Study Guide - Crimes Against Public Welfare (Part 2) PDF

LEARNING UNIT 3: Crimes against public welfare In principle, corruption committed by the giver is only a mirror image of corruption committed by the recipient. To avoid duplication, we will emphasise corruption committed by the recipient in the discussion that follows. In the discussion of this form of the crime, the different requirements of the elements of the crime will be identified and explained. 3.2.6 General crime of corruption: the crime committed by the recipient 3.2.6.1 Elements of the crime The elements of the general crime of corruption by the recipient are the following: (1) the acceptance by Y (the element of an act) (2) of gratification (3) in order to act in a certain way (the inducement) (4) unlawfulness (5) intention Each of these elements will now be discussed. 3.2.6.2 The acceptance (element of an act) The word "accept" has a technical meaning, because it includes a number of other acts that are not normally regarded as synonyms of "accept". The legislature broadens the meaning of "accept" in two ways: The Act also provides (in s 3 (a)) for certain conduct by Y which precedes the acceptance, namely: – to agree to accept a gratification or – to offer to receive satisfies the element of an act. It follows from this provision that, in this crime, no distinction is made between the stem crime (main crime) on the one hand, and conspiracy or incitement to commit the main crime on the other. The Act provides (in s 2(3)(a)) that the words or expressions "accept", "agree to accept" and "offer to accept", as used in the Act, also have the following broader meanings: (1) to demand, ask for, seek, request, solicit, receive or obtain gratification (2) to agree to perform the acts named under (1) (3) to offer to perform the acts named under (1) The following considerations afford Y no defence: (1) The fact that Y did not accept the gratification "directly", but only "indirectly" (s 3). Y does not have to accept the gratification personally. The fact that Y made use of a middleman to accept the gratification affords him no defence. (2) The fact that Y did not in actual fact later perform the act which X had induced him to perform (s 25(c)). If Y had accepted the gratification, but the entire evil scheme had been ex- posed and Y had been arrested by the police before he could fulfil his part of the agreement with X, Y would nevertheless be guilty of the crime. Therefore, the crime has been completed even if Y has not yet done what he undertook to do, expressly or implicitly. (3) The fact that the corrupt activity between X and Y was unsuccessful. This consideration af- fords neither X nor Y a defence. (4) For the purpose of liability, it is irrelevant that the state or the private enterprise concerned with the transaction did not suffer prejudice as a result of X’s or Y's conduct. (5) The fact that Y accepted the gratification, but that he, in actual fact, did not have the power or right to do what X wished him to do, affords neither X nor Y a defence (s 25(a)). Therefore, 39 PART B: CRIMES AGAINST THE COMMUNITY if X gives a gratification to Y in the belief that Y will give him a driver's licence, which he is not entitled to do, as Z rather than Y is empowered to make such a decision, this fact can af- ford neither X nor Y a defence. 3.2.6.3 The gratification The definitions set out in section 1 contain a long definition of the word "gratification". For the purposes of this course, you do not have to be able to quote this long section. You are not expected to know this section. The following are highlighted words or expressions which, according to the legislature, also mean "gratification": (1) money (2) a gift (3) a loan (4) property (5) the avoidance of a loss (6) the avoidance of a penalty (such as a fine) (7) employment, a contract of employment or services (8) any forbearance to demand any money (9) any "favour or advantage of any description" (10) any right or privilege It is evident that "gratification" has a very broad meaning in terms of the Act. It is clear that "gratification" is not limited to tangible or patrimonial benefits. It is suggested that the word "gratification", as used in the Act, is wide enough to include information and even sexual favours (e.g. when a traffic officer, Y, who has caught a woman, X, for a traffic offence, agrees or offers not to prosecute X for her offence if he and X can engage in sexual intercourse with each other (see W 1991 (2) SACR 642 (T)). 3.2.6.4 The element of inducement ("in order to act... in a manner") (a) General Y must accept the gratification in order to act in a certain manner. Stated differently, she must accept the gratification as an inducement to act in a certain manner. In other words, she must have a certain aim or motive in mind with the acceptance. (b) The aims The legislature names a number of aims in considerable detail. We give an abbreviated version of these aims. For the purposes of the examination, it is sufficient to know the abbreviated version. The aims are the following: (1) in order to act in a manner that amounts to the illegal, dishonest, unauthorised, incom- plete, or biased... exercise of any powers, duties or functions arising out of a legal obligation (2) in order to act in a manner which amounts to the misuse or selling of information acquired in the course of the exercise of any duties arising out of a legal obligation (3) in order to act in a manner which amounts to the abuse of a position of authority, the vio- lation of a legal duty or a breach of trust (4) in order to act in a manner designed to achieve an unjustified result (5) in order to act in a manner that amounts to any other improper inducement to do or not to do anything It is clear that these aims are defined broadly and that they cover a very wide field. The fourth aim (to act in a manner to achieve an unjustified result) is formulated so broadly that it includes almost all the other aims. 40 LEARNING UNIT 3: Crimes against public welfare (c) General principles of the aims (1) In each instance, the expression "to act" appears. The legislature provides explicitly that an "act" also includes an omission (s 2(4)). (2) It is irrelevant whether Y plans to achieve this aim personally or whether he plans to achieve this aim by influencing another person to act in such a manner (see the phrase in s 3 be- tween (b) and (i)). Therefore, Y may make use of a middleman to achieve the aim. (3) The aims apply in the alternative. It is sufficient for the state to prove that Y had only one of these aims in mind when he accepted the gratification. (4) It is irrelevant whether Y accepted the gratification for his own benefit or for the benefit of someone else (s 3(a) and (b)). Therefore, the fact that Y receives money from X in a cor- rupt way with the aim of using the money to provide for his sick child affords him no defence. (5) The fact that Y did not in actual fact have the power to act in the manner in which he was induced to act affords Y no defence (s 25(a)). Therefore, if Y receives money from X as an in- ducement to give X a particular licence, but it appears that a person in a higher position in the relevant state department or enterprise is actually empowered to decide who should be issued with licences, Y is still guilty of the crime. 3.2.6.5 Unlawfulness The element of unlawfulness is not expressly provided for in the definition of the crime, but must nevertheless be read into it. Unlawfulness, or, rather, the requirement that the act should be "unjustified", is a requirement or element of all crimes. The general meaning of "unlawful" is "against the good morals or the legal convictions of society". It implies that Y's conduct must not be covered by a ground of justification. The following are examples of conduct which, ostensibly, fall within the ambit of the definitional elements of corruption, but are, nevertheless, not unlawful: (1) An act which would otherwise amount to corruption would most definitely not be unlawful if Y acted under compulsion. (2) A person used as a police trap does not act unlawfully either if he agrees to receive gratifi- cation from another person in order to trap that person into committing corruption (Ganie 1967 (4) SA 203 (N)). (3) It is suggested that certain officials or employees, such as porters or waiters, are not acting unlawfully when they receive small amounts of money from the public as "tips" for services which they performed satisfactorily. Such conduct is socially adequate; it is not against the good morals or legal convictions of the community. (4) The same applies to the receiving of gifts of a reasonable proportion by employees on occa- sions such as marriage or retirement or completion of a "round number", e.g. 20 years, of work. (A "golden handshake" which may involve a substantial amount of money may, de- pending on the circumstances, be a different case.) 3.2.6.6 Intention It cannot be said that the legislature intended to create strict liability. As regards the form of culpability required for this crime, it is clear that intention, and not negligence, is required. Words or expressions such as the following used in the section suppose the requirement of intention: "accept", "agree", "offer", "inducement", "in order to..." and "designed". According to general principles, intention always includes a certain knowledge, namely knowledge of the nature of the act, the presence of the definitional elements and the unlawfulness. Someone has knowledge of a fact not only if he is convinced of its existence, but also if he foresees the possibility of the existence of the fact, but is reckless towards it; in other words, if he is not deterred by the possibility of the existence of the fact and goes ahead with the forbidden conduct regardless. Then his intention is present in the form of dolus eventualis. 41 PART B: CRIMES AGAINST THE COMMUNITY The Act contains a provision which expressly applies the principle (of dolus eventualis) to this crime. Section 2 (1) provides that, for the purposes of the Act, a person is regarded as having knowledge of a fact, not just if the person has actual knowledge of a fact, but also if the court is satisfied that the person believes that there is a reasonable possibility of the existence of that fact and that the person has failed to obtain information to confirm the existence of that fact. This provision is merely an application of the general rule that intention in respect of a circumstance (as opposed to a consequence) can also exist in the form of dolus eventualis; more specifically, that "wilful blindness" amounts to knowledge of a fact and, accordingly, intention. These principles have previously been accepted in our case law. (See Bougarde 1954 (2) SA 5 (C) 7–9 The fact that Y accepted the gratification without intending to perform the act which he was induced to perform, affords Y no defence (s 25 (b)). If Y, who is somebody who can decide to whom a tender should be awarded, receives money from X as inducement to award the tender to X, the fact that Y received the money without having had the intention to actually use his influence in X's favour, and accepted the money only to enrich himself, affords him no defence. 