based on evidence led at the trial itself and not on extrajudicial declarations. 2.1.4 Under oath, or in a form substituted for oath The declaration must be under oath or in one of the forms allowed to be substituted for an oath, namely an affirmation to tell the truth or a warning by the presiding official to the witness to tell the truth. For the benefit of those students who have not yet passed a course in Criminal Procedure or who are unacquainted with court procedure, we would like to explain the previous statement: There are three ways in which, before commencing his evidence, a witness can undertake to speak the truth: (1) The most common method is taking an oath (i.e. swearing) that he will speak the truth (s 162 of the Criminal Procedure Act). (2) A person may declare that he solemnly confirms that his evidence will be the truth (s 163 of the Criminal Procedure Act). This happens when an intended witness objects to taking the oath (perhaps on religious grounds) or indicates that he does not regard the oath as binding on his conscience. 16 LEARNING UNIT 2: Crimes against the administration of justice For the purposes of criminal law, it is important to remember that a witness who intentionally makes a false statement commits perjury even if his statement is not under oath, but merely made after an affirmation (in terms of s 163) to speak the truth or after being warned (in terms of s 164) to speak the truth. (This rule is specifically set out in s 163(2) and 164(2) of the Act.) Because only a declaration under oath or its equivalent can form the basis of perjury, the crime cannot be committed, for example, during argument to the court by a legal representative. The person who administers the oath or its equivalent (e.g. the magistrate) must have the authority to do so. 2.1.5 In the course of a legal proceeding The crime is only committed if the false declaration is made in the course of a legal proceeding. Extrajudicial, false sworn statements are also punishable, but not as common-law perjury (they can be punishable in terms of s 9 of Act 16 of 1963). (An extrajudicial statement is a statement made outside the court concerning a matter which has nothing to do with the dispute decided in court.) The legal proceeding can be either a criminal or a civil case. False sworn statements made before an administrative tribunal do not constitute the crime; thus it was held that such a declaration at a meeting of creditors in terms of the Insolvency Act cannot amount to perjury (Carse 1967 (2) SA 659 (C)). In Beukman 1950 (4) SA 261 (O), it was decided that perjury can be committed by the making of a declaration outside the court or before a case has begun, provided that such declaration be permissible as evidence at the subsequent trial the maker of the declaration foresees the possibility that it may be used subsequently in a trial According to this test, therefore, perjury can be committed by making a false affidavit for the purposes of a civil motion proceeding (which is mostly in writing), but not by making a declaration in which a false criminal charge is lodged, or by making extrajudicial sworn statements to the police during their investigation into a crime (Beukman supra 265-266). In the Beukman case, it was decided that extrajudicial statements made to a police official are not normally used in the subsequent trial as evidence, and, consequently, they are not declarations made during a legal proceeding. The fact that the false declaration is made during a case, the judgment of which is later set aside on appeal, is no defence. The position is the same if the warrant for the arrest of the accused was invalid. 2.1.6 Unlawfulness The fact that, shortly after making a false statement (e. g. in cross-examination), the witness acknowledges that the statement was false and then tells the truth, is no excuse. Also, the fact that the false declaration was made by X in a vain attempt to raise a defence, is no excuse. This 17 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE happens in our courts daily, but, for practical reasons, not every accused whose evidence is rejected as false is afterwards charged with perjury (Malianga 1962 (3) SA 940 (SR) 943). 2.1.7 Intent X must know, or at least foresee the possibility, that his declaration is false. Mere negligence or carelessness is not sufficient (Mokwena 1984 (4) SA 772 (T) 773). 2.2 STATUTORY PERJURY (Criminal Law 336–338) 2.2.1 Definition Statutory perjury at common law consists in the unlawful, intentional making of two conflicting declarations under two different oaths (or in any form allowed by law to be substituted for an oath). 