SPOF 6212 - Learning Unit 7 PDF

SPOF 6212 Learning unit 7 Crimes against the state, administration of justice and public welfare High treason A person commits high treason if, owing allegiance to the Republic of South Africa, he unlawfully engages in conduct within or outside the R...

SPOF 6212 Learning unit 7 Crimes against the state, administration of justice and public welfare High treason A person commits high treason if, owing allegiance to the Republic of South Africa, he unlawfully engages in conduct within or outside the Republic, with the intention of (a) Overthrowing the government of RSA; (b) Coercing the government by violence into action or inaction; (c) Violating, threatening or endangering the existence, independence or security of RSA; or (d) Changing the constitutional structure of RSA Unlawful and intentional Sedition (a) Taking part in a concourse of people violently or by threats of violence challenging, defying or resisting the authority of the state of the Republic of South Africa; or (b) Causing such a concourse Concourse – crowd or assembly of people  Unlawful and intentional Public violence performance of an act, or acts, by a number of persons which assumes serious proportions and is intended to disturb the public peace and order by violent means, or to infringe the rights of another Elements of crime Unlawful – participation of individual may be justified on grounds of compulsion An act Intention – includes an intention Performed by a number of to disturb the public peace and persons order by violent means, or to infringe the rights of another Which assumes serious proportions Interest protected = public peace and order  Joint action Public peace and Crime can be order must be committed in a disturbed by a number public place and of persons acting in on private concert – crime property cannot be committed by someone acting alone Must be accompanied by Those participating in violence or a threat the disturbance must of violence – does act with a common not have to be purpose actual disturbance Serious proportions Whether or not act can be classified as serious will depend on various factors : Number of persons involved Time Place Duration of disturbance Cause of disturbance Status of participants Whether or not they are armed Whether persons or property are injured or damaged Way in which disturbance is settled (if it is settled)  Which legal interests are protected ? High treason Sedition Public violence Existence, Authority of the Public peace and independence and state tranquility safety of the state Common law perjury Unlawful and intentional making of a false declaration under oath (or in a form allowed by law to be substituted for an oath) in the course of a judicial proceeding Elements of crime Making of a declaration Which is false Under oath or in a form allowed by law to be substituted for an oath In the course of a judicial proceeding Unlawfulness – fact that, shortly after making a false statement, witness acknowledges that statement was false and then tells truth is no defence to charge of perjury Intention – X must know or at least foresee possibility that his declaration is false False declaration Declaration must be objectively false Declaration may be oral or in writing (affidavit) Falsehood may be made expressly or impliedly  Under oath, or in a form substituted for oath (person administering it must have necessary authority) Oath – witness swears that he will tell truth Perjury can be committed in all these instances Affirmation – witness declares that he solemnly confirms that his Crime cannot be evidence will be the truth committed by a legal representative in the course of an Warning – usually given to young argument to court children In the course of a judicial proceeding Extrajudicial, false sworn statements are also punishable but not as common law perjury Extrajudicial statement = statement made outside court concerning a matter which has nothing to do with the dispute decided in court Legal proceeding can be criminal or civil case False sworn statements made before an administrative tribunal do not constitute the crime e.g. at a meeting of creditors in terms of Insolvency Act  If a person has made any Statutory perjury statement on oath (orally or in writing) and then makes another conflicting statement – he will be guilty of an offence and may be convicted and punished for perjury, unless it is proved that when he made each statement, he believed it to be true Section 319(3) of Criminal Procedure Act 56 of 1955 State must prove : (a) X on two different occasions made two statements under oath; and (b) The statements conflict with each other  Common law perjury Statutory perjury Only ONE statement comes There are TWO statements that into the picture come into the picture Can be committed in the Neither of the statements need course of a legal / judicial be made in the course of a proceeding only legal / judicial proceeding (although one usually is)  Prevention and Combatting of Corrupt Corruption Activities Act 12 of 2004 Section 3 creates a GENERAL offence of corruption ANYONE that (a) Accepts any gratification from any other person, or (b) Gives any gratification to any other person In order to act in a manner that amounts to unlawful exercise of any duties, is guilty of the crime of corruption  Giver Recipient Person who Person who GIVES ACCEPTS gratification gratification  Elements of GENERAL crime of corruption Crime committed by recipient (Y) Crime committed by giver (X) Acceptance by Y (element of an act) Giving by X to Y (requirement of an act) Of gratification Of gratification In order to act in a certain way In order to induce Y to act in a certain (inducement) manner (inducement) Unlawfulness Unlawfulness Intention Intention Elements of crime continued … No defence for Y if : Ⅹ Did not accept gratification directly but only indirectly Meaning of ‘accept’ = to agree to Ⅹ Did not in actual fact perform accept a gratification or to offer act which X induced him to to receive a gratification : perform Ⅹ Corrupt activity between X and To demand, ask for, seek, Y was unsuccessful request, solicit, receive or Ⅹ State or private enterprise obtain gratification concerned with transaction did To agree to perform above acts not suffer prejudice To offer to perform above acts (irrelevant) Ⅹ Y accepted gratification but did not in fact have power / right to do what X asked  Favour Advantage Avoiding a of any loss nature Office, Monetary Gratification status, employment Inducement refers to a wide variety of aims which the parties may have in mind e.g. recipient should act in a manner which amounts to an unauthorised exercise of power, abuse of a position of authority or achieving an unjustified result Act creates a number of SPECIFIC crimes of corruption applicable to specific classes of persons : Public officers e.g. a civil servant – section 4 Members of prosecuting authority – section 9 Witnesses and evidential material during certain proceedings – section 11 Unacceptable conduct relating to witnesses e.g. use of intimidation, physical force, improper persuasion or coercion with intent to influence, delay or prevent a witness testifying or to cause or induce a witness to testify in a particular way or untruthful manner etc. – section 18 Section 34 – Duty to report corrupt activities 34(1) Any person who holds a POSITION OF AUTHORITY and who knows or ought reasonably to have known or suspected that any other person has committed : (a) Any of the following offences General offence of corruption Specific offences of corruption relating to specific persons Offences in respect of corrupt activities relating to receiving or offering of unauthorised gratification e.g. an employment relationship Offences in respect of corrupt activities relating to specific matters e.g. witnesses, contracts, tenders, auctions, sporting events or gambling games or games of chance (b) the offence of theft, fraud, extortion, forgery or uttering a forged document, involving an amount of R100 000 or more, must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to any police official, failing which that person commits an offence Section 34 – Duty to report corrupt activities 34(1) Any person who holds a POSITION OF AUTHORITY and Where it is established that the person knew and if that is the case there is a duty to report. This is straightforward. who knows An HOD cannot disavow knowledge of financial transgressions as he bears ultimate responsibility for the spend of their or department. In this case, if it is established that the HOD, ought reasonably to have by exercising reasonable care, should have known of the known or suspected transgression then the duty to report immediately arises. The objective test is applied because in certain cases the true that any other person has set of facts may be hidden from the HOD and what is placed before him may lead him to reasonably conclude that all is committed the relevant well. One would therefore ask that with the application of offence reasonable care, should he have picked up the anomaly and if the answer is in the affirmative then a duty to report arises.  Use and Drugs and Drug Trafficking Act 140 of 1992 possession of Section 4 drugs No person shall use or have in his possession (a) Any dependence-producing substance or (b) Any dangerous or undesirable dependence-producing substance, unless … (statutory grounds of justification) Dealing in Drugs and Drug Trafficking Act 140 of 1992 drugs Section 5 No person shall deal in (a) Any dependence-producing substance or (b) Any dangerous or undesirable dependence-producing substance, unless … (statutory grounds of justification)  Categories of drugs Dangerous Undesirable Dependence- dependence- dependence- producing substance producing substance producing substance Prescription medication Coca leaf, morphine, Heroin, mandrax, opium, cocaine methamphetamines  Section 4 – Use or possession of drugs Use Narrow meaning of possession Smoking, inhalation, injection or ingestion X possesses drugs with intention of keeping them or disposing of Possession them as if he were owner (possessio civilis) Juridical sense = physical element of control (corpus or detentio) + Extended meaning of mental element of intention Presumption of possession (animus) possession (if drugs found in X keeping, storing of having drugs immediate vicinity in custody or control or Physical control may be of X) supervision on behalf of someone actual or constructive is unconstitutional else (possessio naturalis) and no longer valid  Unlawfulness may be excluded by Common law Grounds of justification e.g. necessity Grounds of justification e.g. if X is a patient who acquires / buys drug from a medical practitioner, Statute dentist, vet or pharmacist or X is a medical practitioner, dentist, vet, pharmacist or wholesaler Culpability in form of INTENTION is required  Section 5 – Dealing in drugs Conventional meaning of Extended meaning of ‘deal ‘dealing in’ = to buy and sell in’ = performance of any act in connection with : BUT … if X, on a charge of dealing in dagga, is found in Trans-shipment possession of a large quantity Importation of dagga and is unable to give Manufacture a reasonable explanation of Collection such possession – inference Prescription can be drawn that he is dealing in dagga (this follows Acquisition of Supply from