Criminal Law Lecture Notes - University of Cape Town - 2024 PDF

CRIMINAL LAW PBL3801W University of Cape Town Dr Moshikaro Lecture Notes By Jamie-Lou Ross 2024 FAIR LABELLING AND DESIGNING OFFENCES Following on from structure of last week, second sem is revisiting first sem in greater depth. Notionally know these cases but nee...

CRIMINAL LAW PBL3801W University of Cape Town Dr Moshikaro Lecture Notes By Jamie-Lou Ross 2024 FAIR LABELLING AND DESIGNING OFFENCES Following on from structure of last week, second sem is revisiting first sem in greater depth. Notionally know these cases but need to know more. 2nd sem about depth / understanding. Understanding specific crimes / offences happens by applying principles to specific offence. Principle of fair labelling (Burchell says in his textbook) essentially argues that the wrongfulness of a particular offence must be accurately captured in how the criminal law designs its taxonomy (means how you categorise) of offences. Isn't wrongfulness an element of offence? No – it isnt case that every criminal case is wrongful – some are regulatory offences i.e. don’t pay taxes – not necessarily wrongful in sense of blameworthy – but unworthy in sense of criminalised – mala in se and mala prohibita. Doesn’t mean every regulatory offence unconcerned with wrongfulness – but wrongfulness doesn’t always show up in criminal offences unlike unlawfulness – in regulatory offences usually get defences in statute – ways to ameliorate non-compliance – e.g. SARS has to give you opportunity to restructure your payment – king of statutory defence. Doesn’t mean criminal law is necessarily judging you as having committed something wrongful in sense of blaming you. Don't necessarily hold you blameworthy. BUT with most offences we are blaming you. Criminal law unlike some other areas is deeply interested in your state of mind when you commit certain conduct and the inherent wrongfulness of that certain conduct and these 2 things formulate the concept called blame. In criminal law: Blame meaning refers to both fault & conduct element for which we regard you behaviour to be wrongful. Wrongfulness = blameworthiness in criminal law. Fair labelling = how we understand criminal law to spread labelling across offences E.g. murder – intention & killing necessary – we think intentionally killing is more blameworthy than negligent killing (culpable homicide we think less blameworthy). We are deliberate in not calling you a murderer. This is NB not just for sentencing, fair labelling also argues its a duty the law owes you to accurately blame you – not an accident in criminal law that we have come up with separate word distinct from murder to capture this distinction with culpable homicide – also Scotts law not just SA, Eng, German law etc… – names NB but more NB is the differentiation between the two and this goes beyond sentencing issues as sometimes e.g. certain disqualifications e.g. voting only apply to certain number of crimes – e.g. murders in US can’t vote – law attaches diff consequences to distinctions in criminal offences because of the blameworthiness – takes blameworthiness so serious in crim law that even where clear you committed a crime it is NB what type of crime. Whole point of fair labelling notionally is about how criminal law reflects judgment of blameworthiness and acts as reason to reform criminal justice system when we believe law hasn’t got allocation of blameworthiness right. Example: - Debate about if crime in SA we call rape is just serious form of sexual assault and notionally shouldn’t be sep crime called rape – only sexual assault – notion is all of this is about violations of consent - No diff between rape and sexual assault? - But, other argue rape is distinctly traumatic & wrongful not because of just consent but because of attended risk that comes when someone unlawfully penetrates e.g. STDs pregnancy and range of other violations. - How you frame wrongfulness of these 2 things is an issue of fair labelling - E.g. Canada doesn’t have rape crime – only sexual assault. SA has rape.  - Reason for diff is about fair labelling and how 2 jurisdictions have understood actual blameworthiness of so called crime. Something can be a general principle of criminal law ans yet not be properly anchored in a legal value or principle itself. Fair labelling odd in that most people accept its a principle in criminal law but don’t know how to explain how uts derived or what its protecting ow why they want crim justice reform. E.g. groups can’t explain why they want to change rape to be part of sexual assault. Purpose of 1st 2 readings is to explain how you can go about that. 2 articles = no real clarity provided by courts about how best to understand this even though parliament and courts understand it but no one knows how to explain. K MOSHIKARO ‘THE MORAL AND LEGAL FOUNDATIONS OF FAIR-LABELLING IN OUR CRIMINAL LAW’(2018) Argues its about reputational interest of offender – fair labelling about reflecting blameworthiness = we care about it cuz they have to carry label for rest of their life – murderer until you die. If you believe your mens rea was negligence and not intention and court wrong then you are stuck with that label. Same for label rapist v sexual assault – judgments most people make is that rape is serious etc… and somehow sexual assault is less serious – so because of consequences we have to care about reputation and how mislabelling affects it. A few scholars agree with this. But alternative approach is that although consequences matter, thats not reason why we care – they don’t explain why we are about fair labelling. This is because it is a Q about justice – we care about fair labelling because blaming someone is a Q of justice – about allocating blame. And Qs of allocation are Qs of justice – not about consequences but the duty the law owes you if it is going to punish you. Hence we call it FAIR labelling - trying to explain why it is unfair i.e. an unjust distribution of blame. This matters (you see in article) as if you care about consequences it will change how you understand justification of fair labelling in our legal system. 1st article M demonstrates if you care about reputational interest in fair labelling its hard to make sense of fair labelling coming from a R in the Const or any of our comm law principles of what he calls narrow legality. If you are concerned with rep interests its hard to explain why there is legal duty to get fair labelling right as can’t (notionally argued by M) anchor it in Const so have to find other ground for fair labelling to argue why gov needs to restructure how we understand certain offences. Have to first argue there is first duty on gov to do so – ground it legally, constitutionally or elsewhere e.g comm law So must be careful how you ground fair labelling as if its unpersuasive we have no obligation/duty to change it. Then its aspirational but you want it to be an obligation on the state to accurately reflect this blameworthiness when its punishing someone and forcing them to carry label for the rest of their life. When look at Rs in Const there are about 2 candidates – 1 = arbitrary deprivation – argument = if you convict someone of crime that doesn’t reflect their blameworthiness you are arbitrarily depriving them of their liberty when you sentence them i.g. Murder has longer sentencing thus this is arbitrary deprivation. Problem = arbitrary deprivation is too narrow a R to capture concerns of fair labelling – dont just care how long you go to prison but care what will happen after you leave – if sex offender registered but even in registry rapists have unique obligations as opposed to someong e.g. convicted of sexual assault of vise versa.  Sometimes for purposes of sexual offence convictions kinds of disqualifications that apply after prison may group rapists, child rapists and those committed sexual assault in same category – e.g. never work in education, certain public offices etc.. but no true reflection of distinction of wrongfulness in what you committed. While SA is wrongful, doesn’t always mean you are a child predator – this mean when you can’t live in certain area etc you are being blamed in a manner that doesn’t property reflect conduct you committed and its wrongfulness. Arbitrary deprivation of liberty says nothing about those issues - so if ground fair labelling in this you are limited to context of arrest, detention and imprisonment – before and after this falls out of scope of concern. Second option is R to dignity: naturally if talk about reputation, our law has understood why we care about it is cuz reo is the public face of dignity. To some extent this is true. But argument in article is that dignity doesn’t quite explain all sorts of issues around re in the criminal law – maybe in delict but even there its hard tot ell the story. So CC has understood dignity as being about equal moral status / worth. NB about this understanding isn’t worth part, point is that its about an equal concern with your status. Dignity is all about equality – equal moral with – usually because its about your status as a human and all humans have equal moral with, hence racism wrong etc.. as it affects the dignity of people - Qing status of person as human. But reputation is all about differences and inequality – not about how you are like others but about your distinct conduct and character – if you say rep is badly affected by statement statement will be specifically about you not group of people generally e.g. you had an affair – your specific conduct and this conduct reveals your character. We think some people may have better rep that others. E.g. perjurer has lower character than those who tell truth and same for people who don;t ask for consent. So if you think its grounded in dignity, have to explain what is equality we are concerned with here when it is about inequality in character. Above statement = impossible to understand reo without grasping that its all about inequality – its exactly about the differences in the conduct and character of people – there is no equalising intention. Reputation is a conservative truth – in our law we don’t just protect truth of your rep – many people have positive reps who don’t deserve them but law dares to presume that if you make defamatory statement against them law will assume that is wrongful and you have to justify if its true or not – we place obligation on “truth teller” to prove it. BUT in criminal law we have to really care if this is true or not so for purposes of dignity reputation becomes difficult because it is about the consequences of how other people see your character. Dignity isn’t only about consequences, it is what we call deontic principle – deontic = good for its own sake. Treating people with dignity/respect is something you should do whether or not you will be rewarded – consequences don’t matter. But often we protect rep as we are afraid of consequences when you get it wrong e.g. when you falsely accuse or we think its wrong when people speculate about people they don't know. One about consequences and other about respect. We protect bad people who happen to have good reputations. Reasons for us to think rep can’t be properly grounded in dignity. Last point about distinction = dignity attached to natural persons but companies have reputations – so explain what work reputation is doing? About reps of people at company? But then why does law give diff remedy.  