2.2.2 Elements of the crime The elements of this crime are: (1) the making of two declarations (2) which are conflicting (3) under two different oaths or in any form equivalent to an oath (4) in an unlawful and (5) intentional manner 2.2.3 Content of section This crime is set out in section 319(3) of Criminal Procedure Act 56 of 1955 as follows: If a person has made any statement on oath whether orally or in writing, and he thereafter on another oath makes another statement as aforesaid, which is in conflict with such first-men- tioned statement, he shall be guilty of an offence and may, on a charge alleging that he made the two conflicting statements, and upon proof of those two statements and without proof as to which of the said statements was false, be convicted of such offence and punished with the penalties prescribed by law for the crime of perjury, unless it is proved that when he made each statement he believed it to be true. This statutory offence was specifically created for persons who have escaped convictions of perjury even though they made false declarations under oath. If X made two made conflicting statements under two different oaths, he could only be convicted if the state proved that one of the statements was false, and that X knew that it was false. This is often very difficult to prove. When prosecuting a person for contravention of this subsection, the state only has to prove that: (a) X on two different occasions made two statements under oath, and (b) the statements conflict with each other. 2.2.4 Two statements under oath on two different occasions It is immaterial whether one or both oaths are in writing or oral; neither does it matter whether either was made in the course of a legal proceeding (although at least one of them usually is) (Mahomed 1951 1 SA 439 (T) 441G–H). The crime is also committed if the conflicting statements are made in any form allowed by law to be substituted for an oath, such as an affirmation or declaration to speak the truth. Making conflicting statements under the same oath does not 18 LEARNING UNIT 2: Crimes against the administration of justice constitute the crime. The state must also prove that the oath was administered in accordance with all regulations, and that the person administering the oath had the necessary authority to do so. 2.2.5 The statements conflict with each other The state need not prove which statement is false, only that they conflict (Mahomed supra 442). In Ramdas 1994 (2) SACR 37 (A) 192, the Appellate Division held that the conflict in the two statements must be clear, taking into account the context and surrounding circumstances. The two statements must not be reconcilable, and must be mutually exclusive. If the second statement consists in only a denial that the first statement was made, there are not two conflicting statements. Remember that the difference between perjury and statutory perjury is that for the crime of perjury to be committed, ONE false declaration must be provided under oath in a legal proceeding, while in statutory perjury, the accused made TWO different statements under oath on TWO different occasions, and these statements conflict with one another. 2.2.6 Onus on accused The onus falls upon X to prove on a balance of probability that he believed in the truth of each statement at the time when he made each one. It is submitted that this reverse onus is unconstitutional, since it conflicts with section 35 (3) (h) of the Constitution, which grants X the right to be presumed innocent. 2.3 DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE (Criminal Law 327–331) 2.3.1 Definition The crime of defeating or obstructing the course of justice consists in unlawfully and intentional- ly engaging in conduct which defeats or obstructs the course or administration of justice. 2.3.2 Elements of the crime The elements of this crime are: (1) any act which (2) defeats or obstructs the course of justice (3) in an unlawful and (4) intentional manner 2.3.3 Defeating or obstructing the course of justice This is a very important crime which is often committed in South Africa, and may overlap with many other crimes, such as contempt of court, perjury, fraud or forgery, extortion, obstructing the police in the course of their duties, and being an accessory after the fact to another crime. Although there has been confusion as to the naming of the crime in practice, it is submitted that defeating or obstructing the course of justice represents the most correct designation. There is a difference between the terms "defeating" and "obstructing". “Obstructing” means something less than “defeating”. X can only be found guilty on a charge of defeating the ends of justice if it is proved that justice has in fact been defeated, as for instance, where an innocent person was wrongfully convicted. As it is usually difficult to prove that the course of justice has in fact been defeated, it is common to charge conduct falling within the ambit of this crime as 19 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE defeating or obstructing the course of justice (or attempting to do so). This crime consequently consists of a single offence, and not two distinct alternative offences. 2.3.4 Examples of conduct The following are examples of behaviour amounting to defeating or obstructing the course of justice: unlawfully inducing (or attempting to induce) a witness to give false evidence refusing to give evidence giving false information to the police soliciting a complainant by unlawful means to withdraw a charge soliciting a prosecutor by unlawful means not to prosecute trying to influence the judiciary by pressuring them not consider certain types of evidence tampering with court documents in order to prevent true evidence being placed before court If a motorist warns other motorists of the presence of a speed trap by flashing his lights, he commits an attempt to defeat the course of justice, as decided in Naidoo 1977 2 SA 123 (N). However, in Perera 1978 3 SA 523 (T), a case with identical facts, it was held that X will be guilty only if he has reason to believe that the vehicle approaching him is exceeding the speed limit, or that the driver of this vehicle has the intention of exceeding the speed limit. It is submitted that the latter approach is preferable. 