3.2.7 General crime of corruption: corruption by the giver 3.2.7.1 General Corruption by the recipient discussed above deals with acceptance by Y of gratification given by X. Conversely, corruption committed by the giver deals with the giving by X of gratification to Y. Corruption committed by the giver is but only a mirror image of corruption committed by the recipient. Instead of "accept" (which describes Y's conduct in corruption as recipient), the word "give" (which describes X's conduct in corruption by the giver) should be used. Because corruption committed by the giver is but a mirror image of corruption committed by the recipient, it is unnecessary to repeat once again in the discussion of corruption by the giver all the rules dealing with the offence discussed above, namely corruption by the recipient. Therefore, the discussion of corruption by the giver which follows can be summarised very briefly. Except if indicated otherwise, all the principles applicable to corruption committed by the recipient are, mutatis mutandis (in other words, by replacing the word "accept" with the word "give" in each instance), applicable also to corruption committed by the giver. It is more or less just in the requirement of the act that corruption by the giver is structured differently from corruption by the recipient. 3.2.7.2 Elements of the crime The elements of the general crime of corruption are the following: (1) the giving by X to Y (the requirement of an act) (2) of gratification (3) in order to induce Y to act in a certain manner (the element of inducement) (4) unlawfulness (5) intention 3.2.7.3 The giving of gratification The act consists of X giving gratification to Y. The word "gives" has a technical meaning, because, apart from "give" as in the ordinary meaning of the word, other acts are included which are not normally regarded as synonyms of "give". The legislature uses two ways to broaden the meaning of "give": (1) The Act provides (in s 3(b)) that certain conduct by X preceding the giving of the gratifica- tion, namely to merely agree to give gratification or to offer to give it, also satisfies the requirement of an act. (2) The Act provides (in s (3)(b)) that the words "give or agree or offer to give any gratification", as used in the Act, also have the following broader meanings: 42 LEARNING UNIT 3: Crimes against public welfare to promise, lend, grant, confer or procure the gratification to agree to lend, grant, confer or procure the gratification to offer to lend, grant, confer or procure such gratification It is not a requirement for the offence committed by the giver that X should have succeeded with his plan of action. Therefore, considerations such as the following afford X no defence: the fact that Y, although he may have given the impression that he would accept the offer, in actual fact had no intention of doing what X had asked him to do (s 25(b)) the fact that Y did not do what X requested him to do (s 25(c)) the fact that Y did not have the power to do what he was requested to do (s 25(a)) the fact that Y rejected X's offer the fact that Y agreed, but subsequently changed his mind the fact that Y found it impossible to do what he had undertaken to do 3.2.7.4 The gratification This requirement is the same as the corresponding requirement for corruption committed by the recipient and has already been set out above in the discussion on that form of corruption. Corruption. The giving and receiving of a gratification in order to act in a certain manner. 3.2.7.5 In order to act in a certain manner (the element of inducement) This requirement is the same as the corresponding requirement for corruption committed by the recipient. The wording of the section dealing with this element of corruption committed by the giver is not very lucid, but it is nevertheless clear that the legislature intended to say: "[a]nyone who... gives any gratification... in order to induce the recipient to act... in a manner that...". The words printed in italics, which express the meaning of the provision more clearly, do not appear in the text of the section, but are implied. In Shaik 2007 (1) SACR 142 (D) and 2007 (1) SACR 247 (SCA), the accused was convicted of corruption in terms of the predecessor of section 3 of Act 12 of 2004 (s 1 of the Corruption Act 94 of 1992). There is no substantial difference between the wording of the previous section and that 43 PART B: CRIMES AGAINST THE COMMUNITY of the current section 3 of Act 12 of 2004. The elements of the previous offence (s1 (1) (a) (i)), in relevant part, were: (i) the giving (includes offer to give and agree to give) (ii) of a benefit that is not legally due (iii) to a person who is vested with the carrying out of any duty, by virtue of her holding of an of- fice, etc. (iv) with the aim of influencing that person to do an act (or omit to do some act) in the perform- ance of that duty (v) unlawfulness (vi) intention X was charged on two counts of contravening the Act in that, from October 1995 to September 2002, he had made numerous payments to Y with the object of inducing the latter to use his (Y's) name or political influence in favour of X's businesses, or as a reward for having done so. It was also alleged that X was party to an agreement in terms of which a French arms company would pay R500 000 a year to Y, in return for Y's involvement in shielding the French company from a probe into aspects of an arms deal and later promotion of the company's business interests in South Africa. There was no dispute about the actual payments made by X to Y. The only issue that arose was whether or not these payments were made by X with the intention of influencing Y to use the weight of his political office (he was the MEC for Economic Affairs in KZN and deputy president of the ANC) to protect or further X's business interests. The court found on the facts that there were several instances in which Y had intervened to protect, assist or further the interests of X's business enterprises and concluded that these showed both a readiness on X's part to turn to Y for help in his business affairs, and Y's willingness to give it. The court concluded that the payments were made by X with the intention of influencing Y to act in X's interests. They were made at a time when X's businesses could not afford to issue such payments owing to their financial position. Since Y could not repay the money, he could only satisfy the sense of obligation placed upon him by the payments by using his name and political office. Also, X blatantly advertised his association with Y to his business partners, being confident of the political support he would gain from the latter. The payments could also not be regarded as loans, because the arrangements surrounding them were too flexible and made no business sense from the point of view of a lender. The court found that the arrangement was prima facie contrary to the good morals or legal convictions of society and that there was no justification (i.e. that the requirement of unlawfulness was satisfied). X had also foreseen the possibility that Y would feel obligated, through these payments, to help him in his businesses, and continued to make these payments, aware that Y would respond this way. He therefore was found to have had intention in the form of dolus eventualis. X was convicted on both counts of corruption (and one of fraud) and appealed to the Supreme Court of Appeal (SCA). It dismissed his appeals on all counts and confirmed his conviction. 3.2.7.6 Unlawfulness This requirement is the same as the corresponding requirement for corruption committed by the recipient, and has already been discussed above. 3.2.7.7 Intention This requirement is the same as the corresponding requirement for corruption committed by the recipient, and has already been discussed above. 44 LEARNING UNIT 3: Crimes against public welfare 3.2.8 Corruption relating to specific persons From section 4 onwards, "corrupt activities relating to specific persons" are criminalised. As already mentioned, it is impossible to discuss in detail each of the specific offences created from section 4 onwards. Considerable parts of the definitions of these crimes ― in particular the "element of inducement", that is, the part of the definition that starts with the words "in order to act... in a manner" – are worded exactly the same as the general crime of corruption in section 3, which has already been discussed in some detail above. We will just give a brief overview of some of these specific offences. (1) Corruption relating to public officials. Section 4 creates an offence limited to corruption of public officials. "Public officials" is defined exhaustively in section 1. A typical example of such an official is a state official such as a police officer. In S v Selebi 2012 (1) SACR 209 (SCA), the former National Commissioner of Police and former Head of Interpol was convicted for corruption in contravention of section 4 (1) (a) of the Prevention and Combating of Corrupt Activities Act 12 of 2004. The provisions of section 4 (1)(a) are exactly the same as the general offence of corruption (set out in s 3(1)(a) above), except for the use of the words at the beginning of the section, namely "Any public officer …." instead of "Any person ….". In issue in the appeal were two matters: whether Selebi had received payment from a person (Agliotti) and whether he had provided Agliotti with any quid pro quo (a favour given in return for another) as a result of such payment as required in terms of section 4 of the Act. The court explained that the question whether Selebi received payments and/or other benefits "requires a consideration of whether he received such gratification with a corrupt intention" (at para 6). The indictment alleged that at the relevant time a corrupt relationship existed between Selebi and Agliotti and that Selebi had received sums of money and clothing from Agliotti. It was also alleged that Selebi had received the payment in order to act in a manner as set out in section 4(1)(a)(i) – (iv) of the Act and that Selebi did so act by way of quid pro quo. The details in the indictment were that Selebi had, inter alia, shared secret information with Agliotti with regard to investigations conducted against him (Agliotti) in the United Kingdom and also in South Africa, and protected him from criminal investigation. 45 PART B: CRIMES AGAINST THE COMMUNITY In his judgment, Mthiyane DP pointed out (at para 8) that the facts pertain to the general crime of corruption committed by a recipient and that the essential elements of this offence as set out in section 4(1)(a) of the PCCA Act are: (1) the acceptance of (2) gratification (3) in order to act in a certain way (the inducement) (4) unlawfully and (5) intentionally. Whereas the first element is self-explanatory, the second element is elucidated in section 1 of the Act itself and includes "money whether in cash or otherwise". The element of "inducement" depends on whether the receipt of the gratification is directed at procuring the recipient to act in one or more of the ways set out in section 4(1)(a)(i) – (iv), which include the abuse of a position of authority (s 4 (1) (ii) (aa)). The elements of unlawfulness and intention are not expressly set out in the specific provision, but the court held that it should be construed as requiring these elements (at para 9). The court then considered the question whether the State had succeeded in proving beyond reasonable doubt that the payments were received from Agliotti and any quid pro quo was given by Selebi with the requisite mens rea. Mthiyane DP reiterated that intention is not specifically referred to, but that the words "in order to act..." in s 4 (1) (a) (i) of the PCCA Act "import some 'intention' element". He also pointed out that section 24 of the Act makes it easier for the State to prove the element of intention. The section provides that once the prosecution has been able to show that, despite having taken reasonable steps, it could not link the acceptance of the gratification to a lawful authority or excuse on the part of the person charged, and in