Not quite true that rep of company = rep of people – can’t sue as employee of e.g. UCT if false defamatory statement made about vice chancellor. Kind of argument would be about consequences – how it would impact you – not a higher duty per se. Distinction between natural & legal persons also complicate pic. So what would be plausible grounding for fair labelling? M argues here fair labelling is about allocating blame etc.. but doing so in a non-arbitrary manner – we want coherence between ends that is accurate reflection of wrongfulness and the means which is specific offences – so can’t arbitrarily – or criminal justice system becomes arbitrary – can’t rely if judge found you accurately guilty of e.g. murder if judge just has general discretion and doesn’t have to explain himself. This raises problem about competent verdicts as about verdicts of judge from list of offences – we risk arbitrariness. So we find out fair labelling is grounded in TROL and it can be so grounded even from purely consequentialist view. We don’t have any of tensions that we would need to explain or overcome with dignity or arbitrary deprivation or any other principle. Another point made by M = if you are to recognise a principle of fair labelling you have to also care about if you are dealing with statutory or comm law offences – judges can create crimes BUT judges rarely create crimes – by create crimes he means create new offences but they can do that if they are comm law crimes – this is cuz comm law is judgment law – courts have inherent power with comm law offences – but they rarely exercise this – reason being that usually legislators can be better at criminal justice reform as they can reform an entire area of the law in a statute but us=dge can’t do that in judgment. Legislator can pass criminal law amendment act that addresses host of diff offences – don’t have to be one category of offences per se. For institutional reasons we often see fair labelling being issue legislators more concerned with than judges in criminal justice reform Reason = sep of Ps. M explains SOP etc as SA const law is a bit muddles about SOP – some people think doesn’t exist and others think it is NB – article explains to show its place in criminal law – good reasons judges slow to create new offences. Snyman thinks judges don't have this power at comm law, phelps thinks judges can have this and should etc.., point M making = yes have power but should they use it so carelessly = NO. Institutional concerns of court v legislator. This is first article – approach that if you are someone who cares about consequences of policies and pragmatic – thats one way to care about fair labelling. A CORNFORD, ‘BEYOND FAIR LABELLING: OFFENCE DIFFERENTIATION IN CRIMINAL LAW’ (2022) M & C disagree in their articles. C argues you cant really ground fair labelling in explanations people been giving. Particularly reputation – what he calls stigma – his problem with stigma here is that if you only care about consequences that an offendor has to carry that doesn’t really always have to be negative i.e. these don;t have to be negative consequences. E.g. legislator might think it would be good to increase convictions by doing away with an element of a crime that is hard for prosecutors to prove – e.g. maybe intention too hard to prove in sexual assault so we say negligence is sufficient – if you did do that fr that reason, then ordinarily it means you lower sentence, you remove stigma that would’ve been there but all of that is to the benefit of most offenors at very least it doesn’t harm offenders who would not have been convicted  of rape before but those that would have been now arent and means you increase conviction rates – everyone is happy – but if you care about fair labelling – what does this have to do with F labelling. When you say negligence is only mens rea for all sexual offences and reasons are to increase convictions = about consequences and no negative consequences to offendor – only negative consequences may be to potential victims but here argument may be that if we increase convictions we can better deter people. What does this have to do with accurately reflecting wrongfulness of offence? Argument C is making = if you only care about consequences to an offender and thats why you care about F labelling sometimes that very concern with consequences would mean you can reform the law in a way that does not accurately reflect the wrongfulness or blame of someone but does have positive consequences to the reputational stigma. In e.g. of taking away intention and replacing with negligence for rape – if we think its too hard to prove intention esp in intimate sexual relations – so would be easier to have negligence. But if you think their diff between intentionally violating consent and negligently doing so there would be reason to accurately reflect that if you want to just increase convictions – you would be helping lots of convicts to carry less of stigma So what would reason fair labelling be when everyone wins in this example – offenders don't carry same stigma and prosecutors get more convictions, victims notionally in long wrong benefit, at least to extent that now its easier to convict person, so less people would notionally take that risk (this is the argument). So haver to explain why reputation doesn’t work. C is flipping argument and saying how do you justify any concern with accurately reflecting wrongfulness of criminal offences int hat example when it is a win win for everyone. He believes instead straightforwardly this is just about just allocation of blame. So F labelling can be pursued even when consequences either bad or other alternatives are good, you have to pursue fair labelling precisely because it is a principle of justice. C doesn’t ground this in dignity, very cleverly, because a principle of justice doesn’t have to be a principle of dignity, we can do justice to people whether or not we are concerned with their dignity. Principles of justice don’t have to be dignity justice – other values. C & M still disagree = on TROL stuff - C thinks F labelling is intention with TROL – he argues F labelling has an inflationary logic as to get the allocation of blame right you usually have to create new offences and sub categories of offences. Example: - Start with crime of assault then someone argues its bad when someone uses weapon. - If armed assault was diff offence – have to make distinction between comm assault and grievously bodily harm. - Someone may say SA is diff from common assault. - This needs to be sep crime? - But within SA may say there is sexual harassment, stalking and then non-consensual sexual contact so maybe want to make distinctions between those. - But then say stalking yes, but grooming should also be a sep offence? - So where once would've just had assault, now have separate crimes of grooming, stalking etc.. C argues whether you think thats right or wrong it is part of logic of fair labelling, it will create more and more offences – if so, this could lead to all sorts of confusion about what is exactly the right offence to describe particular conduct if you have multiple subcategories within same category of offences.  So what is right label when someone doesn’t take no for answer, send lots of messages then established friendship and there is power imbalance and slowly wares down consent. Often with teen and adult, do we convict them of statutory sexual assault, stalking grooming or all? If all, have to identify every aspect of individual crime = makes it difficult both for prosecutors and judges and for notional offenders to actually have an idea for how the law will blame them so it becomes arbitrary. C is flipping argument on TROl as tendency of F labelling to create more offences becomes confusing and hence can be in tension with TROL. Where M argued whole point of F labelling is to avoid arbitrariness C argued it entail arbitrariness. C thinks it must still be in legal system but must be balanced with duty to accurately blame people/reflect that blame. Possible responses to this argument One can dispute if F labelling has that inflationary logic – but doesn;t take you anywhere esp given recent history as criminal law has increased its no. of offences – new crimes for various reasons. Diff response = TROL doesn’t demand absolute clarity – clarity is but only 1 element of TROL. It would be a mistake to collapse clarity with arbitrariness – there can be good reasons with either consistency, non-retrospectivity, generality etc. that would mean you don’t need perfect clarity that would counter your impulse to have more specific offences – so for TROL reasons – CC has said in Savoi case this – reasonable clarity no perfect lucidity – one can accept this particular concern about creating more offences but can dispute if its in tension with tROl esp if you understand ROL not to just be obsessed with clarity itself & also fair labelling doesn’t need to be obsessed with clarity as it is legal principle of justice. Reason F labelling even matters is that it assumes on its own terms that your citizens actually can understand the wrongfulness between diff offences so you can’t attempt on F labelings own terms to keep creating more offences when they become confusing esp where you risk not accurately reflecting/communicating that blame. It seems like minor point but matters. If you take M’s position that F labelling grounded in TROL = means cases where prosecutors faced with multiple offences that could be committed then overcharged as issues overlap - can take issue with this prosecutor discretion esp where they don't care if conviction accurately reflects but just wants to get a conviction – try to force you to get plea bargain. Reason you would argue prosecutor must narrow it down would be precisely due to arbitrariness created by this overcharging – overcharging doesn’t help accurately reflect blame it just confuses people – guilty of what? Odd in way C is really concerned with creation of mor offences, he rightly understands it violates TROL but thinks it would also accurately reflect the wrongfulness. It means F labelling would be self defeating. So not doing justice. Again here, we don't need to think that F labelling is in tension with TROL and we can derive it from TROL and carry out logic of TROL in F labelling and it becomes a coherent principle. See how these ideas play out in cases below (Coetzee & Masiya) S V COETZEE NB Read Langas judgment sets out facts and issues. Then prioritise judgments in order of: O’Regan, then the rest. So Langa NB & O’Regan then others. O’Regan clearly defines issues but doesn’t go over facts like Langa.  