2.3.5 Possibility of court case ensuing The crime may be committed even though there is no pending case, however, there must be the possibility of a real court case ensuing. For example, where X makes a false complaint at a police station, accusing Y of having committed an offence, there is the possibility that Y may be charged with the alleged offence and X has therefore committed the crime. The concept "course or administration of justice" which must be obstructed refers to a process which is destined to end in a court case between parties, or between the state and its subjects. In Bazzard 1992 (1) SACR 303 (NC), the accused phoned the police and declared that he had kidnapped an unknown girl, and that he would kill her if a certain amount of money was not paid as a ransom for her. Because of the call, the police conducted a search, and located the accused who informed them that the report was false; and that no girl was in fact kidnapped. The accused was subsequently charged with defeating or obstructing the course of justice. The court held that X's conduct in making a false report to the police to the effect that he had kidnapped another person was not punishable as obstruction of justice because it amounted to mere wasting of the time of police officers, and therefore did not interfere with the "course or administration of justice". The accused did not attempt to bring another innocent party into trouble, or commit the conduct in order to conceal another already committed crime. He merely wasted the police's time and energy. In this case, no real court case was destined to ensue, as no actual kidnapping had in fact taken place. The facts in Bazzard must be distinguished from a factual situation such as the following: X, who was intoxicated while driving a motor car, collided with a child who was playing in the street. He drove away without having reported the incident to the police. Instead, he went to the police station and reported that his car had been stolen. The police investigated the matter and found out the truth. X can be convicted of the crime of obstruction of justice because the hit-and-run incident could have led to an actual court case (X could be charged with an offence for failing to report the accident). 2.3.6 Intention X must subjectively have foreseen the possibility that his conduct might defeat or obstruct the administration of justice. He must have been aware of the fact that it might interfere with judicial 20 LEARNING UNIT 2: Crimes against the administration of justice proceedings which were to take place in the future, or would at least hamper the investigation of an offence. 2.3.7 Attempt to defeat or obstruct the course of justice If X intentionally gives the police or a witness false information which is, however, immediately disbelieved and not acted upon, he neither defeats nor obstructs the course of justice, but his conduct will constitute an attempt to defeat or obstruct the course of justice. Charges of attempting to defeat or obstruct the course of justice are in fact more common than charges of having committed the completed crime. 2.4 CONTEMPT OF COURT (Criminal Law 315-327) 2.4.1 Definition Contempt of court consists in the unlawful and intentional (1) violation of the dignity, repute or authority of a judicial body or a judicial officer in his judi- cial capacity, or (2) the publication of information or comment concerning a pending judicial proceeding, which has the tendency to influence the outcome of the proceeding or to interfere with the administration of justice in that proceeding 2.4.2 Elements of the crime The elements of this crime are the following: (1) (a) the violation of the dignity, etcetera, of the judicial body or the judicial officer, or (b) the publication of information or commentary concerning a pending judicial pro- ceeding, etcetera (2) in an unlawful and (3) intentional manner 2.4.3 Unusual characteristics The crime manifests the following unusual characteristics: (1) The acts by which the crime is committed can be divided into various groups, some of which have very distinctive requirements (e.g. the requirement that a case must be sub iudice (i.e. the legal process has not yet been completed in the case of the publication of information which is potentially prejudicial to the just trial of a case). The crime can, therefore, be subdi- vided to a certain extent into several "sub-crimes", each of which has certain distinctive requirements. These particular forms of the crime will be dealt with in 2.4.9 below. (2) As a rule, some cases of contempt of court are not even treated as criminal cases, but as civil cases in the civil courts. However, it has been held that these cases can also come before the courts as criminal cases at the same time, if the Director of Public Prosecutions chooses to bring the case before a criminal court. These cases are discussed in 2.4.9.2b below. (3) Some cases of contempt of court are heard according to an unusually drastic procedure. See 2.4.5 (contempt in facie curiae) below. 