the absence of evidence to the contrary which raises reasonable doubt, it is sufficient evidence that the person accepted such gratification "in order to act" in a manner envisaged. But the Supreme Court of Appeal did not find it necessary to invoke the presumption. It concluded that once it had been proved that Selebi had received payments from Agliotti, "the inference was irresistible that it was for an illegal purpose and with knowledge of that illegal purpose" (at para 42). The court concluded that the trial court was justified in convicting the appellant of corruption as charged because it had succeeded in establishing that the payments had been accepted by Selebi with the requisite corrupt intention. The judgment of Mthiyane DP did not address the issue whether a quid pro quo is in fact required for the crime of corruption to have been committed in terms of section 4 (1)(a) of the Act. In her separate judgment, Snyders JA (Leach JA concurring) focused specifically on this issue. She pointed out that the factual findings and conviction of the trial court consisted of an acceptance of a gratification on the one hand, and the giving of a quid pro quo by the appellant on the other hand on the basis of an inferred agreement between Selebi and Agliotti. However, in her view, this does not mean that section 4 of the Act requires an agreement between the corruptor and the corruptee or that it requires a quid pro quo from the corruptee. Snyders JA emphasised at paragraph 97: "It must be plainly understood that the conviction, in this case on the evidence that established an agreement and the giving of a quid pro quo, is not the low-water mark of the section." She pointed out that section 25 supports her wide interpretation of section 4. Section 25 of the PCCA provides, inter alia, that whenever an accused person is charged with an offence (including a contravention of s 4), it is not a valid defence for that accused person to contend, inter alia, that he or she did not have the power, or did not intend, or failed to perform the act in relation to which the gratification was given, accepted or offered (s 25(a) – (c)). We submit that the judgment of Snyders JA on this point is correct. (2) Corruption in relation to agents. Section 6 creates an offence limited to corruption of agents. Corruption committed by businesspeople in the private sector is criminalised in this section. (3) Corruption in relation to members of the legislative authority. See section 7. (4) Corruption in relation to judicial officers. Section 8 creates a crime limited to the corruption of judicial officers. The expression "judicial officer" is defined in section 1 and includes judges and magistrates. The conduct which the judicial officer is induced to perform is also further defined in section 8(2). A typical example of this form of corruption is where someone gives a judge money or offers him money, in order to persuade him to give a judgment in favour of a certain party – conduct on the part of the judge that amounts to him not giving a 46 LEARNING UNIT 3: Crimes against public welfare judgment according to objective evaluation on the merits of the facts before the court. If someone corrupts a judicial officer, the conduct can also be punished as contempt of court. (5) Corruption relating to members of the prosecuting authority. Section 9 creates an offence limited to corruption of the members of the prosecuting authority. The act that Y is induced to perform is further defined. An example of a case resorting under this heading is when X gives Y, the prosecutor in a criminal case, money in order to persuade Y to destroy or hide the docket in which the particulars of the prosecution's case are contained. Subsequently, if the docket is reported missing, the prosecution will not be successful. The type of conduct criminalised under this heading can overlap with the common-law offence of defeating or obstructing the course of justice. (6) Receiving or offering of unauthorised gratification by a party to an employment relationship. Section 10 creates an offence which is limited to corruption committed in an employment relationship. If an employer, for instance, accepts a gratification as inducement to promote one of her employees, she can be charged with a contravention of this section. (7) Corruption relating to procuring of tenders. Section 13 creates an offence limited to corruption committed in order to procure a tender. An example in this context is where X gives an amount of money to Y, whose task it is to decide to whom a tender should be awarded, in order to persuade Y to accept X's tender. (8) Corruption relating to sporting events. Section 15 creates an offence limited to corruption committed in the context of sporting events. Someone who accepts or gives money in order to undermine the integrity of any sporting event contravenes this section. The word "sport- ing event" is further defined in section 1. An example here is when X, who bets money on the outcome of sporting events, gives money to Y, who is a sportsman or sportswoman or a referee, in order to persuade Y to manipulate the game in such a way that the match has a certain outcome. 3.2.9 Failure to report corrupt acts Section 34 creates an important crime which consists of a failure by a person in a position of authority, who knows, or ought reasonably to have known, that certain crimes named in the Act have been committed, to report an offence created in the Act to a police officer. Subsection (4) gives a long list of persons who are regarded as people who hold a position of authority. It includes any partner in a partnership and any person who is responsible for the overall management and control of the business of an employer. The form of culpability required is either intention or negligence (as a result of the use of the words "who knows or ought reasonably to have known"). In interpreting the word "knows", the expanded meaning given to the word "knowledge" in section 2 should be kept in mind: apart from actual knowledge, it also includes the case where a person believed that a fact existed, but then failed to obtain information to confirm the existence of that fact ("wilful blindness"). 3.3 EXTORTION (Criminal Law 417–419) 3.3.1 Definition Extortion is the unlawful and intentional acquisition of a benefit from some other person by ap- plying pressure to that person which induces her to part with the benefit. 3.3.2 Elements of the crime The elements of this crime are: (1) the acquisition of (2) a benefit 47 PART B: CRIMES AGAINST THE COMMUNITY (3) by applying pressure (4) a causal link (between the pressure and the acquisition of a benefit) (5) unlawfulness (6) intention 3.3.3 The perpetrator In Roman and Roman-Dutch law, this crime was known as concussio, and, according to some of our old authorities, could only be committed by a public official. In G 1938 AD 246, the Appellate Division held that the crime could be committed by any person and not only an official; X need not even represent herself as an official. 3.3.4 Exertion of pressure X must acquire the benefit by bringing pressure to bear on Y; Y must give way under the stress of the pressure. The pressure may take the form of threats, the inspiring of fear, or intimidation. Where there is a threat of physical injury to Y himself, extortion and robbery overlap (Ex Parte Minister of Justice: In re R v Gesa, R v De Jongh1959 (1) SA 234 (A) 240). Y may also be threatened with defamation; dismissal from his employment; or arrest and prosecution. Even a threat couched in negative terms is sufficient, for example where X threatens not to return something he borrowed (Mntonintshi 1970 (2) SA 443 (E)). The threat may also take the form of harm to a third person, for example, where a threat of prosecution is made to Y's wife. The threat may be either explicit or implicit. 3.3.5 The benefit Before 1989, there were conflicting decisions on the question whether or not the benefit in extortion should be limited to patrimonial benefit. "Patrimonial" in this connection means "which can be converted into or expressed in terms of money or economic value". In Ex parte Minister van Justisie: In re S v J en S v Von Molendorff 1989 (4) SA 1028 (A), the Appellate Division thoroughly analysed this question and, after an extensive investigation of the common-law authorities, held that the benefit in this crime must be limited to a patrimonial one. However, the state was obviously not satisfied with this judgment, because, shortly afterwards, the legislature enacted the following provision in section 1 of the General Law Amendment Act 139 of 1992: At criminal proceedings at which an accused is charged with extortion it shall with respect to the object of the extortion be sufficient to prove that any advantage was extorted, whether or not such advantage was of a patrimonial nature. Thus, according to the present state of our law, any advantage or benefit – patrimonial or non- patrimonial – can be extorted. An example of a benefit that is not of a patrimonial nature, but can nevertheless lead to a conviction of extortion, is the following type of "benefit" which figured in the case of J 1980 (4) SA 113 (E). In this case, Y was threatened by X that, unless she had sexual intercourse with him, he would show photographs of her in the nude to her parents. The Court found X guilty of attempted extortion, as it was of the opinion that the benefit in extortion need not be of a patrimonial or financial nature. The "benefit" which X sought to obtain in this case was sexual satisfaction. The crime will not have been completed until the benefit has been handed to X. 48 LEARNING UNIT 3: Crimes against public welfare 3.3.6 Causation Just as in the case of robbery where a causal connection between the violence and the acquisition of the thing must exist, so, too, in the case of extortion there must be a causal connection between the application of pressure and the acquisition of the thing. If the benefit is handed over not because of pressure exerted by X, but because a trap has been set for X and Y wishes her to be apprehended, the crime is merely attempted extortion. Please note the importance of a causal link in this crime. You need to mention this causal link between the application of pressure and the acquisition of the benefit when discussing the crime of extortion. 3.3.7 Unlawfulness The pressure or intimidation must have been exerted unlawfully. However, this does not imply that, if Y is threatened with something which X is entitled or empowered to do, the threat can never be sufficient for extortion. The correct approach advocated by the courts is to note the way in which X exercised the pressure and what he intended thereby. Although it is perfectly in order for a police official to inform an accused that he intends prosecuting him, it is both irregular and unlawful for the police official to state that he will prosecute the accused unless he pays him a sum of money. 