CC challenge to criminal procedure act (CPA) s 332(5) – Langa disposes of challenge to other section. Section said if you were director or servant of a company servant here means any one in management – not just employee but supervisor – if company would have been convicted of criminal offence and you are director of company it will be presumed that you are also guilty of that offence (like how m described reputation). Here saying guilty of same offence. Example: think steinhoff - criminal conspiracy alleged and you were senior financial officer and one day you find out this was a scam if s 332(5) was still in force burden would be on you to prove you knew nothing about it and if you failed you would be convicted of same offence as CEO etc… and anyone else in on it. Not because of principle of conspiracy but everything to do with fact that you were director or servant of company. Court was faced with C’ality of section and how to understand it. Argument was that it violated principle of presumption against innocence inter alia. But, in this judgment and later ones, court has states O’Regan touched on heart of issue of this – it convicted you of something without requiring any proof of fault. Instead you are convicted in your capacity of director – so just because you work there that is basis why you could be convicted. For O’Regan this absence of a fault requirement meant you could punish someone in a manner that doesn’t actually reflect the wrongfulness of their actions. Law was failing to accurately reflect wrongfulness of offence and we were blaming people for job they got without any further evidence, remembering ordinarily if prosecutor comes to you saying if you accused etc.. you response = what is your evidence. Prosecutor would say cuz you work there. Prosecutor would say unless you can prove innocence/din’t know i.e. hand over emails etc… Reason they introduced this offence is because it increases convictions in commercial crimes and second it is a tool for investigation because if 1 director has to prove they knew nothing they have to disclose evidence to that effect which can then help you convict the actual guilty party. But to do that you are threatening someone with imprisonment without any evidence as a basis for that. So legislator introduced offence for public policy reasons that are understandable but for O’Regan, fact that you are ignoring fault of party is reason enough to see this as C’ality suspicious and O regan then anchors it in arbitrary deprivation - C’al R here is arbitrary deprivation. Ask yourself if she is then contradicting Moshikaro’s argument? O’Regan saying the R is implicated but not that it exhausts the principle of fault being necessary for conviction. This is part of prob – when you don't ground principles in right cause it can lead to all sorts of confusion, but when look to Coetzee we see out courts requiring some type of fair labelling as concerned with wrong done to offender here and saying we owe a duty to convict people properly when they are at fault so you need to include a mens reas requirement because this defence did not include a mens rea requirement. – it in your capacity as director and failure to prove – what if laptop crashes? Usually police would have to prove you did that intentionally. Of if in meetings but didn;t understand – prosecutor doesn’t have to prove you were there but just prove that you were employed. Thrust of Coetzee esp by O’Regan = s 332(5) convicts you in capacity as D or employee and failure to prove innocence but what it doesn’t do is have blame requirement or specifically fault requirement. Absence of mens rea here is the problem. Don't have to show this person is negligent but hat they were just employed. Notes In Coetzee we see clear acknowledgement that allocation of blameworthiness is a principle of justice – see Andrew C argument articulated by O’Regan but only diff = O’Regan says it also affects R to not be arbitrarily deprived of liberty.  But doesn’t mean this exhausts the scope of fair labelling. Basic point = principle of SA law that there is principle of obligation that this conviction requires fault. Other arguments about presumption of innocence etc. flow from this particular concern with blame. What is wrong about convicting innocent people? Because there aren’t to blame – reason we care about presumption of innocence. There are further institutional reasons we have presumption of innocence is liberty etc. but core is initial reason and concern with blaming. MASIYA V DPP Masiya was about how we define the crime of rape – what are necessary elements of crime. Culmination of our entire this discussion in this case. Can use Masiya to understand the issues above at stake. Allegation in this case at core is about arbitrariness in penetration form you need. Is it vaginal penetration only that = rape; or of just female? Or could rape be understood to include the penetration fo a male or anal penetration of a female person or even forced oral penetration. Court didn’t realise it but it was faced with all these labelling issues and had to explain where it draws the line. When it comes to arbitrariness court first asks Q of vaginal v anal penetration. Q of male v female person – court seems to think it is public policy issue and not legal arb itrariness let alone the oral aspect of it. Court trying to draw line between which kind of arbitrariness we ought to be concerned with – which type is justiciable in sense that court is competent enough to actually correct. If you understood fair labelling as being about allocation of blame and in a non arbitrary manner you may think court has broad discretion to deal with all of these issues. But here court places huge emphasis on SOP and seems to think SOP considerations end with extending to males – here thinks its going to far. Court thinks thats best left to legislator but they will address argument of vaginal v anal penetration. Was court arbitrary itself? Or plausible explanation why court lands on this kind of SOP distinction = is far more because if you included males you couldn’t then not address the Q of oral penetration or not and court was working with an assumption of wrongfulness of rape mainly being a crime against women or female. Although court can’t state this, you see court views raoe as primarily affecting women (true statistically) but debate if you include in prisons – but mostly it does affect women. So court though this is less interventionary response precisely because if we were engaging in extension to males etc. court would have to design subcategories and new elements of rape itself. Thus was more issue of courts own competence than issue about principle of the thing. They acred somewhat about fair labelling in kind of arbitrariness, but SOP considerations they thought were sufficient as they couldn't engage in reform like the sexual offences act (all these things criminalised now in Act). Quite rightly you can take issue with this as not immediately clear as you also had to address oral penetration spect – but would we think it over steps courts role in doing so if we though ti was principle of justice if expressed f labelling. If court understood f labelling at time it is likely it doesnt throw up SOP issues that court imagine – could extend liability in clear way and understandable to extend rape to also men – they keep penetration element. Real SOP issue was about the penetration aspect itself. But penetration of what arguably doesn’t quite extend the competence of the court beyond its actual scope esp where can see rape affects people who arent female.  But would be very diff Q – would have to have arguments about penetration wrongfulness itself - if wanted to rid of that lament. We see court apply nascent principle of fair labelling but not understanding that if you do it in one case it is plausible you can do it in another – esp if you think the wrongfulness of rape is not serious enough. Conduct remained same throughout, esp when extended to anal. So see that actually court struggling at core with making sense of fair labelling but because it doesn't have a name – but what it is doing is labelling & reforming law in light of a fair labelling consideration. Masiya is a good example of how things go wrong as don't have theory of the case – cant explain yourself – in this case you normally default to more conservative position. If all of these principles & arguments seem confusing = think of them through lens of Masiya – it was about fair labelling and SOP. If critic of Masiya you'd say thats what happens when you dont understand fair labelling. If you support m must explain why anal penetration is distinct from oral. Point = exercise you're involved in is the allocation of blame and this is the exercise that a court can’t escape. If we theorised explanation of fair labelling we may have gotten Masiya ‘right’. Masiya demonstrates principle of fair labelling in action, why it matters, and how a court is confronted with these problems. LEGALITY & PUNISHMENT IN SA CRIMINAL LAW REVISITED: HOW TROL NOT ONLY CONSTRAINS PUNISHMENT BUT IS NECESSARY TO JUSTIFY IT General overview of the rule of law in criminal law In criminal punishment, in lots of research and in courts etc, focus is on just punishment & what is the appropriate sentence that would match the crime. Justice of your punishment = deserve theory of punishment. Deserve? Blameworthiness Our courts are concerned with ensuring that your punishment is deserved in a manner in compliance with TROL. We passed minimum sentencing legislation & rationale for this = if you had min sentencing guidelines for judges, you can roughly ensure that there is just punishment, because you define certain crimes as serious enough and therefore blameworthy enough to merit a minimum sentence. Another benefit of the minimum sentencing legislation is to introduce some uniformity in punishment. It will at least ensure judges don’t abuse their discretion. Especially in cases where there might be some kind of built in bias. This claim to uniformity illustrates a kind of attempt by the state to apparently comply with TROL values because the uniformity would ensure non-arbitrariness in sentencing. What is unique about our regime is that judges can depart from the sentence itself if there are substantial and compelling circumstances – so some limited discretion retained, but judge has to provide reasons why they are departing from that min sentence. We are using the example of minimum sentences to address the theme of todays lectures: How do you reconcile just punishment with TROL or legality? Min sentencing regime is legislators attempt to do that.  But point today = this isn’t just a problem for legislature with min sentences, but also a prob for judges when they interpret particularly fair trial rights. The 3 cases this week, focused on fair trial Rs, demonstrate this point. What you see is an attempt by courts when they interpret the principles of criminal law to also reconcile TROL & just punishment. There are 2 different ways to do this: 1) Through strict general rules. And you are assuming a court will follow a 2 stage process when doing so: - First, decide if crime qualifies for min sentence. - Second, decide whether there are substantial & compelling circumstances. - This 2 stage approach clearly articulates prior rules so courts ought to be able to easily apply them. 2) Context sensitive approach. - Now what's tricky is that the legislator has adopted one route, but it isn't the case that judges are precluded by their inherent powers to adopt the second approach. - But judges have to justify why, for instance, they wouldn't be following the legislator's general framework or approach. EDWIN CAMERON The argument generally provided for why judges still have this inherent power is an argument sort of made by justice Cameron in the first piece, which is basically in 2 parts. The first is that judges ought to be held fully morally responsible for their decisions. So justice Cameron doesn't think it's a good enough reason for a judge to say, I was just applying the law. When it comes to these issues of sentencing and punishment. So the judge is fully morally responsible. Because the very exercise of punishment is a moral decision. That's the point. Secondly, argument goes there's a special relationship between the rule of law and just punishment. And I'll explain how this relationship works. The argument goes something like this: Justice by its very nature requires applying general and abstract principles. People disagree about morality. Part of that disagreement is precisely because of how general the requirements of moral reasoning are. Law, therefore, allows us to concretize these general principles and make them more specific. So for instance, the general injunction to punish people justly as a moral principle can be made more concrete By, for instance, fair trial, rights, and minimum sentences. Vice versa, law can generally sometimes be so specific and so detailed that it leads to injustice, mainly if it's applied rigidly. So it is justice that prevents law from becoming overly technical and in many ways, ironically difficult to follow. Therefore, there is what we might call a a mutually supportive relationship between justice and the rule of law or just punishment and the rule of law. When I speak about justice in this context, I'm talking about just punishment. So the argument goes, judges have no choice but to reconcile the rule of law and justice when they're punishing. So they can’t simply follow the kind of staged approach that the legislator might desire. If you ask justice Cameron why he thinks this argument is correct, to your great surprise, he'll give you an answer which maybe you're familiar with. Minimum sentencing legislation is just awaiting interpretation.  