21 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE 2.4.4 Reasons for the existence of the crime Contempt of court is punished not to protect the dignity of an individual judicial officer only, but to protect the administration of justice. The violation of the dignity and repute of a judicial officer undermines the respect of the public for the court and the administration of justice and, consequently, the whole legal order (Van Niekerk 1972 (3) SA 711 (A) 720). In the case of contempt committed by the publication of information or comments on a pending case, the reason for the crime is that the court should come to a decision only on the grounds of permissible evidence before it, and ought not to be influenced by the disclosure of facts or comments from outside, such as those in the press. 2.4.5 Acts We distinguish between contempt in facie curiae and contempt ex facie curiae. In facie curiae literally means "in the face of the court", and contempt in this form is contempt in the presence of the judicial officer during a session of the court. In cases of contempt in facie curiae, the court has the power to convict the wrongdoer summarily and sentence him. This power is undoubtedly necessary to place the court in a position to maintain its dignity, but our courts have frequently stressed that this drastic procedure must be applied with great caution (Ngcemu 1964 (3) SA 665 (N)). The judicial officer in these cases is complainant, witness and judge all at the same time, the accused is normally undefended, and the trial usually takes place in an emotionally charged atmosphere. Contempt of a lesser nature can best be ignored (Mngomezulu 1972 (2) PH H96 (N)), and a request to a wrongdoer to offer his apologies to the court, followed by such an apology, can often maintain the dignity of the court without the person being sentenced for contempt. 22 LEARNING UNIT 2: Crimes against the administration of justice In Lavhenga 1996 (2) SASV 453 (W), the court held that punishing an accused for contempt of court in facie curiae is not unconstitutional. In so far as the rules relating to this form of the crime infringe upon certain rights of the accused (such as his right to a fair trial and his right to legal representation), such infringement is, according to the court, justified. Contempt ex facie curiae occurs through actions or remarks out of court, and can take a variety of forms, such as: scandalising the court by the publication of allegations which, objectively speaking, are likely to bring judges or magistrates or the administration of justice through the courts generally into contempt, or unjustly to cast suspicion on the administration of justice (S v Mamabolo 2001 (1) SACR 686 (CC)). failure to comply with a court order. 2.4.6 Unlawfulness (1) Statements by members of certain bodies such as the Legislative Assembly, when present in the Assembly, are privileged and cannot amount to contempt (see, for example, ss 58 and 71 of the Constitution of the Republic of South Africa). (2) Of importance is the rule that fair comment on the outcome of a case or on the administra- tion of justice in general does not constitute contempt of court. Public debate on the administration of justice is, in fact, not only permissible but also desirable in a community such as ours to ensure that the law and administration of justice enjoy the respect of the population. The famous words of Lord Atkin in Armbard v A-G of Trinidad (1936) 1 AER 704 (PC) 709 have been quoted with approval by our own courts (e.g. Van Niekerk 1970 (3) SA 655 (T) 657): "Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men." There is, for example, nothing wrong with a newspaper complaining that certain sentences are too light or too heavy, provided that the comments are made bona fide, in reasonable terms and in the interests of the proper administration of justice. (On fair comment as a ground of justification, see Van Niekerk supra 656–657.) 2.4.7 Intent In general, intention is an essential element of the crime (Van Niekerk supra), except in cases where the editor of a newspaper is charged with this crime on the ground of the publication in his newspaper of information concerning a pending case, which tends to influence the outcome of the case. Culpability in the form of negligence will be sufficient to establish contempt of court in such circumstances. See the discussion below of contempt of court in the form of commentary on a pending case (2.4.9.2a). However, remarks in a newspaper article, for example, must be read in context in order to establish the presence of intent. To request a judicial officer, bona fide and in courteous language, to withdraw from the case, for example on account of his personal knowledge of the event, does not constitute contempt. If X's apparently offensive action is attributable to forgetfulness, ignorance, absent-mindedness or negligence, intent is lacking (Nene 1963 (3) SA 58 (N)). 