3.3.8 Intention Intent is required. X must intend his words as a threat or intend that they should give rise to fear. He must have the intention of acquiring the benefit, while fully realising that he is not entitled to it. His motive is totally irrelevant. ACTIVITY Consider whether the crime of extortion was committed by X in the following instances: (1) X threatens to sue Y if he does not pay back the money he owes him. Y does in fact owe X the money and has failed to pay his debt for a considerable time, despite demands by X. Y, afraid of the legal costs that he may incur, im- mediately pays his debts to X. (2) X tells Y that he will hire somebody to break into his house and steal his property if he does not pay back the money he owes him. Y, feeling afraid, pays him immediately. (3) X is Y's boss at work. He tells Y that she will not get promotion unless she has sexual intercourse with him. Y refuses and lays a charge with the police. FEEDBACK (1) X cannot be convicted of extortion, since his conduct is not unlawful. It is not against the legal convictions of society to obtain a perfectly legitimate ad- vantage (payment of a debt) by means of a threat of legal action. (2) X can be convicted of extortion. It is undoubtedly against the legal convic- tions of society to use this type of pressure (i.e. to threaten to hire somebody to break into someone else's house and violate his property rights) to obtain a benefit. Although the benefit obtained is legitimate, the illegitimate pres- sure used to obtain the benefit makes X's conduct unlawful. 49 PART B: CRIMES AGAINST THE COMMUNITY (3) X may only be convicted of attempted extortion. Extortion is a materially de- fined crime. This means that there must be a causal link between the pressure and the acquisition of the benefit, and that the crime is not com- pleted unless the perpetrator has received the benefit. Because X has not as yet obtained the "advantage", he may not be convicted of the completed crime, but only of an attempt to commit extortion. 3.4 DRUG OFFENCES (Criminal Law 420–426) 3.4.1 General The most important offences relating to drugs are found in the Drugs and Drug Trafficking Act 140 of 1992 (hereinafter called "the Act"). We will focus only on the two most prevalent offences: (1) the use or possession of drugs (2) dealing in drugs The Act divides drugs into three categories, namely (1) dependence-producing substances (2) dangerous dependence-producing substances (3) undesirable dependence-producing substances The drugs or substances falling under each of these categories are listed in great detail in schedule 2 of the Act. The punishment prescribed for the possession of, use of or for dealing in the substances listed under (2) and (3) is more severe than the punishment prescribed for the possession of, use of or for dealing in the substances listed under (1). Substances listed under (2) are, for instance, coca leaf, morphine and opium. Among the substances listed under (3) are cannabis (dagga), heroin and Mandrax. Although it may be difficult to memorise the three types of drugs, please remem- ber that all three are dependence-producing substances (something which makes you become reliant or hooked on it). The second type of drugs is more serious than the first, as it is dangerous, while the third type is even more severe than the first two as it is undesirable. Similarly, dealing in drugs is a more serious offence than possessing or using drugs. It is important to note, though, that "possession" and "use" are not treated in the Act as two separate offences, but as one single offence. 3.4.2 The use or possession of drugs 3.4.2.1 Definition It is an offence for any person unlawfully and intentionally to use or have in her possession any dependence-producing substance or any dangerous dependence-producing substance or any undesirable dependence-producing substance (s 4 of the Act). 3.4.2.2 Elements of the offence The elements of this offence are: (1) the act, that is possession or use of (2) a drug as described in the Act (3) unlawfulness (4) intention 50 LEARNING UNIT 3: Crimes against public welfare 3.4.2.3 The act – possession or use (a) Use The word "use" is self-explanatory. Clearly, the smoking, inhalation, injection or ingestion of drugs will amount to use of the drug. It is not clear why the legislature prescribed not only the possession but also the use of drugs, since any instance of use of a drug also involves its possession and, as such, amounts to an offence under the Act. It is probably for this reason that, in practice, it seldom happens that X is accused only of using a drug. (b) Possession (i) General meaning of "possession" In law, possession consists of two elements, namely: a physical or corporeal element (referred to as corpus or detentio) a mental element, that is, X's intention (the animus) The physical element consists in an appropriate degree of physical control over the thing. The precise degree of control required depends upon the nature of the article and the way in which control is ordinarily exercised over such a type of article. The control may be actual or constructive. Constructive control means control through somebody else, such as a representative or servant (Singiswa 1981 (4) SA 403 (C)). The mental element (animus) of possession relates to the intention with which somebody exercises control over an article. In this respect, there may be more than one possibility: X may exercise control over the article as if he is the owner of the article. This type of posses- sion is possession in the ordinary juridical meaning of the term. It is also known as possessio civilis. This is the narrow meaning of possession. X may exercise control over the article with the intention of keeping it for somebody else. This type of possession is known as possessio naturalis. This is the broader type of possession. (ii) Meaning of "possession" in the Act In various Acts, the legislature has created crimes penalising the possession of certain types of articles, such as drugs, unlicensed firearms, stolen goods, dangerous weapons or housebreaking implements. The meaning of the word "possession" may vary between the different Acts, depending upon the intention of the legislature. What is the meaning of the word "possession" in the present Act? Section 1 of the Act provides that the word "possess" as used in the Act includes: keeping storing or having in custody or under control or supervision Although it is not expressly stated in the section, this provision is wide enough to cover situations in which a person has the custody over an article not in order to use it himself, but on behalf of somebody else, such as where he looks after it for somebody else. It follows that the meaning of this important provision is the following: The use of the word "includes" in section 1 means that the meaning ascribed to "possession" in this section (i. e. keeping, storing, etc) is not the only meaning that the word can have in the Act. Apart from the meaning ascribed to the word in section 1, the word also has another meaning. This other meaning can be nothing else than possessio naturalis described above. From this it follows that, if the state charges X with having possessed a drug, there are two ways in which the state may prove the element of possession. 51 PART B: CRIMES AGAINST THE COMMUNITY The first is by proving that X exercised control over the drug as an owner, that is, for himself, as opposed to exercising control over the drug on behalf of somebody else. This type of pos- session (i.e. possession as an owner) is possessio civilis. The second way of proving possession is by proving that, although X did not exercise control over it as an owner (i.e. to use it for himself), he nevertheless kept it for or on behalf of some- body else. This type of possession is possessio naturalis – the extended or broad meaning of the term. ACTIVITY Z possesses a quantity of Mandrax tablets. He goes to his friend, X, and asks X whether he may leave the Mandrax tablets in X's care while he (Z) goes overseas, because he is afraid that the police might find the tablets in his (Z's) house while he is away. X agrees. X and Z place the tablets in a box under the floorboards of X's house. While Z is overseas, the police search X's house and find the Mandrax tablets. X is charged with having possessed the tablets. Her defence is that she never intended to use the tablets herself, but only allowed Z to store the tablets temporarily in her (X's) house. Can X be convicted of having possessed the tablets? FEEDBACK X can be convicted of having possessed the tablets. The fact that she did not intend to use the tablets herself but was only looking after them temporarily on Z's behalf does not afford her a defence. The term "possession" as used in the Act is not confined to possessio civilis (possession as an owner), but includes possessio naturalis. The latter type of possession refers to possession or the exercising of control over the article on behalf of somebody else. (iii) Prohibition upon use or possession of dagga declared unconstitutional In Prince v Minister of Justice and Constitutional Development and Others (Western Cape Division, Cape Town) Case No: 8760/2013, the court considered the constitutionality of the prohibition on the use of cannabis and the possession, purchase of cultivation thereof for personal or communal consumption. The key sections which were the subject of this dispute were sections 4 (b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) and section 22A of the Medicines and Related Substances Act 101 of 1965 (Medicines Act). In essence, section 4(b) of the Drugs Act provides that no person shall use or have in his possession any dangerous dependence- producing substance or any undesirable dependence-producing substance unless he is a patient who has acquired or bought any such substance in a lawful manner, as specifically provided for in the Act. Cannabis is listed as such a substance under Schedule 7 of the Medicines Control Council: Schedules. Section 22A (9) (a) (i) of the Medicines Act prohibits the acquisition, use, possession, manufacture or supply of cannabis. Subsection (10) provides an overriding prohibition on the sale or administration of cannabis other than for medicinal business. The applicants applied to the court that these sections be declared invalid on the grounds that the criminal prohibition on the use and possession of cannabis in their own homes and "properly designated places" was unconstitutional (para ). In particular, they contended that, pursuant to the impugned legislation, fundamental rights such as equality, dignity and freedom of religion and most importantly, the right to privacy were breached (para ). After considering all the evidence, the court found that the respondents did not provide credible evidence about the uniquely harmful effects of dagga. The respondents did not prove that the criminalisation of cannabis served an important purpose and that there was no way to achieve this purpose other than to criminalise the use and possession of dagga. Davis J concluded that: “The evidence as set out in this judgment supports the argument that the legislative response to the personal 52 LEARNING UNIT 3: Crimes against public welfare consumption and use (of dagga) is disproportionate to the social problems caused as a result thereof” ([para 102]). The court declared the disputed provisions (sections 4(b) and 5(b) of the Drugs Act read with Part Ill of Schedule 2 to the Drugs Act; and section 22A(9)(a)(i) of the Medicines Act and section 22A(10) thereof read with schedule 7 of GN R509 of 2003, published in terms of section 22A (2) of the Medicines Act) inconsistent with the Constitution of the Republic of South Africa 108 of 1996 and invalid, only to the extent that they prohibit the use of cannabis by an adult in a private dwelling where the possession, purchase or cultivation of cannabis is for personal consumption by an adult. The declaration of invalidity was, however, suspended for a period of 24 months to allow Parliament to correct the defects in the legislation, as envisaged in this judgment. It was declared further that until Parliament has made the amendments contemplated by the court, or the period of suspension has expired, it would be considered a defence to a charge under the relevant provisions that the possession or cultivation of cannabis in a private dwelling is for the personal consumption of the adult accused. In Minister of Justice and Constitutional Development and Others v Prince CCT108/17 ZACC 30, the Constitutional Court held in a unanimous judgment 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 (which is a violation of section 14 of the Constitution); (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 ren- ders the use or possession of cannabis by an adult in private for that adult’s personal consumption in private a criminal offence. The Constitutional Court disputed the High Court’s limitation of its order to the use, cultivation or possession of cannabis “at home or in a private dwelling”. It held that the right to privacy extends beyond the boundaries of a home. The effect of the judgment is two-fold: (a) it decriminalises the use or possession of cannabis by an adult in private for that adult person’s personal consumption in private; and (b) it decriminalises the cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private. However, the use or possession of cannabis by a child anywhere, or by an adult in public, is not decriminalised. 