SPOF 6212 Learning Unit 3 2024 PDF

SPOF 6212 Learning unit 3 Crimes against life and bodily integrity  Murder Unlawful and intentional causing of death of another human being  Causing death – voluntary act or Elements of crime omission Of another perso...

SPOF 6212 Learning unit 3 Crimes against life and bodily integrity  Murder Unlawful and intentional causing of death of another human being  Causing death – voluntary act or Elements of crime omission Of another person – must be a living human being Unlawfully – no ground of justification Intentionally – dolus directus, dolus indirectus or dolus eventualis  Punishment for murder Death penalty = unconstitutional so only type of sentence is imprisonment Section 51 of Criminal Law Amendment Act 105 of 1997 provides for certain mandatory minimum periods of imprisonment Court is bound to sentence a person found guilty of murder to LIFE IMPRISONMENT if : Murder was planned or premeditated Y was a law enforcement officer who was murdered while performing his duties (irrespective of whether he was on duty at the time) Y was somebody who had given evidence / was likely to give evidence in a trial in which somebody had been accused of a serious offence Y was a person under the age of 18 years X committed murder in course of committing / attempting to commit rape or compelled rape Murder was committed by a group of persons acting with common purpose  X committed murder in course of committing robbery with aggravating circumstances Murder was committed by a group of persons acting with common purpose Y was killed in order to unlawfully remove any part of his body, or as a result of removal of such body part Y’s death resulted from certain crimes mentioned in the Witchcraft Suppression Act 3 of 1957 Y’s death resulted from physical abuse or sexual abuse, as contemplated in the definition of ‘domestic violence’ in the Domestic Violence Act 116 of 1998 by X who is or was in a domestic relationship with Y Section 15 of Criminal and Related Matters Amendment Act 12 of 2021 Where above circumstances are not present, court is obliged to impose following minimum periods of imprisonment : 1st offender = 15 years 2nd offender = 20 years 3rd offender or subsequent offender = 25 years Court is bound to impose life imprisonment or other minimum periods UNLESS there are ‘substantial and compelling circumstances’ which justify the imposition of a lesser sentence In S v Malgas 2001 (1) SACR 469 (SCA), court formulated various rules to be kept in mind by courts when interpreting ‘substantial and compelling circumstances’ Most important rule = if court is satisfied that circumstances of case render prescribed sentence unjust in that it would be disproportionate to crime, criminal and needs of society, so that an injustice would be done by imposing that sentence, court is then entitled to impose a lesser sentence  Culpable homicide Unlawful and negligent causing of death of another human being  Test for negligence (a) Whether the reasonable person in the same circumstances would have FORESEEN THE POSSIBILITY that Y’s death may result from X’s conduct; (b) Whether the reasonable person would have TAKEN STEPS TO GUARD AGAINST such a possibility; and (c) Whether X’s conduct DEVIATED from that what the reasonable person would have done in the circumstances OBJECTIVE TEST  Assault Assault consists in any unlawful and intentional act or omission : (a) Which results in another person’s bodily integrity being directly or indirectly impaired, or (b) Which inspires a belief in another person that such impairment of her bodily integrity is immediately to take place Elements of crime Application of force – direct or indirect Inspiring fear of immediate force Unlawfully – may be justified by private defence, official capacity, consent Intentionally – dolus directus, dolus indirectus or dolus eventualis Application of force – direct or indirect Inspiring fear of immediate force Direct o Must threaten violence to e.g. X punches Y or X spits in Y’s face person of Y o Must threaten immediate Irrelevant whether Y does not feel much violence (or any) physical pain o Must threaten unlawful violence Indirect o Y must subjectively believe e.g. X sets a vicious dog on Y or that X intends to carry out X derails a train on which Y is travelling threat  Attempted assault In certain situations, X’s threat of bodily harm does not give rise to a corresponding fear of such harm on the part of Y : Y is unaware of the threats because he is drugged or asleep Although Y is aware of the threats and comprehends them, but she is completely unperturbed by them because she knows it is only a toy pistol that X is pointing at her X threatens Y but Y is deaf and does not hear X’s words Assault with intent to do grievous bodily harm All requirements for ordinary assault apply to this crime but there must also be intent to do GRIEVOUS bodily harm Immaterial whether grievous bodily harm is actually inflicted – intention to do so is sufficient Important factors which may indicate such an intention : Nature of weapon or instrument