And it is for judges to give meaning to the law through interpretation. In case you were worried that this was just simply an abstract proposition in the legal philosophy class, Cameron attempts to demonstrate this, I think, in the 3 cases I have discussed. More to the point, that's the underlying assumption of his article against minimum sentences. Firstly, he thinks that they're confusing and must be abolished, as it will be easier to just repeat them. But even if they stay on statute books, it will be clear that Cameron does not think that you should follow a staged approach to how you sentence people. Instead, everything is substantial in compelling circumstances, really. And you should always assume as a judge that you likely should be deviating from a minimum sentence in one form or another, precisely because the facts of the case would be unique. That doesn't mean he thinks you ignore them, to be clear. But he does think that there is this inherent power of judges when they interpret the law to always adjust the statutory framework to the facts. So for him, minimum sentences are at worst pernicious, but in their most benign or positive form are useless or superfil. Because everything can be a satisfaction in that in certain stocks. So what you see is a consistency with this approach. Now in the cases as we're discussing them, I'm going to contrast this approach with what the other judges might adopt in the CC. So I think it would be useful for you to see the important difference in understanding and of how it makes a difference to what the judge eventually decides in the case. S V LEGOA 2002 (SCA) Facts L as an enterprising businessman, decided that he was going to trade & traffic marijuana. Now very importantly, this is before the second Prince judgment where you could use marijuana in your own home etc. But he was charged with possession and trafficking. Now interestingly in SA, there seems to be an oddity. You know the oddity about the fact that possession is still a crime, but using it isn't. And we're not sure how possession will be construed by the courts. Is it with the intention to sell, or is it just having the thing on your person? Nonetheless, L had 263 kgs of marijuana in his car. So the police had at least reasonable suspicion to think that wasn't all for just his use. However, when he was charged, in the charge sheets, the prosecutor charged him under a specific schedule of the drug trafficking act that didn't have a minimum sentence. But later in court, prosecutor argued that L ought to have minimum sentencing applied to him. Because, if you are found in possession of a certain quantity of drugs, it attracts a minimum sentence. More specifically, the quantity that is criminalised is determined by the value of the drugs, not the actual size. So if you have a bag of cocaine that's of the same street value as the 260 kilograms of marijuana. So it's about the value, the street value, if you like, of the drugs that attracts the minimum sentence. So when L was indeed charged with this crime, what the prosecutor did not disclose was that the value of the drugs would trigger the minimum sentence and that the prosecutor intended to prove the value of those drugs in order to do so.  So mister L thought, according to his charge sheet, there wouldn't be a minimum sentence, and he didn't think during the trial to dispute the value of the drugs. Because that wouldn't be an important detail. Because in his mind, drugs are drugs. The judge will make up their mind. HC found it was perfectly appropriate for L not to have minimum sentencing possibility raised in the course of his trial. He only discovers this at the sentencing stage. So throughout the entire trial, L doesn't know. But then to his great shock, at the sentence at this stage, it's brought up. And when he, of course, objects, the judge has to say, but at trial, it was proven. So there's no opportunity for you to contest those facts. All you can do is just argue about the facts that have been proven, and try to argue that there were substantial and compelling circumstances. Issue It comes on appeal, and L argues that it is somehow a violation of his fair trial rights. He frames it as a fair trial issue. And he thinks that the constitution, protects him from ‘prosecutorial abuse’. Outcome Now this is an uphill battle for L because if you need to carry anything with you about how the criminal justice system works, is that the most sacrosanct thing in the criminal justice system is prosecutorial discretion, it is in fact not your fair trial Rs. Instead, the criminal law grants prosecutors wide discretion to determine what you are charged with, how many charges they wanna bring, and to petition the court for any appropriate sentence. Courts are very slow to interfere with prosecutorial discretion. In fact, it would be easier for a court to overturn a decision of the president than to overturn a prosecutor's decision in the case. So it's easy to see or to understand why L was so unsuccessful in the HC. Because what he was actually doing or attempting to do was overturn prosecutorial discretion on the basis of some unenumerated fair trial right, not specifically stated in the constitution, but that would have to be inferred from the constitution. This is section 35(3). When you read section 35, you'll see nothing about a charge sheet must reflect a minimum sentence, etc. So it comes before the SCA & L bases his case on fair trial in section 35. Unfortunately, his lawyer has a hard time even in the SCA in trying to explain why prosecutorial discretion should be trumped by an implicit fair trial act in the constitution, either to unknown or undiscovered. But fortunately for L, Justice Cameron happened to be sitting on that bench at the time, and he believed the fair trial rights are only reflecting a deeper principle. So section 35 is only codifying what is a deeper principle of law that's more foundational to criminal justice. And specifically, he argues that although prosecutors have this wide discretion, their discretion comes from law and ought to be regulated by law. Therefore, even the decision to charge someone and the form of the charge sheet must comply with the rule of law. So for justice Cameron, the fair trial rights are only an indicator of what the case is actually about. And what the case is actually about is ensuring that prosecutorial discretion is rule of law compliant. And the right that L is actually arguing for is a right grounded in the rule of law, which need not directly be grounded in the constitution, or rather not directly grounded in BORs. So you don't need the section 35 broadly per se, but section 35 is apparently codifying exactly the same point. So what's important here is section 35 is apparently mutually supportive of the basic principle of the rule. So the 2 are complementary, but you don't need to base your argument entirely in section 35.  So what then is this apparent right, for the rule of law compliance of the prosecutor? Because it's an obvious principle of the rule of law that a legal subject subject must have the law accurately communicated to him such that he can avoid punishment So the rule of law requires that the law must be accurately communicated to an accused such that you may be able to avoid punishment. You might ask yourself, what does that have to do with the rule of law? It is because the argument is the point of the rule of law is to allow citizens to plan their lives. And you should be able to plan for whether you're gonna risk going to jail or not. Or plan your life such that you choose whether to avoid imprisonment or not. Therefore, the prosecutor failing to disclose in the charge sheet that minimum sentences apply, and that this turns on the value of the drugs in question, violated the rule of law. So the failure to make L aware of the minimum sentence and that that minimum sentence turns on the value of the drugs was an infringement of TROL. Therefore, there is an obligation on the prosecutor To disclose that information. Importantly, Cameron then also says, however, he is not laying down a hard and fast rule because he wouldn't want to place an undue burden on prosecutors to have detailed charge sheets. Instead, the prosecutor must just adequately create this. Adequacy will depend on the facts and circumstances. So for instance, if If you were charged with racketeering and corruption under POCA, that is the prevention of organised crime act. Your charge sheet will require more detailed explanation of how you are, for instance, part of a pattern of racketeering. A pattern of corruption since it's organised crime. So by its nature, that charge sheet will be more detailed. However, if you're charged with robbery, the key disclosures would be theft and your use of violence. But if you were going to be charged with robbery, but then sentenced potentially for robbery with aggravating aggravating circumstances, the prosecutor would have to disclose what qualifies as an aggravating circumstance in that case. Examples of aggravating circumstances would be the use of a weapon, for instance. So prosecutors can't simply charge you with robbery, but not alert you to the fact that you might be sentenced to robbery with aggravating circumstances. Very importantly, robbery with aggravating circumstances is not a separate offense. Aggravating circumstances are just issues of sentencing. So justice Cameron does not think that a prosecutor must instead detail every aspect of that robbery. Only the aggravated circumstances, the violence & theft. So it's about substantive compliance and not just a checkbox. So what you see there is Cameron reconciling rule of law values with just punishment. Because the result of this was that L was not sentenced according to a minimum sentence. Instead, he was sentenced according to the provisions in his charge sheet. So a prosecutor doesn't get to change their minds after the fact for aggravated circumstances as well or particularly because it happens that the street value is x or y. Notes Do not think that this case argues that it is a violation of your fair trial rights if the prosecutor doesn't disclose all material information, it's instead a violation of rule of law that may, of course, be reflected in section 35 as well.  