3.4.2.4 The drug As indicated above, the offence is committed if what is possessed or used is a dependence- producing substance, a dangerous dependence-producing substance or an undesirable dependence-producing substance. 3.4.2.5 Unlawfulness Unlawfulness may be excluded, for example, by necessity. However, quite apart from grounds of justification flowing from general principles, section 4 of the Act explicitly mentions a number of grounds of justification for the purposes of this offence. These are, inter alia, that X was a – patient who acquired or bought the drug from a medical practitioner, dentist, veterinarian or pharmacist, or medical practitioner, dentist, veterinarian, pharmacist or wholesale dealer in pharmaceutical products who bought or collected the drugs in accordance with the Medicines and Related Sub- stances Act 101 of 1965. 53 PART B: CRIMES AGAINST THE COMMUNITY 3.4.2.6 Intention Culpability in the form of intention is required for this offence. Thus, a person who was unaware that dagga was in her possession cannot be found guilty of the offence. 3.4.3 Dealing in drugs (Criminal Law 423–426) 3.4.3.1 Definition It is an offence unlawfully and intentionally to deal in any dependence-producing substance or any dangerous dependence-producing substance or in any undesirable dependence-producing substance (s 5(b) and 13(f) of the Act). 3.4.3.2 Elements of the offence The elements of this offence are: (1) the act (that is, to deal in) (2) the drug as described in the Act (3) unlawfulness (4) intention 3.4.3.3 The act – dealing in In creating the offence of dealing in drugs, the legislature was not so much concerned with punishing those who use drugs as punishing those who make drugs available to users. In order to suppress the supply of drugs to users, the legislature has prohibited not merely the sale of drugs, but also all aspects of the production, manufacture, distribution and provision of drugs. In terms of section 1 of the Act, to "deal in" drugs is defined as including the performance of any act in connection with the: transshipment importation cultivation collection manufacture supply prescription administration sale transmission or exportation of drugs In Solomon 1986 (3) SA 705 (A), the Appellate Division held that it was not the legislature's intention that a person who purchases drugs for his own use thereby performs an act in respect of the "sale" or "supply" of drugs within the extended meaning of the definition of "dealing". The Court explained that the legislature, by creating the different offences of "dealing" and "possession or use", intended to distinguish between activities relating to the furnishing of drugs activities relating to the acquisition of drugs The Court found that the legislature intended to punish activities in furnishing drugs as "dealing in" drugs and that it did not intend activities in acquiring drugs to be regarded as "dealing in" drugs, but only as being in possession of the drugs. More particularly, the Court held 54 LEARNING UNIT 3: Crimes against public welfare that, if X commits an act which consists merely in him obtaining the drug for his own personal use, he can only be convicted of possession or use of the drug, and not of dealing in the drug. This means, further, that a person (X) who acts as an agent for somebody else (Z), and who purchases drugs for Z's own use, performs an act in connection with the acquisition of drugs and not an act relating to the supply or furnishing of the drugs. If somebody like X in this example is found in possession, he can only be convicted of the offence of "possession or use" (as opposed to "dealing in drugs") (Solomon supra 710; Jackson 1990 (2) SACR 505 (E)). Keep in mind, however, that a person who purchases drugs for the purpose of selling them, can be held to be dealing in the drugs, since he will possess drugs "for purposes of sale". Previously, there was also a third way in which "dealing" could be proved, namely by relying on a number of presumptions created in the Act. For instance, the Act provided that anyone found in possession of prohibited or dangerous drugs, or dagga exceeding 115 grams, was presumed to have dealt in the drug or dagga. The onus was then on the accused to prove that he had not dealt in the drug. These, and other provisions which created presumptions, were declared unconstitutional on the ground that they were inconsistent with the accused's constitutional right to be presumed innocent until proven guilty (see Bhulwana; Gwadiso 1995 SACR 748 (CC); Julies 1996 (2) SACR 108 (CC); Ntsele 1997 (2) SACR 740 (CC); and Mjezu 1996 (2) SACR 594 (NC)). Note, however, that the fact that certain statutory presumptions have fallen away does not mean that basic legal principles and a common-sense approach to proving guilt have also been abandoned. Our courts have held that where a person has been found in possession of large quantities of dagga and he has been unable to furnish a reasonably acceptable explanation for such possession, there might nevertheless be sufficient circumstantial evidence to conclude that he has also been dealing in the drugs (see Bhulwana; S v Gwadiso supra 796G-H; and Sixaxeni 1994 (2) SACR 451 (C) at 455g-j). In Mathe 1998 (2) SACR 225 (O), the police found X alone in a motor vehicle which contained approximately 131 kilograms of dagga. Because he failed to give an explanation for his possession of the dagga, and raised a "spurious" defence in the trial court, his conviction of possession was replaced on appeal by a conviction of dealing in dagga. 3.4.3.4 The drug As in the case of possession, the offence is committed if what is dealt in is either a dependence- producing substance or a dangerous or undesirable dependence-producing substance, as these terms are defined in the Act. 3.4.3.5 Unlawfulness Unlawfulness may be excluded by, for example, necessity in the form of coercion. However, quite apart from grounds of justification flowing from general principles, section 5 of the Act also explicitly mentions a number of grounds of justification relating to this offence. These are, inter alia, that X: has acquired or bought the particular substance for medicinal purposes from a medical practi- tioner, veterinarian or dentist, or from a pharmacist in terms of a written prescription is a medical practitioner, dentist or pharmacist who prescribes, administers, acquires, imports or sells the substance in accordance with legislation 3.4.3.6 Intention Culpability in the form of intention is required for this offence. X must know that the substance is a substance described in the Act, that his conduct amounts to dealing and that it is unlawful. 55 PART B: CRIMES AGAINST THE COMMUNITY 3.5 UNLAWFUL POSSESSION OF FIREARMS OR AMMUNITION (Criminal Law 426-431) 3.5.1 General The Firearms Control Act 60 of 2000 (hereafter called "the Act") regulates the control of firearms and ammunition and creates a number of offences relating to, inter alia, the unlawful possession of firearms and ammunition. The Act distinguishes between a "firearm" and a "prohibited firearm". Whereas a firearm is a lethal weapon, the arms and devices falling under the heading of "prohibited firearm" are even more ominous and destructive, amounting to what may be described as weapons of war, such as a cannon and a rocket launcher. Whereas a firearm can be licensed, a prohibited firearm cannot (barring a few exceptions) be licensed. A heavier sentence (namely a maximum of 25 years' imprisonment) is prescribed for the offence of possessing a prohibited firearm than for the possession of a firearm which is not a prohibited firearm. (The maximum sentence for the latter offence is 15 years' imprisonment.) For the purposes of our present study, we shall only consider the unlawful possession of a "firearm" (as opposed to a "prohibited firearm"). A gun owner is obliged to renew his gun licence before the licence expires. If this is not done, he has committed a criminal offence and is subject to penalties. This was confirmed by the Constitutional Court in the case of Minister of Safety and Security v SA Hunters and Game Conservation Association (CCT177/17) ZACC 14, where it was ruled that sections 24 and 28 of the Firearms Control Act, under which gun owners must renew their firearm licences or forfeit guns for which licences have expired to the state, are constitutional. 3.5.2 Unlawful possession of a firearm Any person who possesses a firearm without a licence, permit or authorisation issued in terms of the Act for that firearm, commits an offence (s 3 of the Act). The elements of this offence are as follows: (1) the possession of (2) a firearm (3) unlawfulness (4) culpability 3.5.2.1 Possession The word "possess" is not defined in the Act. In the previous Act, which dealt with arms and ammunition (and which was replaced by the present Act), the word "possession" was defined as including custody. Accordingly, under the previous Act, the word "possession" referred to physical control over the arm with the intention of possessing it: either as if the possessor were the owner (possessio civilis) or merely to keep or guard it on behalf of, or for the benefit of, somebody else (possessio naturalis) It is submitted that, considering the purpose of the Act set out in the preamble, the meaning which the term had in the previous Act still applies to the term as used in the present Act. This means that even possession by a person who merely keeps or guards the firearm temporarily for or on behalf of somebody else (possessio naturalis) is punishable. 56 LEARNING UNIT 3: Crimes against public welfare 3.5.2.2 Firearm Section 1 gives a very long, technical definition of the word "firearm". For the purpose of our present study, it is not necessary to know this definition. It is sufficient merely to know what may be described as the gist of the definition, namely "any device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant", and to keep in mind that this definition includes the barrel or frame of the device. 3.5.2.3 Unlawfulness The possession must be unlawful, that is, not covered by a ground of justification such as necessity. In terms of section 3, the crime is not committed by somebody who holds a licence, permit or authorisation issued in terms of the Act for the firearm. Official institutions, such as the South African National Defence Force, the South African Police Service and the Department of Correctional Services, are exempt from the prohibition of possession of firearms. 