Way in which weapon was used Degree of violence used Part of body aimed at  Criminal Law (Sexual Offences and Sexual crimes Related Matters) Amendment Act 32 of 2007 Amends all aspects of laws relating to sexual offences Definitions in statutory offences are gender-neutral Statute targets all forms of sexual penetration committed without consent, irrespective of gender Sexual penetration = broadly defined and includes ‘any act which causes penetration’ Consent = ‘voluntary or uncoerced agreement’ Absence of consent – definitional element of most offences in Act Sexual assault Section 5 of Sexual Offences Act A person (X) who unlawfully and intentionally sexually violates a complainant (Y) without consent of Y, or inspires the belief in a complainant (Y) that Y will be sexually violated, is guilty of offence of sexual assault Section 5(1) Elements of crime Section 5(2) Act of sexual violation of another Inspiring of a belief in another person that person she will be sexually violated Without consent of that person Unlawfulness Unlawfulness Intention Intention Sexual violation = sexual acts which falls short of actual penetration Rape Section 3 of Sexual Offences Act Any person (X) who unlawfully and intentionally commits an act of penetration with a complainant (Y) without his or her consent is guilty of the offence of rape  Common law Section 3 of Act 32 of 2007 A male person having Any person (X) who unlawful and unlawfully and intentional sexual intentionally commits an intercourse with a act of penetration with a female person complainant (Y) without without her consent his or her consent is guilty of the offence of rape Elements of crime Sexual penetration of another person Without that person’s consent – consent means voluntary or uncoerced agreement Unlawfully – consent by Y is not a ground of justification, but a definitional element of crime (without consent) Intentionally – X must know that Y had not consented to sexual penetration (dolus eventualis is sufficient) Includes any act which causes Sexual penetration of another person penetration to any extent whatsoever by : ✓ Genital organs ✓ Any other body part ✓ Any object or ✓ Animal’s genital organs into ✓ Genital organs ✓ Anus or ✓ Mouth of another person  Lack of consent is an essential characteristic of rape Consent based on fraud Error in persona e.g. OnlyY thinks she is committing misrepresentation an act of with regards to identity sexual penetration (not status) as wellwith her husband, as nature of deedbut it is (sexual actually X penetration) to be committed = rape Error in negotio e.g. Y is under impression that an act of sexual penetration is medical treatment Consent obtained by force is invalid Valid consent also cannot be given by a sleeping Submission is not consent or drugged person, an intoxicated or mentally defective person, a person younger than 12 Section 51 of Criminal Law Amendment Act 105 of 1997 provides for certain minimum periods of imprisonment High Court or Regional Court in following circumstances must sentence a person convicted of rape to imprisonment for life : Y was raped more than once by X or any co-perpetrator or accomplice Y was raped by more than one person and such persons acted with common purpose X is convicted of two or more offences of rape, but has not yet been sentenced X knows that he is HIV positive Y is below the age of 16 years Y is a physically disabled woman, who, owing to her disability, is particularly vulnerable Y is mentally ill Rape involved infliction of grievous bodily harm  See section 15(c) of the Criminal and Related Matters Amendment Act 12 of 2021 for additional circumstances which may result in a minimum sentence of life imprisonment for a rape conviction Where above circumstances are not present, court is obliged to impose following minimum periods of imprisonment : 1st offender = 10 years → 15 years 2nd offender = 15 years → 20 years 3rd offender or subsequent offender = 20 years → 25 years Section 16 of the Criminal and Related Matters Amendment Act 12 of 2021 removed the crime of rape from Part III of Schedule 2 and placed it in Part II of Schedule 2 in the Criminal Law Amendment Act Court is bound to impose life imprisonment or other minimum periods UNLESS there are ‘substantial and compelling circumstances’ which justify the imposition of a lesser sentence In S v Malgas 2001 (1) SACR 469 (SCA), court formulated various rules to be kept in mind by courts when interpreting ‘substantial and compelling circumstances’ Most important rule = if court is satisfied that circumstances of case render prescribed sentence unjust in that it would be disproportionate to crime, criminal and needs of society, so that an injustice would be done by imposing that sentence, court is then entitled to impose a lesser sentence Following factors are not ‘substantial and compelling circumstances’ Complainant’s previous sexual history Complainant’s apparent lack of physical injury Accused’s cultural or religious beliefs about rape Any relationship between accused and complainant prior to commission of offence