But if you are ever faced with a client who you have to defend and maybe you think this principle applies, the good thing is you don't have to identify rights in the bill of rights to do it. S V TANDWA 2008 (SCA) Facts Case about police brutality and its implications for the gathering of evidence. T was allegedly part of a group of people who conducted an armed robbery. The police in the course of the investigation identify T, detain him and question him. He allegedly decides to cooperate with the police. But does so upon the forceful encouragement of the officers concerned. Allegedly, he was assaulted and beaten, arguably tortured. And in a pointing out (when you point out behind a glass screen who your assailants were or accomplices are) he identifies after the police's administrations his accomplices. And from that, they gather the gun used in the robbery. It leads them to further evidence. The other accused and T, when they are faced with minimum sentences, want all of that evidence thrown out because they argue it's inadmissible evidence. So why is this evidence inadmissible? Because they argued this was fruit of the poisoned tree. So if an impermissible means of gathering the evidence was used, all related evidence must also be thrown out. This is basically the codification of an old common law rule best summarised by the adage that the law is like the wife of Caesar and the wife of Caesar must be beyond repute. This applies to the laws of evidence because the argument is if the perception is even created that the criminal justice system would use unlawful means to gather evidence, and all evidence gathered ought to be thrown out to maintain the good name of the administration of justice. Argument that it's apparently codified in section 35. Not precisely, but the argument anyway was that it has not been overruled by section 35, and in fact, has been embraced by the fair trial rights. Outcome Cameron once again argues that if the accused are to be justly punished, this must be a form of legal punishment. The unlawful means of torture and assault against T would mean that all evidence must be discarded that was gathered through those means. Precisely because to decide otherwise would be to bring the administration of justice into disrepute. In fact, he accuses the police of using tactics that are reminiscent of the apartheid era. And justice Cameron, in fact, explicitly makes clear that even if the accused are in fact guilty you cannot have punishment without legality. Because it would mean the methods police use to gather evidence are arbitrary. How do you decide who to beat up and when? To what degree, and what amount of the power force is used or necessary. So once again, you see the necessary link emphasised by Cameron between just punishment on one hand and the rule of law. Very importantly, if he had decided otherwise, we could have said quite recently, that if the facts are just so overwhelming, we ought to still punish the accused anyway. But, of course, to do so would legitimise the use of that violence.  So the argument is you punish the police for noncompliance rule of law by throwing out all of that evidence. Notes There's some debate about whether this is in fact a correct interpretation of invisible evidence. Some people argue that not all evidence ought to be excluded. That maybe it's a matter of degree, but certainly for the court, for Cameron, it isn't. S V PHAKANE 2018 (CC) Facts Allegedly P was accused of murdering his girlfriend. This is after apparently heated argument. P was also known, at least, to have committed acts of domestic violence. He was convicted in the magistrate's court of murder. But he then decided to appeal his conviction. In the period between his conviction and his appeal, critical evidence against him was lost by the police. Specifically, a key witness testimony was lost and so a court on appeal couldn't actually decide the appeal itself because they couldn't reconstruct the record. So there was no way for an appeal court to know if P was correctly convicted. Initially, the HC which heard the appeal said, yes, we can't reconstruct it, but that means the conviction stands. P appeals then all the way to the CC. In CC he argues that his right of appeal has been infringed because of police negligence. And so the correct result is that he should be acquitted if the court can't hear the witness instead of the conviction standing. Majority (Zondo) So justice Zondo, writes the majority opinion and very straightforwardly argues, if you cannot replicate a record, and there is no right to appeal, this means that there's a risk that the sentence or punishment could be arbitrary. So appeal is necessary and essential to ensuring non arbitrariness in punishments. And so it follows that P ought to be acquitted. And so justice Zondo, with the majority of the court acquits mister P of murder. Minority (Cameron) Dissent by Cameron argues that although the record indeed can't be replicated, a court still has the inherent power to impose a impose a competent verdict on the basis of the facts that are still before the court. So there was still enough of the record to convict P of assault. Zondo rejects this argument because in justice Zondo's mind, the facts have to disclose a connection between the assault and the conviction of murder. Why? Because this is on appeal. It isn't the trial stage. And the appeal is against the conviction of murder. So you have to relate those facts to the murder in some way. Cameron's response to this argument is that there is a sufficient connection, on the basis mainly because during the assault, there had been threats against the victim's life that was uncontested. And the bruising would be reasonably connected from assault to murder. So there's circumstantial evidence to ground this connection that Cameron at least sees. Cameron believes this is necessary, this competent verdict. This is in order to prevent arbitrariness, at least against the victim, and specifically her family. And that there must be some measure of justice still done because P had failed to contest any details that was still in the factual record in his appeal.  He instead appealed ironically on the basis of a lack of a right to appeal. So it was in fact a kind of review. And so Cameron thought, it's clear that the facts that are still in evidence stand up. He would have still imposed a competent verdict and in fact, he even argues that P could not be sent to prison for a longer sentence on the basis of an assault, because he'd already served a portion of the sentence, and it would cover any possible sentence for assault. However, it was important to still declare the accused's guilt and reflect that in a criminal record, precisely because we cannot just have law without some small measure of justice. Notes So you see, in this particular example more than any other, actually, going in the opposite direction, that it isn't the case, at least, in terms of Cameron, that you must necessarily sacrifice justice for the rule of of law, or the opposite, that you sacrifice the rule of law for justice. To make the point even more clear, returning back to minimum sentences. You'll see in Cameron's article the basic arguments there are that the rule of law requires at least that the aims of the minimum sentencing regime cannot be self defeating – meaning compliance with minimum sentences can’t lead to more arbitrariness or it is self defeating. And furthermore, minimum sentences are not the measure of justice. Basically, justice isn't a formula. Instead, you have to reconcile rule of law with justice explicitly. In justice Zondo’s defence, there is no explicit duty on a judge when faced with a case like Phakane to necessarily impose a competent verdict. This is a discretion of the judge. But Zondo would argue that he is precluded from exercising this discretion precisely because of the loss of the record. So for Zondo, the only answer to the arbitrariness created by the loss of a record because of this negligence is acquittal. You go on the side of the liberty of the accused. It's a basic principle of interpretation in criminal law. So the argument = in the same way that a conviction has to be deserved, an acquittal has to be deserved. You actually have to have a trial where it is demonstrated that the state cannot prove its case. Whereas in this case, you had an instance where the state could have proved its case. So for Zondo, the exercise of judicial discretion in criminal sentencing is exactly what the legislator would want. The absence of a record means the absence of a conviction. And as Zondo has argued before, the imposition of minimum sentence does not admit of a wide discretion. So it's directly the opposite position of Cameron. And importantly here, we're talking about the connection between the rule of law and just punishment. And certainly, for judges like Zondo, this requires judicial deference of legislative schemes that do so. This requires a policy. Whereas for judges like Cameron, on the other hand, because of the inherent powers of the court, there's no need for excessive deference. Instead, the inherent powers of the court require, on the basis of the rule of law and just punishment, a wide judicial discretion. So judges like Zondo = ought to be deference to how the legislator sets up their scheme of punishments, let alone how the legislator sets up court process. Whereas for Cameron, it's an inherent power of the court to determine just punishment. So there's no need for that deference, especially on cases of sentencing or even a case like Phakane. S V THEMBANI Good demonstration of exactly the point been making.  Case that's not in the course outline, but that you have done. To demonstrate this to you and go through the logic of the case. Demonstration that the apparently mutually supportive relationship with the rule of law and just punishment isn't just a fair trial issue. This case has a substantive criminal law issue of causation. Facts There was a serious injury to the victim – a stabbing. Nonetheless, the victim suffered a mortal grievous wound & was rushed to the hospital. Unfortunately, a public hospital. (We see soon why that's relevant). But due to negligence at the hospital, the victim then dies. It is, in fact, not contested by either party that had the victim been properly treated, they would have survived. So if there hadn't been negligence, the victim would have survived (But for test). That then means court has to decide whether fact that negligence interrupted causal chain of events leads to the acquittal of the accused, basically similar to Phakane. So some outside factor leads to acquittal. There is also no dispute that T was the one who stabbed the victim and caused the injury initially. So the court, once again, has to decide whether basically legality requires acquittal. So just like Phakane, there's a certain interpretation of legality that would lead to that – which was something like the rules of causation were met. I.e. There was a novus actus interveniens, which is the negligence. So T ought to be acquitted? Outcome Cameron sits on the bench in the majorit and he says, whilst, of course, our ordinary rules of factual causation, is one thing, the test for legal causation is quite another. He says this isn't really a case that turns on factual causation. It's instead the case that turns on legal causation. Because the novus actus is a doctrine that shows or determines remoteness. If there's a novus actus, then the cause of the harm is too remote. And so there wouldn't be a sufficient link between the accused and the actual crime. However, remoteness isn't just a question of fact, it's a question of judgment. And specifically moral judgment. And requires that we look at the public policy considerations of finding that there was an intervening event or novus actus. Cameron says it would be perverse to acquit the accused of conduct that he engaged in that increased the risk of harm and only on the basis of an underfunded or under resourced public health sector, he happens to luckily go to a state hospital where there is negligence. In fact, it would be arbitrary to allow negligence from state hospitals to be the reason for his acquittal given that he engaged in the conduct that created the risk. And so he should be held responsible for the risks he creates should those risks materialise. Therefore, there was no remoteness. Cameron also stresses that decisions around causation can't be determined by a hard and fast rule,aAnd in fact, it must always be contextual. So he's not laying down a principle that absolves state hospitals of all negligence, but certainly on the facts of this case,, overworked and under resourced hospitals, when acting in good faith, shouldn't be found to be an interrupting or intervening event.  