3.5.2.4 Culpability The legislature does not specify whether intention or negligence is required for liability. If X had the intention, she would certainly be guilty. In Majikazana 2012 (2) SACR 107 (SCA), the court pointed out that if the state avers (or states) that the accused intentionally possessed a firearm without a licence, the state must also prove that the accused had knowledge of unlawfulness (para 22). Therefore, if there is a reasonable possibility that the accused believed that he was holding the weapon innocently, he should receive the benefit of the doubt. This case dealt with the provisions of the previous Act (Arms and Ammunition Act 75 of 1969). However, this ruling is also valid with regard to the new Act. In Kwanda 2013 (1) SACR 137 (SCA), X was a driver of a vehicle that was conveying him and two others to rob a bank. A man carrying an AK47 rifle and ammunition was seated next to him. They were arrested before the robbery could be carried out. The question before the court was whether X could be convicted of unlawful possession of a firearm in terms of the provisions of the Arms and Ammunition Act 75 of 1969. There was insufficient evidence before the court to indicate that X was aware of the firearm in his companion’s possession. The court ruled that even if it were accepted that X had conspired with his companions to commit robbery, and that he was aware that some of his co-accused possessed firearms for the purpose of committing the robbery, such knowledge on his part was not sufficient to support the inference that he had the intention of jointly possessing the firearm (para 6). The court explained that such an inference can only be drawn if the state has established facts from which it can properly be inferred by a court that the group had the intention of exercising possession of the guns through the actual detentor(s) and the actual detentors had the intention of holding the guns on behalf of the group. (Note that this ruling is also valid in respect of the interpretation of the provisions of the new Act). The question also arises whether a person can be convicted if the form of culpability proved against him is not intention, but merely negligence. Under the previous Act, which dealt with this matter, proof of negligence was sufficient for a conviction, and it is submitted that the same should apply under the present Act. It is well known that the unlawful possession of firearms is one of the greatest evils besetting South African society and that the legislature's intention was clearly to spread the net against the unlawful possession of firearms as widely as possible. 57 PART B: CRIMES AGAINST THE COMMUNITY 3.5.3 Unlawful possession of ammunition Section 90 provides that no person may possess any ammunition unless she: (1) holds a licence in respect of a firearm capable of discharging that ammunition (2) holds a permit to possess ammunition (3) holds a dealer's licence, manufacturer's licence, gunsmith's licence, import, export or in- transit permit or transporter's permit issued in terms of this Act, or (4) is otherwise authorised to do so. Section 91(1) provides that the holder of a licence to possess a firearm may not possess more than 200 cartridges for each firearm in respect of which she holds a licence. However, in terms of subsection (2) this limitation does not apply to: a dedicated hunter or dedicated sports-person who holds a licence, or the holder of a licence to possess a firearm in respect of ammunition bought and discharged at an accredited shooting range The above provisions do not apply to official institutions such as the South African National Defence Force, the South African Police Service and the Department of Correctional Services. 3.5.4 Certain other offences created in the Act The following are certain other offences relating to firearms and ammunition (briefly defined) created in the Act: (1) to be aware that somebody else possesses a firearm illegally and to fail to report this to the police (2) to cause bodily injury to a person or damage to property by negligently using a firearm (3) to handle a firearm while under the influence of a substance which has an intoxicating or a narcotic effect (4) to discharge a firearm in a built-up area or a public place (5) to lose a firearm owing to a failure to lock it away in a safe, strong-room or safekeeping device, or owing to failure to take reasonable steps to prevent its loss or owing to failure to keep the keys to the safe, strong-room or device in safe custody Handling a firearm with reckless regard to the safety of any person. 58 LEARNING UNIT 3: Crimes against public welfare 3.6 ROAD TRAFFIC OFFENCES (Burchell Principles of Criminal Law 786– 796; HoctorCoopers Motor Law (2008 re- vised 2012) B9-8-B11-77) 3.6.1 Introduction Various offences relating to the regulation of road traffic are created in terms of the Road Traffic Act 93 of 1996. A number of these offences have been selected for study in this module. Road traffic offences fall under crimes against public welfare. The most important source of road-traffic legislation is the National Road Traffic Act 93 of 1996 (hereinafter "the NRTA"). The Act makes it an offence for any person to exceed the speed limit, engage in reckless, negligent or inconsiderate driving or to drive while under the influence of alcohol or drugs or while having an excess of alcohol in one's blood or on one’s breath. There are several definitions in the Act which you should know in order to understand the application of these offences. These definitions are discussed below. You are not required to memorise all these definitions. However, you should be able to recognise a factual situation which involves any of these definitions. You are also required to know the cases in which these definitions were applied and interpreted. 59 PART B: CRIMES AGAINST THE COMMUNITY 3.6.2 Driving in excess of the speed limit 3.6.2.1 Definition Section 59 of the NRTA provides that: (1) The general speed limit in respect of – (a) every public road or section thereof, other than a freeway, situated within an urban area; (b) every public road or section thereof, other than a freeway, situated outside an urban area; and (c) every freeway, shall be as prescribed. (2) An appropriate road traffic sign may be displayed on any public road in accordance with section 57, indicating a speed limit other than the general speed limit which applies in re- spect of that road in terms of subsection (1): Provided that such other speed limit shall not be higher than the speed limit prescribed in terms of subsection (1)(c). (3) The Minister may, after a decision has been taken in the Shareholders Committee, in re- spect of any particular class of vehicle prescribe a speed limit which is lower or higher than the general speed limit prescribed in terms of subsection (1)(b) or (c): Provided that the speed limit so prescribed shall not replace a lower speed limit indicated in terms of subsection (2) by an appropriate road traffic sign. (4) No person shall drive a vehicle on a public road at a speed in excess of – (a) the general speed limit which in terms of subsection (1) applies in respect of that road; (b) the speed limit indicated in terms of subsection (2) by an appropriate road traffic sign in respect of that road; or (c) the speed limit prescribed by the Minister under subsection (3) in respect of the class of vehicle concerned. 3.6.2.2 Elements of the offence The elements of speeding are: (1) driving (2) vehicle (3) public road (4) in excess of speed limit (5) unlawfulness (6) culpability Note that you are not required to memorise this definition. However, you must be able to set out and discuss the elements of the offence as set out below. 3.6.2.3 Act (a) Driving "Driver" means any person who drives or attempts to drive any vehicle or who rides or attempts to ride any pedal cycle or who leads any draught, pack or saddle animal or herd or flock of ani- mals, and "drive" or any like word has a corresponding meaning. Drive is not defined, so where it is associated with a vehicle it bears its ordinary meaning. 60 LEARNING UNIT 3: Crimes against public welfare The driving must constitute a voluntary act, which means that the offence would not be committed if a person acts involuntarily from an act of automatism or from an epileptic fit. Intoxication may cause involuntary conduct although the actio libera in causa does not apply to drunken driving. In Rooyen 1968 (1) SA 641 (T), the word “drive” was examined. X, who was under the influence of alcohol, had pushed his vehicle by exercising control over the steering wheel and handbrake from outside the vehicle. The court held that the accused had driven the vehicle as he had control of the movements of the vehicle. Whether the vehicle moves forward by force of gravity or as a result of being pushed by a person is irrelevant. In Ekstraal 1981 (4) S 406 (C), it was held that if someone sits behind the steering wheel of a vehicle, or controls the movements of the steering wheel of a vehicle which is being towed by another vehicle, this situation also qualifies as driving. In the contrasting case of Makhubela 1981 (4) SA 210 (B), where the accused drove without a valid driver's licence, it was held that the word "drive" must be considered in the context of licensed drivers. "To drive" means to have control of a vehicle which is propelled by its own mechanical power. A charge of attempting to drive is impossible, as is evident from the definition above, because "driver" includes persons who attempt to drive a vehicle. (b) Vehicle "Vehicle" means a device designed or adapted mainly to travel on wheels or crawler tracks and includes such a device which is connected with a draw-bar to a breakdown vehicle and is used as part of the towing equipment of a breakdown vehicle to support any axle or all the axles of a motor vehicle which is being salvaged other than such a device which moves solely on rails. The definition is broad and may also cover a pedal cycle (Gertse 1972 (3) SA 59 (C); Van Wyk 1965 (2) SA 158 (C). It is further clear that a device that travels on rails will be excluded from the definition and a train is therefore not a vehicle in terms of this Act. NOTE: EXCEPT FOR THE DEFINITION OF A PUBLIC ROAD BELOW, YOU DO NOT HAVE TO KNOW THE OTHER DEFINITIONS SET OUT ABOVE BY HEART. HOWEVER, YOU MUST BE ABLE TO IDENTIFY A SITUATION WHICH INVOLVES A "VEHICLE" AS DEFINED IN THE ACT OR "DRIVING" AS INDICATED IN THE ACT. (c) Public road "Public road" means any road, street or thoroughfare or any other place (whether a thorough- fare or not) which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access, and includes – (a) the verge of any such road, street or thoroughfare; (b) any bridge, ferry or drift traversed by any such road, street or thoroughfare; and (c) any other work or object forming part of or connected with or belonging to such road, street or thoroughfare. There are two requirements for a road, street or thoroughfare to qualify as a public road, namely: (1) It must be commonly used by the public or a section of the public; OR (2) The public or a section of the public must have a right of access to it (Dillon 1983 (4) SA 877 (N)). 