2.4.8 Administration of justice by the courts The language complained of must be directed at a judicial officer in his judicial capacity, or at the administration of justice by the courts. Criticism of the performance of a mere administrative function, like the actions of the police, or criticism of alleged unreasonableness in Acts of parliament, is not contempt of court (Dhlamini 1958 (4) SA 211 (N)). In Nyikala 1931 EDL 175, X said to a magistrate: "Because I am a native, I am always considered guilty". On closer investigation it appeared, however, that his words referred to the methods of the police. He was found not guilty of contempt. Encouraging the public to sign a petition for the reprieve of a person who has 23 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE already been sentenced is not contempt. In Tromp 1966 (1) SA 646 (N) 655–656, the court declared that mere criticism of the prosecution in a criminal case is not contempt of court either. 2.4.9 Some examples of the crime 2.4.9.1 Contempt in facie curiae Examples of such contempt "in the open court" are: shouting at witnesses during cross-examination a legal representative's conducting of a case under the influence of alcohol continual changing of one's seat and talking loudly in court grabbing and tearing a court document to pieces On the other hand, in Nyalanbisa 1993 (1) SACR 172 (Tk), the court held that merely falling asleep in court does not necessarily amount to contempt in facie curiae, since it merely amounts to "a trivial breach of court etiquette". There must be intent to violate the dignity of the court. In Khupelo 1961 (1) PH H92 (E), for example, X loudly sang a religious song while she was leaving the courtroom after the conclusion of her trial. Her conviction for contempt of court was set aside on review, because it appeared that she had behaved in such a way merely out of joy that she had been acquitted, and not to insult the magistrate or the court. 24 LEARNING UNIT 2: Crimes against the administration of justice In S v Meiring 2019 (1) SACR 227 (GJ), the court held that audibly uttering swear words in court does not amount to contempt of court in facie curiae. When his case was postponed for a third time, the accused audibly uttered obscenities, expressing his frustrations. In these circumstances, the court did not find his conduct unseemly behaviour. 2.4.9.2 Contempt ex facie curiae Examples of a few circumstances in which contempt ex facie curiae can be committed are: where someone pretends to be an officer of the court, such as an advocate, attorney or deputy sheriff where someone intentionally obstructs an officer of the court, such as a messenger of the court, in the execution of his duties where someone bribes, or attempts to bribe, a judicial officer, legal representative or witness where a witness who has been summoned deliberately fails to appear at the trial commentary on pending cases scandalising the court failure to comply with a court order (a) Discussion of commentary on pending cases The crime is also committed by publishing information or commentary calculated to influence the outcome of a case that is still sub iudice (the expression means that the matter is still under consideration by the court). Of course, the press is fully entitled to publish the evidence delivered in the course of a trial (or portions thereof). However, the press may not, while the case is still in progress, publish information relating to the merits of a case which did not form part of the evidence in court. A journalist may not, for example, publish information or opinions concerning the case which he heard outside the court during an adjournment of the court for tea. Neither may he give his own opinion regarding the guilt nor otherwise of the accused, or draw his own inferences from the evidence before the case has been concluded. The underlying reason for prohibiting the publication of such information is to avoid so-called "trial by newspaper". The judge, assessors or magistrate should not be influenced by information or commentary emanating from sources outside the court. A case is sub iudice from the moment that it commences (with the issue of a summons or with an arrest) until it has reached its final conclusion in the judicial process, and that includes the last possible appeal. The test for ascertaining whether the publication is calculated to influence the outcome of a case is extremely wide. It does not matter whether or not the publication has ever reached the ears of the court, and, if indeed it has, whether or not the court believes the facts contained in the publication or has allowed itself to be influenced by them. It does not even have to be probable that the words may influence the court (Van Niekerk 1972 (3) SA 711 (A) 724). 25 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE Is contempt of court ex facie curiae still applicable in modern times? The rules pertaining to contempt of court ex facie curiae are being challenged by the rapidly changing media environment. Think, for example, about the highly publicised case of S v Pistorius (CC113/2013) ZAGPPHC 793 (12 September 2014). In Multichoice (Proprietary) Limited and Others v National Prosecuting Author- ity and Another, In Re; S v Pistorius, In Re; Media 24 Limited and Others v Director of Public Prosecutions North Gauteng and Others 2014 (1) SACR 589 (GP), the Pretoria High Court had to decide whether the entire Pistorius criminal trial would be broadcasted. Taking into consideration the constitutional right to freedom of speech as well as sections 34 and 35(3)(c) of the Constitution, which require that legal proceedings (i. e. criminal