So once again you see in Cameron, legality on one hand must be reconciled with just punishment on the other, and where maybe one judge would have decided ‘no, this is a question only of factual causation, that's it, the legal causation stuff we're just going to apply the novus actus doctrine, and that's that’. So it's not controversial. – And yes, sometimes bad things happen and bad people benefit. And that would have been one possible interpretation of our rules of causation. However, on the other hand, if you reconcile legality and just punishment, where none of the facts are in dispute, that's really critical. In such a case, reconciling punishment in legality would require the approach Cameron argues for on the basis of the creation of risk of harm. Basically, it's just that the harm finally materialised but you were the ultimate cause of that risk. And on that basis, it's not remote. When no facts are in dispute, then if you create the risk of harm, you are responsible for that harm if it materialises. Although it's a very dense case, it's actually quite simple if it's explained like this.. Notes Point of all of this discussion above = to demonstrate to you that actually, in criminal law, moral decision making, unfortunately, can't be suspended. So judges will always have to reason morally. And to also show that when judges claim they were just applying the law in criminal law, that is usually a choice. Very rarely does the law tie you such that you can't find some measure of justice. You'll notice, of course, Cameron does not just do as he like. There's no dispute in Phakane that you can't convict someone of murder. Or uphold the murder conviction without the record. So he accepted that. And certainly, there wasn't any dispute that Legoa did in fact traffic that amount of marijuana. And it also doesn't mean that Cameron doesn't believe in punishment. Never assume that. You'd be quite unfortunate. If you did, then you found him on the other end of the page. Instead, it's that all punishment must be lawful punishment. Unlawful punishment is a matter of judgment. And so you have, as an example, a clear judicial record of an interpretivist judge (Cameron) who apparently doesn't think the law is separate from morality. ROBBERY Robbery is classified as a property offence → main reason why we do so is because ‘property’ is the interest that underlies the wrongfulness of the crime. There may be other additional aspects of the offence but the interest that is being protected primarily is property. This doesn’t mean there are not unique ways to violate property – one unique way of violating property is simple deprivation i.e. what we call in the US a ‘takings’ → depriving person of either possession or ownership. In many ways it tracks what you would think of as the civil law dynamic of property wrong → rei vindicatio is the remedy. We know possession is also protected in property law. Same goes for criminal law → specific offence protects that particular interest → and response to that violation would be theft. So theft is the appropriate crime that tracks the wrong of deprivation.  Theft is broadly defined – you can steal something by having possession of it or by depriving the rightful property holder of some aspect of their R’s So it isn’t the case always that a theft must be what we call a ‘complete taking’ → doesn’t have to be an absolute deprivation of someone’s property → in fact we call it an act of appropriation. Example: Mineral rights in property law Previously under comm law, a mineral R was a limited RR that flowed from ownership. If you purported to give a certificate to one mining company when you are not the owner of the mineral Rs then if owner lays criminal charges they would claim theft of their mineral Rs. Note: under current statutory framework mineral Rs is its own self standing R → just using this example to explain why theft doesn’t always necessarily mean a complete deprivation. Nonetheless, most thefts are complete deprivations & usually people appropriate entirety of the Rs and the property itself. A necessary component of theft is the intention element → the intention to appropriate – and arguably, this is probably the critical aspect. Sometimes you can deprive someone of their property but not intend to appropriate it. Example: - If you see a cell phone fall out of your classmate's bag & pick up that cell phone. - Let's say it's a Friday last lecture and you intend to give it back to them on Monday. - Your classmate will panic when they get home and may say someone stole their phone. - But NB that intention to appropriate must be unlawful. - Because you as the person in possession of it never intended to appropriate it = not unlawful. - You, in fact, intended to keep it for safekeeping and then return it to the person. By unlawful you can say ‘without legal justification’. So sometimes you can intentionally appropriate property with legal justification. E.g. the asset forfeiture unit does this all the time → seize your assets when under investigation. They do an investigation if they suspect you've been involved in corruption, they seize assets depriving person of ownership etc pending an investigation. Isn't the case that asset forfeiture intend to keep it forever, but they certainly intend to deprive you, and they will use force if you are aggressive. Now problem with theft, at least comm law, was that it historically was not a crime but a delict → it evolved from delict of damage to property i.e. aquilian action. Incidentally so did robbery Ordinarily aquilian liability is about tangible property – not damage usually to good name or intellectual property So in comm law theft used to be considered of tangible object - For tangible objects wrongfulness component mostly boiled down to permission - For tangible objects, the wrongfulness component of the legal justification mostly boils down to the permission to the property. - So the internal state of mind or mental state of the owner of the property was always central to the Q of wrongfulness. Did they give permission or not? Did they expressly tell me, don't touch this.  - That was relatively easy to solve for modern context case of theft because when were dealing with tangible property, all we need is testimony from the client etc and then that shifts the general onus to defendant to explain why they had that property. - But in modern context had problems like e.g. theft of shares. Or shared documents. E.g. checks – we don't use checks anymore, except for specific circumstances, but we do use it commonly in the law of the sea, generally. - So as part of transferring property, it involves the physical hand over of some document. - But you see the problem here. If for instance, delivery in property law depended on the transfer of a physical document, people just often stole that document without stealing the car, for instance. - The common law was capable of quickly adapting to that. - So the tangible nature of the property was broadly interpreted. When it comes to robbery, robbery is also a a property related offence. But it's concerned with one unique way of appropriating that property, and that is through violence. So robbery is distinguished from theft by the violence component. Only adjustment to intention → intention to appropriate through violence. Critical to understanding definitional elements of robbery is that intentional component must foresee violence. Dolus eventualis must include violence → reconciled themself with possibility that they may have to use violence in order to appropriate. You can see it is easy to understand cases of robbery dealing with tangible property that involved a simple intention to appropriate. Because the only adjustment we have to make about the intention of violence is the intention to appropriate through violence. But critical to to understanding the definition components of robbery is that the intentional component must foresee violence. When justifying use of violence it is difficult to justify for private persons. Standard definition of robbery → theft through violence with intention to use violence. It must be a means of appropriating the property. And this would seem like obvious standard component. Wrongfulness → appropriating property through violence without justification. The thing you have to justify if claiming no unlawfulness is that you were justifiably using violence to appropriate that property. E.g. asset forfeiture appropriation → asset forfeiture unit may use force if person has private security refusing asset forfeiture. E.g. Hawks uses weapons and may use proportionate force in case you resist – violence is justified legally. Thing you have to justify, if you're claiming there was no unlawfulness, is that you would justify using violence to like being evicted from their homes. Sometimes, particularly, very rich people would have, for instance, private security that would attempt to deny an asset forfeiture unit from the instance taking that property. So an asset forfeiture unit may indeed use force, in order to obtain that property. Basic point = wrongfulness, if you're defending a client from robbery, the thing you have to also justify is the use of violence. Which is why it's difficult to justify at least for private persons. Now that being the standard definition of robbery, it's basically theft through violence.  