application of basic legal drugs by a person Cultivation principles and common sense for his own use, or Administration and does not involve by an agent for a Sale application of any principal’s use, is Transmission presumption of dealing) not dealing Exportation  Unlawfulness may be excluded by Common law Grounds of justification e.g. necessity Grounds of justification e.g. if X acquires / buys drug for medicinal purposes from a medical practitioner, dentist, vet or pharmacist in terms of a written prescription and Statute if X administers it to a patient or animal X must be aware that the substance is a substance as Culpability in form of described in the Act, that his conduct amounts to ‘dealing in’ INTENTION is required the substance and that his conduct is unlawful  Minister of Justice and Constitutional Development v Prince 2019 (1) SACR 14 (CC) The matter arose from three different court proceedings instituted in the High Court which were consolidated by the High Court and heard as one matter as they were all premised on the same basis, that is, that certain sections of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) and the Medicines and Related Substances Control Act 101 of 1965 (Medicines Act) were constitutionally invalid Section 4(b) of the Drugs Act prohibits the use or possession of any dangerous dependence-producing substance or any undesirable dependence-producing substance unless exceptions listed in the provision apply Section 5(b) of the Drugs Act prohibits dealing in any dangerous dependence-producing substance or any undesirable dependence- producing substance unless exceptions listed in the provision apply Section 22A(9)(a)(i) of the Medicines Act read with schedule 7 of the Medicines Act prohibits the acquisition, use, possession, manufacture or supply of cannabis and section 22A(10) of the Medicines Act read with schedule 7 prohibits the sale or administration of cannabis other than for medicinal purposes The High Court declared sections 4(b) and 5(b) of the Drugs Act read with Part III of Schedule 2 to the Drugs Act and sections 22A(9)(a)(i) and 22A(10) of the Medicines Act read with Schedule 7 of the Medicines Act inconsistent with the RIGHT TO PRIVACY guaranteed by section 14 of the Constitution, but only to the extent that they prohibit the use, possession, purchase or cultivation of cannabis by an adult person in a private dwelling for his or her consumption. The High Court suspended the order of invalidity for a period of 24 months from 31 March 2017 to give Parliament the opportunity to cure the constitutional defects in the statutory provisions concerned. It also granted interim relief by ordering that pending the amendment of the relevant legislation by Parliament, it would be deemed to be a defence to a charge under the sections referred to in the order that the use, possession, purchase or cultivation of cannabis in a private dwelling was for the personal consumption of the adult accused. The High Court’s order of constitutional invalidity was then referred to the Constitutional Court for confirmation as required by the Constitution In a unanimous judgment written by Zondo ACJ, as he then was, the Constitutional Court declared that : (a) Section 4(b) of the Drugs Act was unconstitutional and, therefore, invalid to the extent that it prohibits the use or possession of cannabis by an adult in private for that adult’s personal consumption in private; (b) Section 5(b) of the Drugs Act was constitutionally invalid to the extent that it prohibits the cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private; and (c) Section 22A(9)(a)(i) of the Medicines Act was constitutionally invalid to the extent that it renders the use or possession of cannabis by an adult in private for that adult’s personal consumption in private a criminal offence  Constitutional Court Constitutional Court dispensed with the High Court’s held these statutory provisions to be limitation of its order to the use, cultivation CONSTITUTIONALLY or possession of INVALID to the extent indicated because they cannabis “at home or in a private dwelling”. infringed the RIGHT TO PRIVACY entrenched in It held that the right to privacy extends section 14 of the beyond the Constitution boundaries of a home  The effect of the judgment is two-fold 1 2 It decriminalises the It decriminalises the USE OR CULTIVATION of cannabis by an POSSESSION of cannabis by an adult in a PRIVATE PLACE for adult in private for that adult that adult’s personal person’s personal consumption in consumption in private. private However, the use or possession of cannabis by a child anywhere, or by an adult in public, is not decriminalised Zondo ACJ took the view that it should be left to Parliament to decide on the quantity of cannabis that an adult person may use, possess or cultivate for it to amount to “personal use” He was of the view that the Court would infringe the doctrine of separation of powers if it determined the amount itself  As to how a police officer would know whether the amount of cannabis in the possession of an adult is or is not for that adult person’s personal consumption, the ConCourt held that a police officer would have to consider all the circumstances including the quantity of cannabis found in an adult person’s possession. If the police officer, on reasonable grounds, suspects that the person concerned is in possession of that cannabis for dealing and not for personal consumption, the officer may arrest the person, but a court will ultimately decide whether the person was in possession of cannabis with the intent to deal, or for their own personal consumption Wishing you all the best for your final exam. You’ve got this !