proceedings) be accountable, transparent and open to the public, it was held that broadcasting must be allowed. In the light of this decision, do you think that commentary on pending cases is still a crime? (i) Liability of a newspaper editor The administration of justice may not be prejudiced or interfered with, or else the crime of contempt of court is committed. A publication will be unlawful if there is a real risk that the prejudice will occur if publication takes place and substantial prejudice may be caused. Mere speculation is insufficient. In Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (2) SACR 493 (SCA), it was held that "the exercise of press freedom has the potential to cause prejudice to the administration of justice in various ways". This prejudice can be caused through the conducting of trials through the media, prejudging issues or the application of pressure on judicial officers or witnesses. It has to be determined whether the risk of prejudice is such that it will interfere with the administration of justice. The court would also have to evaluate and be satisfied that, by limiting the publication of information, the advantage in so doing would outweigh the disadvantage. The "extent of the limitation" imposed on the right and the "purpose, importance and effect of the intrusion" would need to be weighed. For some time, there has been uncertainty in our law whether intention is required for a conviction where an editor of a newspaper has been charged with contempt of court on the ground of having published information in his newspaper concerning a pending case, which tends to influence the outcome of the case. In Harber 1988 (3) SA 396 (A), the Appellate Division removed this uncertainty by holding that it is not necessary to prove intention in these cases, since, in cases such as these, the culpability may consist of either intention or negligence. The editor would be negligent if the reasonable person in his position could foresee that the information which he publishes might deal with a pending case or that it might scandalise the court. The rule that negligence may be a sufficient form of culpability is based on the consideration that, since the press influences public opinion to such an extent, it correspondingly shoulders a heavier responsibility than the ordinary individual to control the correctness of what it publishes. However, the rule that, in these cases, proof of intention is no longer necessary and that proof of negligence is sufficient, applies only if the editor or proprietor of a newspaper or a magazine, or the company which owns it, is charged with the crime. The rule does not apply where an individual reporter is charged in his private capacity. Please remember that for a conviction of contempt of court ex facie curiae of a jour- nalist, proof of intention is required. However, for a newspaper editor, negligence is a sufficient form of culpability. Also note that culpable homicide and this form of contempt of court are the only two exceptions to the rule that intention is the form of culpability required for all common-law crimes. In the case of the two excep- tions, negligence is required. 26 LEARNING UNIT 2: Crimes against the administration of justice ACTIVITY Y, a well-known politician, appears in court on charges of corruption. A reporter at a daily newspaper, X, attends the trial on a daily basis. He reports on the trial, but also undertakes his own investigation by interviewing previous employers of Y. He writes in the newspaper that Y was previously in the employ of a company where he embezzled money. He writes the article in such a way that it looks as if this piece of information was presented as evidence before the court. In actual fact, a previous employer, B, had told him (X) about the embezzlement incident. This piece of information was never put before the court as evidence in the trial. The newspaper editor (Z) and the reporter (X) are both charged with contempt of court, in that they published information that had the tendency to influence the outcome of the trial. The legal representative of the newspaper editor argues that the editor (Z) was unaware of the unlawfulness of the conduct in question; the reporter (X) had misled him by telling him that the State had called B as a witness and that he (B) had testified about the alleged embezzlement incident. Z's legal representative argues that, because Z (the editor) lacked the intention to influence the outcome of the case, he should be acquitted. However, in cross-examination, the editor told the court that the specific reporter (X) had on numerous occasions in the past embarrassed him by not disclosing his true sources. Z (the editor) had to publish many apologies in the newspaper to avoid legal action being taken by aggrieved parties. You are the state prosecutor. Discuss how you would go about proving that both X and Z had the required culpability to be convicted of the offence. FEEDBACK The form of culpability required for contempt of court differs, depending on whether a reporter, a newspaper editor or a proprietor of a newspaper is charged with the crime. Whereas intention is the required form of culpability for the liability of a reporter, mere negligence is a sufficient form of culpability in the case of an editor or proprietor of a