So you intend to appropriate your thing, and you also intend to do so by violence. And you do so without justification. The basic point is, how has the crime evolved over time to deal with what we might not call the ‘penumbra’ cases of robbery? What you see as we track in the cases, is exactly courts dealing with the penumbra cases of robbery. Cases that don't basically fit a core case of robbery e.g. the standard house breaking. A core case/standard case would be where someone beats a homeowner and ties them up and takes their property. I.e. cases where a significant degree of force is used in the presence of the owner, & it's not disputed that it was unlawful. Q becomes, when does robbery stop being robbery and becomes some other offence, the further we move away from a core case like that? So lets start with a relatively easy departure → imagine an instance when not a lot of force is used – does robbery have a force or violence threshold? So think of a case for instance where walking on the street, you bought yourself a new leather handbag. And then your bag is snatched, but you don't really notice it. Maybe you're staring at something and you feel your bag move and you look down and hes gone. Still robbery – court said robbery does not require significant violence only some form of violence. So you might ask yourself, but how is that a case of theft? Theft usually involve some low level of violence? That's true. But what would make the robbery distinct is that the acquisition of the thing isn't only through violence or primarily through violence. E.g. Imagine someone persuades you to hand over some share certificate and they are dressed up as police officers and you let them in and you hand over documents to them, in that instance, they appropriated your property, but through what means? → Fraudulent misrepresentation, not violence. They might have been dressed up as if they were state officials, as if they have licence to use violence, but they didn't expressly threaten any. So the question is also, is a mere threat of violence sufficient for the crime of robbery, or must there be action violence? So that takes us then to the case of Gesa (Looking at the cases chronologically). EX PARTE MINISTER OF JUSTICE: IN RE R V GESA; R V JONGH 1959 (A). Decided by Schreiner AJA. Central Q before court was, what do we do when A threatens B with personal violence in order to get possession of a thing owned by B? M uses this language very specifically. With ‘personal violence’ in order to get possession of a thing owned by me. This is early 20th cent → so very much old comm law position that a threat of violence is insufficient to constitute robbery. Lower court found it couldn’t be a case of robbery and that is why it went on appeal and Schreiner had to decide it. Schreiner understood the Q for him as basically being the voluntariness component of the surrender of property → this is because what makes robbery wrongful is that you overcome the will of the possessor or owner through violence – it is ஃ an involuntary surrender/takings, the purpose of the violence is directed at overcoming the will of the owner. The purpose of the violence is directed at overcoming the will of the owner who presumably doesn't want you to. So for Schreiner is a threat of violence sufficient?  So he says the basic reason why robbery is unlawful or wrongful is that it need only be against the will of the owner or the possessor. This is an important phrasing thing. It need only be against a will of the owner or the possessor. He, in fact, says, compare false misrepresentation to the case of a threat – these seem obviously different – a false rep is a subversion of the will. And so clearly, in the case of a threat, the owner objects to that taking. So for Schreiner, it's just obviously a case that e.g. extortion (classically what we might call blackmail) → so he accepts here there are blurred lines between false misrepresentation and the threat of violence might be present in a case of extortion. But you'll understand why extortion would be trickier, mainly because it would involve elements of both. The distortion usually requires some false representation being made to someone, and then the threat of either revealing some damaging information or involving someone else that the person cares about. So you can imagine cases where there are aspects of false representation and violence and threat. And then in a case where there is both robbery and extortion, a case of extortion, for instance, might involve a large someone. Or might involve a very serious threat being made as opposed to a much lesser threat of violence in case of fraud. It depends on threats. But he says that is not facts for this court – so obiter & point for some future courts to decide. But understand why extortion would be tricker as would involve elements of both → some elements of false misrepresentation and threat of revealing some damaging info or harming someone else. Extending robbery to threats of violence. Pretty straightforward development. When saying voluntariness here or involuntariness – not talking about the conduct component of general liability. Talking about unlawfulness. ‘Voluntariness’ here is in terms of unlawfulness not conduct – like permission (think of it as a species of consent). And maybe a good synonym for voluntary or solely voluntariness here would be something like permission. Can’t only use the word consent because that has a specific meaning in the context of sexual offences, but you can also think of it as a species of consent that we're talking about about voluntariness or involuntariness. Another point is, when we say voluntariness here – don't mean in the intention sense – someone can hold gun to your head and threaten to kill if don’t steal laptop but you will still be acting intentionally → defence would be you were forced to do it – so what you invoke is necessity – if I didn’t do it someone was going to hurt me or 3rd party. So ordinarily, what you invoke is necessity. Because if I didn't do it, someone was going to hurt some third party or me etc. Reason why you are doing it is allegedly because of necessity. So in that example, we don't use voluntariness to mean intention or intentionality. You're still acting with intention. Someone hasn't drugged you (not under some state or some confused state). You're perfectly aware of what you are doing, but the reason why you're doing it is allegedly because of necessity. Just make that distinction. Voluntariness in Gesa is unlawfulness. It's not conduct. Gesa was first case that law had to develop our crime of robbery to fit some penumbra cases. S V YOLELO 1981 (A)  The next instance or problem, the court had to face, is basically what you can think of as a problem about sequence of events. Q: what happens when someone's property is actually seized, but the violence component does not come before the takings/ appropriation, but the violence component either happens afterwards or at the same time as the takings? It's quite obvious that if it's happening at the same time, that doesn't really present us with a conceptual problem. I need a handbag. I take them. That's pretty straightforward. What happens when the violence is afterwards? Is it the case then that that person is guilty of some other crime, let's just say assault, but not of robbery? Because recall under the classic common law robbery was distinct because it was through the means of violence that you seized someone's property. So, logically, one would think violence has to precede the seizure of the property? Because violence is the instrument you use to obtain that property? So what then happens when violence is only initiated after comfortable seizure. So that's what Yolelo's case is dealing with. Note: don't neglect this case Facts M was residing for short period at her fathers small holding on farm. One afternoon M let in her fathers workman david who she knew and grew up with – locked up afterwards and assumed it was just her and David on property, however, she walked into bathroom and saw a second unidentifiable man She recognises it was another one of her father’s employees Lazurus and she asks what hes doing and he gestures for her to keep quiet – she screams he then hits her on head with a rod, then ties her up and restrains her. Upon waking up and coming to her senses and upon her father’s return they do an inventory of the house on what was stolen → was several monies and goods etc. In Lazarus’ and others testimonies, it became clear we couldn’t prove Lazarus used force prior to seizing money or goods. Could not show Lazarus allegedly intended to use force to seize property or even that the seizure of property came after the use of the violence. All you could show was that L intended to use force but that was to restrain M, and though it could've been after the theft – it matters for purposes of sentencing – if convicted of theft there is lesser sentence and assault charge could then hopefully also lead to lesser sentence if you argue no intention was not to do serious harm, only to subdue. Q here was not only if crime committed but which crime. HC found violence has to precede the appropriation/takings, so he could not be convicted of robbery → goes to AD. Outcome AD says no, thats not what robbery is always understood as in common law. They instead find that the proper principle here is that there must be some connection or relationship between the taking and the violence such that it constitutes a single action. Must just simply be a sufficient connection or relationship between the taking by violence in the course of the one single action. Don’t have to show force preceded the takings, but that it was necessary to complete the single action of robbery. So fact that L relied on force to restrain M. Can reasonably infer what is needed to complete robbery → But what we are certain is that L intended to use force and to do so in order to complete robbery e.g. if she made noise there would have been an unsuccessful robbery.  We are certain L intended to use force – so its a misdirection to assume that there is no intention here and that somehow unlawfulness is excluded because force did not precede the taking Court uses phrase – they say there is a connectional relationship in the ‘judicial sense’ – using the language of legal causation? But this is not an aspect of legal causation, court just borrowing language of legal causation - not factual component but normative component → Q: is this so remote from actual robbery itself? We can imagine cases where violence takes place after theft but has nothing to do with theft itself Principle: violence does not have to proceed the taking. Illustration of this Imagine group of people conduct heist and after fact of heist being successful the group is at a bar that afternoon and gets in a bar brawl about how to divide the proceeds. Then from there innocent victims caught in violence → can see there is a degree of remoteness there. The takings was arguably already completed without the need for violence – before or after didn’t matter Violence erupts independently – wouldn’t be sufficiently connected to the takings – so this isn’t a catch all principle that says if there is violence anywhere in the course of a theft it is robbery. Needs to be like in Yolelo, part of the same action – pretty uncontroversial. Note: - The court has not quite dealt with a threat of violence that comes much much later after the fact. But arguably, the principle in Yolelo is such that if that threat is explicit enough about which property was seized and why, you would argue that even if the threat is made much later, Yolelo's case would cover the same facts. - I can't quite think in principle why we wouldn't say that on the principle alone. - There might be other reasons like statutory limitations, but not on the Yolelo principle. The principle of Yolelo is basically → violence does not have to precede the taking. It does not have to come before. For it to be robbery, the violence just has to be sufficiently