61 PART B: CRIMES AGAINST THE COMMUNITY For example, in Coetzee 1970 (2) SA 445, it was held that a parking lot that was reserved for roadhouse customers did not qualify as a public road. In Drifters Adventure Tours CC v Hircock 2007 (2) SA 83 (SCA), the court held that the word "driving" does not include terrain driven over, such as "unmade roads, slippery or steep terrain", and the implication is therefore that such a path does not qualify as a public road. 3.6.2.4 Speed limit There are three general speed limits set out in section 59(1) of the NRTA, read with Regulation 426 under RTA 29 of 1989, which apply and which may be exceeded in terms of sections 89(1) and 89 (3) of the NRTA. These speed limits apply on the following roads: (1) A public road within an urban area (60 km/h) (2) A public road outside an urban area (100 km/h) (3) A freeway (120 km per hour) The Act does not stipulate what type of evidence is necessary to prove that the speed limit has been exceeded. The general principle would be that the onus rests on the state to prove that the vehicle exceeded the speed limit and that the timing device used to measure speed was accurate (Meaker 1998 (2) SACR 73 (W) 80). The interest protected by the prosecution of this crime is the physical safety of the general public. In S v Joseph 2013 (1) SACR 183 (GSJ), the accused exceeded the speed limit of 60 km per hour by driving at a speed of 102 km per hour. He received a suspended sentence but had to attend the Nicro Adult Life Skills programme. 3.6.2.5 Unlawfulness Despite the restrictions imposed by the speed limit, one needs to bear in mind that there are certain drivers who are permitted to exceed the general speed limit in terms of section 60 of the Act. The exceptions are the drivers of an ambulance, fire-fighting vehicle or response vehicle, a rescue vehicle and an emergency medical response vehicle who are carrying out their duties, or a traffic officer or SAPS member or any other authorised persons who drive a vehicle in the execution of their duties, subject to the condition that they should drive such vehicle with due regard to the safety of other road users and that certain vehicles are equipped with a lamp or sound device that must be operated when the general speed limit is exceeded. In the case of S v Groep 2002 (1) SACR 538 (E), for example, the appellant was a police officer who was convicted of negligent driving of a police vehicle. She was responding to an emergency and drove through a traffic-light-controlled intersection while the traffic lights were against her. It was held that she had not driven with "due regard" for the safety of other road users. In Fourie 2001 (2) SACR 674 (C), a regional magistrate raised a defence of official capacity as a ground of justification when he was charged with exceeding the speed limit. He stated that he was acting in the interests of the administration of justice because he would have been late for court proceedings. The court held that the respondent’s actions were unlawful and that he should have considered alternative measures to ensure that the speed limit would not be exceeded. Necessity may also be raised as a defence. 3.6.2.6 Culpability Burchell (at 795–796) is of the view that this crime may be one of strict liability. However, he also points out that, arguably, the defence of reasonable mistake with regard to a contravention of the speed limit could still perhaps be raised. 62 LEARNING UNIT 3: Crimes against public welfare 3.6.3 Reckless or negligent driving 3.6.3.1 Definition Section 63 of the NRTA reads as follows: (1) No person shall drive a vehicle on a public road recklessly or negligently. (2) Without restricting the ordinary meaning of the word “recklessly” any person who drives a vehicle in wilful or wanton disregard for the safety of persons or property shall be deemed to drive that vehicle recklessly. (3) In considering whether subsection (1) has been contravened, the court shall have regard to all the circumstances of the case, including, but without derogating from the generality of subsection (1) or (2), the nature, condition and use of the public road upon which the contra- vention is alleged to have been committed, the amount of traffic which at the relevant time was or which could reasonably have been expected to be upon that road, and the speed at and manner in which the vehicle was driven. You are expected to know this definition for examination purposes. 3.6.3.2 Reckless driving (Burchell 792) Section 63(1) provides that it is an offence for any person to drive a vehicle recklessly upon a public road. (a) The elements of the offence The elements of reckless driving may be divided into: (1) driving (2) vehicle (3) public road (4) recklessly (5) unlawfulness (6) culpability (b) The act The act consists in driving a vehicle recklessly on a public road. The meaning of the terms "driving", "vehicle" and "public road" has already been discussed above. It remains to consider the meaning of the concepts "recklessly" and "negligently". A person will be deemed to have driven recklessly if such person drives "in wilful and wanton disregard for the safety of persons or property". Reckless driving includes inconsiderate driving which might give rise to a risk of harm to others. If a person drives inconsiderately, such driving could be considered to be reckless as there is a disregard for the safety of other road users (Van Zyl 1969 (1) SA 553 (A)). Recklessness and negligence are distinct concepts and are treated separately in the sentencing phase. Intention in the form of dolus eventualis may also be present in acts of recklessness where there is an appreciation or acceptance of risk (Van Zyl supra at 557). In determining whether a person has driven recklessly or negligently, the manner in and speed at which the vehicle was driven will be considered, together with the amount of traffic on the road. 63 PART B: CRIMES AGAINST THE COMMUNITY In Van Zyl it was held that the accused was guilty of gross negligence as the facts of the case re- vealed that his eyes had been focused elsewhere for such a long period of time that his car wandered over to the wrong side of the road, causing a collision with an oncoming vehicle. The court held that apart from dolus eventualis, the word "reckless" includes gross negligence. The appellant was convicted of reckless driving by a magistrate's court. On appeal it was held that gross negligence had been proved and that the accused's conduct was reckless. (c) Unlawfulness The element of unlawfulness may be excluded by grounds of justification such as necessity and official capacity, depending on the objective circumstances. (d) Culpability As pointed out above, the element of culpability may consist in intention (dolus eventualis), and gross negligence. 3.6.3.3 Negligent driving (Burchell 790ff) Section 63(1) of the NRTA also provides that it is an offence for any person to drive negligently upon a public road. (a) The elements of the offence The elements of negligent driving may be divided into: (1) driving (2) vehicle (3) public road (4) negligently (5) unlawfulness (6) culpability (b) The act The act consists in driving a vehicle negligently on a public road. The meaning of the terms "driving", "vehicle" and "public road" have already been discussed above. It remains to consider the meaning of the concept "negligently". The interest protected by the crime of negligent driving is the safety of the public using the roads. Negligence is present where a reasonable person in the same circumstances would have foreseen that the driving could create a risk of harm to other persons and should have guarded against such risk and failed to do so (Kruger v Coetzee 1966 (2) SA 428 (A)). Such risk should not be remote. A person drives negligently if he does not drive with the degree of care and skill a reasonable man would exercise in the same circumstances (Naik 1969 (2) SA 231 (N)). As Burchell says (790–791), a reasonable person would not drive like a racing driver or with excessive caution and timidity. Because our law does not recognise degrees of negligence, the slightest deviation from the reasonable-person standard will be regarded as negligent driving. 64 LEARNING UNIT 3: Crimes against public welfare In Erwin 1974 (3) SA 438 (C), while the accused was overtaking another vehicle, a bee flew into his car and stung him on the cheek. He instinctively pulled his head away and bumped his glasses against the window and one of the lenses broke. He released the steering wheel to protect his eyes from the splinters and his vehicle collided with the car he was overtaking. The court set a high standard for the test of the reasonable man and held that he made an error of judgment during an emergency, but that a reasonable driver would not have made this error and that a reasonable driver must be able to cope with unexpected situations. He was accordingly convicted of negligent driving. Automatism may be raised as a defence to the conduct requirement where a motorist claims to have had, for example, a mental blackout or an epileptic attack. R v Victor 1943 TPD 77 X was charged with reckless or negligent driving as he had a collision with another vehicle and a pedestrian as a result of an epileptic fit. He had had prior seizures and had insufficient reason to assume he would not have another seizure on that day. It was foreseeable that a seizure could have happened, and he knew what the consequences could be. He was found guilty of negligent driving. This is also known as antecedent liability which you studied in the CRW2601 course, where X performs a voluntary act knowing that he may suffer from an epileptic fit, but hopes it will not occur, and proceeds to drive the car while conscious. In such instances a person will be held liable. (c) Unlawfulness The requirement of unlawfulness must also be complied with, which means that no ground of justification should be present, such as necessity or official capacity. Some of the defences that may also be raised are mechanical failure, skidding or sudden emergency. (d) Culpability Aside from the possibility of being found guilty of reckless or negligent driving discussed above, a number of other common-law crimes can also be committed, like murder, attempted murder or culpable homicide. In Humphreys 2013 (2) SACR 1 (SCA) ZASCA 20, the accused, who was 55 years old, was the driver of a mini-bus which collided with a train. Ten of the 14 children being transported by the mini-bus were killed and he was charged and convicted of ten counts of murder and four counts of attempted murder. On appeal, the ten convictions of murder were set aside. The Supreme Court of Appeal held that the accused did not have intention in the form of dolus eventualis. However, 65 PART B: CRIMES AGAINST THE COMMUNITY he was found guilty of culpable homicide on the basis that he was negligent. The attempted murder charges were set aside. In S v Qeqe 2012 (2) SACR 41 (ECG), the accused was trying to evade the police in a stolen vehicle and drove onto the sidewalk, killing three pedestrians who were children. The accused was charged with theft, reckless and negligent driving and murder. He pleaded guilty to the first two charges but was also found guilty of three counts of murder, as it was held that he had intention in the form of dolus eventualis. Please take note that even though the Act has grouped reckless and negligent driv- ing together in one provision, these are two separate crimes, each requiring different culpability. If you must ascertain one of the crimes in a set of facts pro- vided, please make sure that you have identified the correct crime. Ask yourself: is intention or negligence sufficient in this scenario? ACTIVITY X, a police officer, is in hot pursuit of a criminal who has allegedly committed a robbery. He drives through a red traffic light and collides with another vehicle which is crossing the intersection from the side for which the traffic light is green. Can X be found guilty of reckless or only of negligent driving? FEEDBACK If there is a wilful and wanton disregard for the "safety of persons or property" or gross negligence, then recklessness could be present. If a reasonable