newspaper. The reasoning behind this is that the press is such a powerful instrument in influencing public opinion, that the owner of a newspaper or the person in charge of the newspaper, that is, the editor, has a heavier responsibility than the individual reporter for controlling the correctness of what is published. X (the reporter) may be convicted of the offence if you as state prosecutor prove beyond reasonable doubt that he (X) intended to create the impression in this report that the alleged embezzlement was presented as evidence at the trial and that he knew or foresaw that the publication could have tended to influence the outcome of the trial. As regards the liability of the editor of the newspaper (Z), you should have relied on the case of Harber, arguing that the State only has to prove that he was negligent. You should have pointed out that the editor himself had stated in cross- examination that X (the reporter) had previously misled him about his sources of information. In other words, you should have argued that the editor was negligent, because a reasonable editor in his position would have realised that X, being an unreliable reporter, might again have lied about his source of information, that a reasonable editor would have taken steps to control the correctness of X's reporting, and that Z had failed to take such steps. 27 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE (b) Scandalising the court (Criminal Law 322–324) This form of contempt can be committed without there being any pending case. The crime is committed by publication, either in writing or orally, of allegations which, objectively speaking, are likely to bring judges, magistrates or the administration of justice through the courts generally into contempt, or unjustly to cast suspicion on the administration of justice (Mamabolo 2001 (1) SACR 686 (CC)). Whether the administration of justice was in actual fact brought into disrepute is irrelevant. All that is required is that the words or conduct should have the tendency or likelihood to harm. It does not matter whether the attack is directed at a particular judicial officer or at the administration of justice through the courts generally. To constitute contempt, an attack on an individual judge need not necessarily be made in public. It is also committed if the judge is slandered in his judicial capacity in a private communication to him (e.g. a letter), even though no third party is aware of the communication. Examples of this form of the crime are: the imputing of corrupt or dishonest motives or conduct to a judge in the execution of his or her judicial duties the improper arousing of suspicion regarding the integrity of such administration of justice In S v Moila 2005 (2) SACR 517 (T), the accused (X) published press releases and letters to all and sundry over a period of more than a year, in which he levelled accusations of bias, racism, incompetence, intimidation, collusion, lack of integrity and impartiality against judges. He also called for the recusal of the entire Transvaal Provincial Division of that time. The accused raised the defence that the publications were made in exercise of his right to freedom of expression. He was charged with contempt of court ex facie curiae in the form of scandalising the court and was convicted of this offence. The court held that the comments that he had made were not fair and reasonable, were not made bona fide, were not true and were not in the public interest. The accused had acted with malice and deliberately abused his right to freedom of expression to savage the character and integrity of the judges concerned, in their capacities as judges. The court further held that the publications were likely to damage the administration of justice, were unlawful and that X had acted with dolus eventualis, in that he subjectively appreciated that he might cause harm to the administration of justice, but he continued to do so, reckless as to whether or not such harm eventuated. (c) Failure to comply with a court order (Criminal Law 325) A party to a civil case against whom the court has issued an order, and who deliberately fails to obey the court order, commits contempt of court. As a rule, such a party is not criminally prosecuted for contempt, but it is left to his successful opponent, if he so chooses, to apply to the court to sentence the party who fails to carry out the court order for contempt. Such an application is usually only a method of enforcing the court order, because, if the request is successful, the sentence is, as a rule, suspended on condition that the court order is carried out (Knott v Tuck 1968 (2) SA 495 (D)). (These cases are known as "civil contempt".) In practice, this procedure is regularly followed by a person who has been divorced and who wants to force the other party to the divorce to comply with the order of court relating to the payment of maintenance. In Beyers 1968 (3) SA 70 (A), the Appellate Division decided that, in such cases, there is nothing preventing the attorney general himself from charging and prosecuting the party who fails to carry out a court order. The court decided that, in "civil contempt", it is still a crime that is committed, even though the case is heard by a civil court, because, in these cases, a sentence is 28 LEARNING