related to the taking. What you're actually arguing for is a sufficient connection or sufficient relationship between the taking and the violence. When the taking has already been completed and violence isn't necessary for you to keep the thing & violence happened around same time but not connected to e.g. funds stolen. Notes So the violence happens, let's just say, around the same time, but it isn't connected to the taking itself. E.g. the brawl was about how to divide up the funds. It wasn't about keeping the funds by violence. Whereas, for instance, his example of threatening the owner with violence, arguably under Yolelo, would still hold even if he threat, was done much later. That's the point. So if we accept the Yolelo principle, there just needs to be a connection between the violence and the taking. The violence can come afterwards. What do you do in cases where there has essentially been some kind of connection, but you're disputing the sufficiency thereof? In fact, you're saying that the sequence of events is such, as argued with Moshikaro’s bar brawl example, that the violence happened, but it has nothing to do with the takings. One way you could cleverly argue that is by trying to argue that – yes you committed violence against the specific victim but the taking happened when victim wasn’t even there. So it can’t be case that the violence was necessarily an instrument or a means to secure the taking, so basically saying the sequence of events is disconnect here – brings us to case of Seekoei. EX PARTE MINISTER OF JUSTICE: IN RE S V SEEKOEI 1984 (A) Facts Accused surprised woman on her farm. Knew woman owned her own store that had done well and she was wealthy and she kept her cash locked up in the till at her store and not in her home. But of course, the store was well protected and well guarded as thats where the money was where she would take it to the bank at close of business. It seems the accused also did his homework here and knew that she doesn't always go and cash her funds at the end of the day. She has specific days on which to do. So key reason it is easier to get to the accused in her home where she's isolated, if he wants to get the keys for the shop, including the keys to the safe and so forth. He attacks her in her home using violence/force to get her keys. Then goes to shop and leaves her behind and he then helps himself to the money and other items in shop and leaves. He is later arrested and Q becomes: was there a sufficient connection between this violence and the taking, considering it happened in 2 separate places? Is this looking like a Yolelo scenario. The apparent distinguishing feature between this case and Yolelo = in Yolelo the takings happened in the presence of the owner/possessor. Trial court Trial court finds that the robbery here must in fact be in the presence of the accused. Yolelo’s case does not cure that specific defect. Relies on the factual distinction here – where in Yolelo's case, it was in the presence and then in Seekoei it isn't in the presence of the owner. He then reasons that in fact, there's good reason for us to focus on this presence criterion and roughly translated, he says the basic rule is that there must at least be a contemporaneous connection between actus reus and a mental state (mentus rea). Both must be present at same time → so for trial court, must at least show actus reus in this case was already completed at the time this intention was manifested. The basic rule is, there must be at least a contemporaneous connection between an actus reas. and a mental state. So for the trial court, you must at least show that the actus reas in this case was already completed at the time that the intention is manifested. Calls this a basic rule about contemporaneity – it must be contemporaneous. Must show violence was used in order to obtain the property and that must co exist with the mental state of the accused. So when the violence is used, you must show that the violence was used in order to obtain the property, and that must coexist with the mental state of the accused. The problem is with presence, it might just be that the accused in this case (this is the accused version here) that the accused intended to commit an ordinary house breaking, took some stuff in the house, and then later realises, oh, wait. I have the shop keys. So then I can help myself in the meantime to suffer the cash in the store. But you wouldn't say, on this version of events, that the mens rea existed at the same time as the actus rea → only way for us to say that reliably is by us requiring that it be in the presence of the victim. Because we have to show that the accused used this force to overcome the will of the victim in order to obtain the property. So all the elements of the offence must be present at the same time – must be contemporaneous.  They say principle can’t be extended here – old English principle – mens reas and actus reas must correspond at same time. Case goes to AD. Outcome CJ Rabie argues this is incorrectly decided in lower court for many reasons. But probably the most important reason is that the trial court is too invested in English law and our law is not English – it is RDL and they say shouldn’t let nefarious English influences distract us form the basic principles of the case. So the first reason he gives is that this particular principle is mostly of English origin and applied to a narrow set of instances and wasn't quite a general principle accepted in our law, and the sources are so confused that there's not much help in relying on this principle. Secondly, he says, even if it were true, this is a different question to the principle in Yolelo's case, which is basically that the violence and taking must form part of the same transaction or the same action. So whatever you think about this English principle takes you nowhere in deciding the question of Yolelo’s case. In fact, it's a confusion to conflate the 2. The basic principle in Yolelo – is there a sufficient connection or relationship between this such that we could reasonably call it the same action, the same conduct, the same transaction etc. And simply because it wasn't done in the victim's presence, doesn't answer Yolelo’s point. There is a sufficient connection between using violence to secure the keys of the shop, even if that's at a separate location, and then later appropriating the property at the shop. These two things are still connected in the juridical sense. What they mean is that, normatively, we understand as a basic judgment that you couldn't really have one without the other in the way these facts transferred. Making a judgement here that this is one extended robbery and if that is the case then the mens rea is present as well as the actus reas because the way we understand the crime is over an extended period of time – the crime was not a single instance but a prolonged sequence of events. So the trial code misdirects itself even on its own logic of contemporaneity as they were both present - trial court didn’t understand that this was the same action i.e. robbery Robbery is the thing that ties together these events. They are not just destroying the things that happened. They all were brought into being with the intention of using force to secure property perfectly. Notes The reason why the trial court found the way it did was that in English law, this rule of contemporaneous, was seen as justified precisely because it limited criminal liability. It was a principle that was applied in favour of the accused. It was precisely supposed to narrow the cases in which we actually hold people liable when crimes are committed over a period of time. English law considers this as a pro liberty interpretation. So whilst it might have seemed to you when you look at the facts of Seekoei, why in the world would a trial judge go off on this tangent? The reason is the trial judge was very aware of what the factual matrix was. That wasn't the question. The question for the trial court was what should the law understand to be the relevant aspects of this factual matrix? What does the law require for sufficient liability? So that's why they went down this particular rabbit hole. And in fact, at the time when Seekoei was decided, quite a lot of human rights lawyers thought that trial court had a more progressive interpretation → it was limiting liability for robbery, which usually triggered a whole set of minimum sentences and harsher punishments if you were convicted of robbery instead of theft.  So there were good reasons why the trial judge went down this particular pathway. Of course, many other lawyers also thought it was a perfectly reasonable thing to say, what actually is that issue is not rather this question of contemporaneity, but really just about a sensible interpretation of Seekoei’s case. All you have to do is just make sure that the principle isn't abused. And the basic point is that Seekoei was not an abuse of that, at least reasonably speaking, because clearly, the nature of this connection between the taking and the violence at least reveals some kind of plan here. So we are not extending liability, arguably, inappropriately → especially in context of property That's just to explain why this issue of contemporaneity, mens rea and actus rea was irrelevant. And especially in the context of robbery, all of the elements of the offence having to be present at the same time was one way you could try to narrow liability for offenders. At least for Robbery, not for theft. MASINGILI V MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 2014 (CC) Now, springing off from that importance in sentencing, we get to Masingili, which was decided by CC. Judgment written by justice van der Westhuizen → has come under some criticism. Case is controversial mainly because it is a case decided in the constitutional era that many people saw as applying the kind of reasoning you would have seen from the AD around common law principles. And the kind of reasoning we're talking about is part of a larger conversation linked to the notion of transformative constitutionalism. And part of this is about changing legal culture and that legal culture should not be so obsessed with distinctions → this is all part of formalism. Allegedly, the court here in Masingili was being overly formalistic is the apparent source of the controversy. Or worse, the court was also not just being formalistic, so think positivism, it was even using moral language as if this was a moral question. And that was also criticised, because our constitutional values notionally are explicitly stated, and when judges use moralised thinking, it's just a way for them to smuggle in their ideologies, whatever it is. So the case apparently stands out as controversial for that reason as well. Moshikaro thinks both critiques are wrong. Facts The facts are quite straightforward. It's the classic case of an armed robbery where people agreed to rob a bank. The controversial aspect here is the conviction of what we'll call the accomplice → driver of the getaway car. So not the person in the bank robbing the people with the gun, threatening the people. The person standing guard, ready to warn, and the person driving the getaway car. Everyone is arrested and they turn on each other. And then the question is, can the accomplice be convicted of robbery with aggravating circumstances? The aggravating circumstances in the case is the use of a lethal weapon. Section 11 b of the Criminal P