person would have acted differently, then the officer could be found guilty of negligent driving. There are far less dangerous methods of apprehending alleged criminals, such as by noting down their licence plates, the use of video cameras on the dashboard, utilising helicopters or even other SAPS vehicles that are patrolling the area towards which the vehicle is travelling and that could be alerted. In the case of S v Groep 2002 (1) SACR 538 (E), for example, the appellant was a police officer who was convicted of negligent driving of a police vehicle. She was responding to an emergency and drove through a traffic-light-controlled intersection while the traffic lights were against her. 3.6.4 Inconsiderate driving 3.6.4.1 Definition Section 64 of the NRTA provides that: No person shall drive a vehicle on a public road without reasonable consideration for any other person using the road. 3.6.4.2 Elements of the offence The elements of this offence are: (1) driving (2) vehicle (3) public road (4) without reasonable consideration (5) culpability 66 LEARNING UNIT 3: Crimes against public welfare 3.6.4.3 Act The act consists in driving a vehicle on a public road without reasonable consideration of other road users. The meaning of the terms "driving", "vehicle" and "public road" have already been discussed above. This offence can only be committed if other road users are present on the road at the time. In Killian 1973 (2) SA 696 (T), it was held that "without reasonable consideration" means without the consideration that “a reasonable man would have shown in the situation and circumstances prevailing at the time”. This offence is even applicable where driving is calculated to embarrass or inconvenience other road users. It does not include situations of negligent driving and other road users must be present for this offence to be committed. 3.6.4.4 Unlawfulness The requirement of unlawfulness must also be complied with, which means that no ground of justification should be present. 3.6.4.5 Culpability This offence can be committed with intention or negligence. 3.6.5 Driving under the influence of intoxicating liquor or drugs with a narcotic effect 3.6.5.1 Definition Section 65(1) of the NRTA provides that: No person shall on a public road – (a) drive a vehicle; or (b) occupy the driver's seat of a motor vehicle the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect. 3.6.5.2 Elements of the offence The elements of driving under the influence of alcohol or drugs are: (1) driving (2) vehicle (3) public road (4) under the influence of intoxicating alcohol/drugs with a narcotic effect (5) culpability 3.6.5.3 Act The act consists in driving a vehicle on a public road while under the influence of intoxicating alcohol or drugs with a narcotic effect. The meaning of the terms "driving", "vehicle" and "public road" have already been discussed above. There are two offences created by this section, which is aimed at the protection of the public, and these are (1) the driving of a vehicle while under the influence and (2) occupying the driver’s seat while the engine of the motor vehicle is running, while under the influence. 67 PART B: CRIMES AGAINST THE COMMUNITY Where a person is sitting behind the steering wheel of a stationary vehicle which has its engine running, he cannot be said to be "driving" the vehicle in terms of the offence in (1), but he may be found guilty of a contravention of the offence in (2) above. It must be proved that the driver was affected by the intoxicating liquor or drug to such a degree that the skill and judgment normally required of a driver was diminished or impaired as a result. "Skill" refers to the driver's physical powers, and is diminished or impaired when the driver's vision, judgment or muscular coordination is affected. "Judgment" refers to the driver’s mental powers, which are deemed to be impaired or diminished if the intoxicating liquor or drug causes him to be euphoric or over-optimistic. The driver must have been under the influence at the time of driving the vehicle. Alcohol usually refers to ethyl alcohol and the drug referred to should have a narcotic effect and need not be a narcotic drug per se (Whitehead 1970 (1) SA 25 (T)). Any substance or remedy which has an effect resembling that of a narcotic drug is included and not merely pharmaceutical narcotics. Driving under the influence of intoxicating liquor or drugs with a narcotic effect. Although the personal use of marijuana has been legalised, it is still unlawful to drive while under the influence of intoxicating drugs with a narcotic effect. 3.6.5.4 Unlawfulness The requirement of unlawfulness must also be complied with, which means that no ground of justification should be present. 3.6.5.5 Culpability This offence can be committed with intention or negligently. Culpability will also be present where the accused foresees or ought to have foreseen that he or she would drive a vehicle while under the influence. Voluntary intoxication will therefore not operate as a defence as this section provides for antecedent liability. Where an accused did not know that he was under the influence of alcohol, for example in a situation where a drug or alcohol was administered without an accused’s knowledge, such as where somebody put alcohol into his soda drink ("spikes his drink"), he would lack culpability. Another defence that could perhaps be raised is that an accused was ignorant of the combined effects of intoxicating liquor and narcotic drugs. 68 LEARNING UNIT 3: Crimes against public welfare 3.6.6 Driving with excessive alcohol in the blood 3.6.6.1 Definition Section 65(2) of the NRTA provides that: No person shall on a public road – (a) drive a vehicle; or (b) occupy the driver’s seat of a motor vehicle the engine of which is running, while the concen- tration of alcohol in any specimen of blood taken from any part of his or her body is not less than 0,05 grams per 100 millilitres, or in the case of a professional driver referred to in sec- tion 32, not less than 0,02 grams per 100 millilitres. 3.6.6.2 Elements of the offence The elements of the crime of driving with excessive alcohol may be divided into: (1) driving (2) vehicle (3) public road (4) blood alcohol (5) culpability 3.6.6.3 Blood alcohol The act consists of driving a vehicle on a public road while having consumed excessive amounts of alcohol which is present in the blood. The meaning of the terms "driving", "vehicle" and "public road" has already been discussed above. Two offences are created by this section, namely (1) the driving of a vehicle and (2) occupying the driver's seat while the engine of the motor vehicle is running, where the alcohol in any specimen of blood taken is not less than 0,05 grams per 100 millilitres, or in the case of a professional driver the amount is not less than 0,02 grams per 100 millilitres. Where the blood alcohol level is concerned, in terms of section 65 (9) one may not refuse to provide a specimen of one’s breath or blood. The state must prove using expert evidence, such as that of a district surgeon, a registered medical practitioner, a medical officer of a prison or a registered nurse, that the concentration of alcohol exceeded 0.049 grams at the time the accused was driving the vehicle, by means of a chemical analysis and that the blood sample is the blood of the accused (Ross 2013 (1) SACR 77 (WCC)). The blood alcohol specimen must not be contaminated. The limits are strictly applied, and even minor transgressions are punishable (Director of Public Prosecutions v Klue 2003 (1) SACR 389 (E)). There is a presumption that if the blood sample was taken within two hours after the alleged offence and if it was not less than 0.05 grams per 100 millilitres, that the alcohol content exceeded the prescribed limit at the time of the offence. 3.6.6.4 Unlawfulness The requirement of unlawfulness must also be complied with, which means that no ground of justification should be present. 3.6.6.5 Culpability This offence can be committed with intention or negligently. In Kelder 1967 (2) SA 644 (T), it was held that if an accused, while driving, is under the influence of alcohol to such a degree that he is not criminally responsible, he will still have the necessary mens rea if while sober he should have foreseen that he might need to drive in his drunken state. Automatism caused by voluntary 69 PART B: CRIMES AGAINST THE COMMUNITY intoxication does not constitute a valid defence on a charge of drunken driving should the accused comply with the requirement of negligence. 3.6.7 Additional offences relating to driving 3.6.7.1 Driving or occupying a driver's seat while under the influence of alcohol if the breath specimen exceeds the limit Section 65(5) also provides for an offence where (1) a person drives a vehicle or (2) occupies the driver's seat if the level exhaled by breath is not less than 0.24 milligrams per 1000 millilitres. The onus rests on the state to prove that the analyst’s findings are reliable (Price v Mutual and Federal Insurance Co Ltd 2007 (1) SACR 501 (E)). This offence can be committed with intention or negligently. 3.6.7.2 Duty to report an accident Section 61(1) of the NRTA partly provides that: (1) The driver of a vehicle at the time when such vehicle is involved in or contributes to any acci- dent in which any person is killed or injured or suffers damage in respect of any property, including a vehicle, or animal shall— (a) immediately stop the vehicle and report the accident on the prescribed form and in the prescribed manner, the officer concerned shall deal with the report in the pre- scribed manner and the chief executive officer must ensure that the accident is recorded in the register of accidents in the prescribed manner and within the pre- scribed period; (b) ascertain the nature and extent of any injury sustained by any person; (c) if a person is injured, render such assistance to the injured person as he or she may be capable of rendering; (d) ascertain the nature and extent of any damage sustained; (e) if required to do so by any person having reasonable grounds for so requiring, give his or her name and address, the name and address of the owner of the vehicle driven by him or her and, in the case of a motor vehicle, the licence number thereof. It is therefore clear that section 61(1) of NRTA requires a driver of a vehicle who is involved in or contributes to an accident where another person is injured or killed or suffers damage, for such driver to stop their vehicle immediately in order to provide assistance and assess damage (Mutobvu 2013 (2) SACR 366 (GNP). Such person is also required to report the accident to the police within a reasonable time. In S v Taute 2018 (2) SACR 263 (ECG), the court confirmed that failure to render assistance to injured persons at scene of accident was an offence, contravening section 61(1)(c) of NRTA. In this case, X stopped after an accident and discovered damage to the vehicle involved. However, he proceeded to a police station to report the matter – instead of first rendering assistance to the person injured in the accident. 70 LEARNING UNIT 3: Crimes against public welfare GLOSSARY animus the mental element of possession, i. e. the intention with which some- body exercises control over an article corpus a physical object or a physical requirement; the physical element of pos- session, i.e. physical control over something detentio the physical element of possession, i.e. physical control over something possessio civilis possession as if one is an owner, i.e. possession for oneself possessio naturalis possession not for oneself, but on behalf

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