UNIT 2: Crimes against the administration of justice always imposed, and no sentence can be imposed if no crime is committed. Moreover, if the attorney general had not had the power to interfere, it would have meant that the most far- reaching contempt of court would remain unpunished if the successful litigant decided for some reason or other not to request enforcement of the order. In failing to comply with a court order, intent must be present. In S v Samuels 2016 (2) SACR 298 (WCC), the accused admitted that she disobeyed a court order evicting her from an informal dwelling on state land, but stated that she had nowhere else to go. The court concluded that she did not have the necessary intention, deliberately and mala fide, to disobey the court order. GLOSSARY in facie curiae in the court, or in the face of the court ex facie curiae outside the court sub iudice still under consideration by the court SUMMARY General (1) The definitions and elements of common law perjury, statutory perjury, defeating or ob- structing the course of justice, and contempt of court are to be found above or in the relevant portions of the prescribed book. Perjury (2) In common-law perjury, there must be a false declaration. The declaration must be objec- tively false. The declaration may be oral or in writing. (3) In common-law perjury, the declaration must be (a) under oath (b) after an affirmation to tell the truth, or (c) (in the case of children) after a warning to tell the truth (4) In common-law perjury, the declaration must be made in the course of a legal proceeding. (5) There are two differences between common-law perjury and statutory perjury (see Criminal Law 338). Defeating or obstructing the course of justice (6) There is a difference between defeating and obstructing the course of justice. The last-men- tioned is something less than the first-mentioned. (7) The following acts constitute some of the many ways in which the course of justice may be defeated or obstructed: persuading a witness not to give evidence in a trial; misleading the police in order to prevent them from catching a criminal; and laying a false criminal charge against someone. (8) It is not a requirement for this crime that a case must be pending. Note, however, that there must be the possibility of a real court case ensuing, for example, where X makes a false com- plaint to the police to the effect that Y has committed rape, there is the possibility that Y may be charged with rape and X has therefore committed the crime of attempt to obstruct the course of justice. (9) In Bazzard 1992 (1) SACR 303 (NC), the court held that the mere wasting of the time of police officials does not amount to the crime. (10) Charges of attempt to defeat or obstruct the course of justice are more common than charges of actual defeat or obstruction. 29 PART A: CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE Contempt of court (11) One of the unusual characteristics of this crime is that it can be subdivided into several "sub- crimes", each with requirements of its own. (12) We distinguish between contempt in facie curiae (committed in court) and contempt ex facie curiae (committed outside court). (13) One of the many ways in which contempt of court can be committed is by scandalising the court. (14) Remarks amounting to fair comment on the administration of justice or on the outcome of a case are not unlawful and do not constitute contempt of court. (15) Contempt of court in facie curiae takes place when X behaves in such a way in court as to vi- olate the dignity or authority of the judge or magistrate, for example by singing loudly in court. In such a case, the judge or magistrate can summarily convict and punish X. (16) Commentary on pending cases constitutes contempt of court if it is calculated to influence the outcome of a case. (17) As a general rule, culpability in the form of intention is required for a conviction of contempt of court. There is, however, the following exception to this rule: If a newspaper editor is charged with contempt of court in that his newspaper has published commentary or infor- mation relating to a case which is pending, it is not necessary to prove intention on his part; culpability in the form of negligence is sufficient. (18) Scandalising the court is committed by publication, either in writing or orally, of allegations which, objectively speaking, are likely to bring judges, magistrates or the administration of justice through the courts generally into contempt, or unjustly to cast suspicion on the ad- ministration of justice. (19) A party to a civil case against whom the court has issued an order, and who deliberately fails to obey the court order, commits contempt of court. FURTHER READING For more information on crimes against the administration of justice, read: (1) Burchell Principles of Criminal Law (2016) 857–881. (2) Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa (2018) 524–532. TEST YOURSELF (1) Define each of the following offences: common-law perjury; statutory perjury; defeating or obstructing the course of justice and contempt of court. (2) Discuss the following requirements of common-law perjury: (a) the requirement of a false declaration (b) the requirement that the declaration must be unde

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