Aspirant Prosecutor Programme Study Guide 2024 PDF

ASPIRANT PROSECUTOR PROGRAMME STUDY GUIDE FOR ENTRY EXAMINATION 2024 ACKNOWLEDGEMENTS This is a study guide which is compiled for the purpose of allowing applicants to prepare for the Aspirant Prosecutor Programme, entry examination. This is not an academic work and cannot be used as an academic reference. This guide is prepared for Aspirant Prosecutors and is the property of the National Prosecuting Authority. Names of contributors: Office: Baba, Yusuf DPP: South Gauteng - Randburg Lamprecht, Adriaan DPP: South Gauteng - Protea Lamprecht-Nel, Nadine DPP: South Gauteng - Johannesburg Ndiitwani, Mutangwa DNDPP: NPS – Skills Development Padayachee, Kevin DPP: North Gauteng – Vaal Pillay, Penny DNDPP: NPS – Skills Development Van Zyl, Francios DPP: North Gauteng - Pretoria SOURCES 1. Commentary on the Criminal Procedure Act: Du Toit and others. Published Year: 2023, Edition: Revision Service 70: Du Toit E, De Jager F, Paizes A, St Quintin - Skeen A, Van der Merwe S and Terblanche S 2. Hiemstra`s Commentary on Criminal Procedure Act. Publisher: LexisNexis South Africa: Albert Kruger 3. Principles of Evidence. Published Year: 2023, 5th Edition: Schwikkard PJ, Mosaka TB, Visser J, Whitear-Nel N and Singh N 4. Snyman’s Criminal Law 7th Ed Publisher: LexisNexis South Africa: Kallie Snyman and Shannon Vaughn Hoctor 5. A Guide to Bail Applications. Published Year: 2018, 2nd Edition: Mokoena MT 6. Recent Cases: Sentencing South African Journal of Criminal Justice, Volume Number: 35, Issue: Part 3 Published Year: 2022 : Terblanche, S. Citation: (2022) 35 SACJ 412 -2- 7. Prosecution Policy Directives. 8. African Criminal Law and Procedure Volume III: Statutory Offences CD-Rom and Intranet: ISSN 2218–127X Internet: ISSN 2218–113X Jutastat e-publication S V Hoctor, M G Cowling, J R L Milton Snyman’s Criminal Law seventh edition, Justice College notes, SAFLII. 9. Justice College note: A selective discussion of the Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992) by B J King, Updated by J P Nordier 2021. 10. LAWSA: Evidence (Volume 18 - Third Edition) DP Van Der Merwe. 11. Criminal Matters Amendment Act 18 of 2015 12. Domestic Violence Act 116 of 1998, Domestic Violence Amendment Act 14 of 2021 Criminal and Related Matters Amendment Act 12 of 2021 13. Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007; Criminal Law (Sexual Offences and Related Matters) Amendment Act 13 of 2021. 14. Child Justice Act 75 of 2008. -3- CONTENTS Pages Introduction 5 Part I Basic Principles of Criminal Law 7 - 22 Common Law Crimes 22 - 38 Statutory Offences 38 - 84 Part II The Law of Evidence 86 – 139 Modern Technology and how this impacts on: The Presentation of Evidence 140 - 152 Part III The Criminal Procedure Act 154 - 418 Part IV Sentencing 419 - 461 -4- INTRODUCTION: The purpose of this study guide is to prepare you with the basic principles required to ensure that every criminal case is properly presented before a criminal court. The triad consisting of Criminal Law, Criminal Procedure and Law of Evidence is the foundation to achieve the success of presenting Evidence. Criminal law provides for offences and lays the foundations as to what elements are required in respect of specific offences. Criminal procedure lays down the procedure to follow in respect of the evidence secured for presentation. Law of Evidence deals with the admissibility and relevance of the evidence to be presented at court. From the onset is important to note that these aspects are interlinked and cannot work in isolation. Throughout this guide there will be multiple references to the linkage between these three facets of law. -5- PART I INTRODUCTION TO CRIMINAL LAW -6- A. BASIC PRINCIPLES OF CRIMINAL LAW 1. Requirements for Legality When dealing with criminal liability the first question that needs to be asked in determining somebody’s criminal liability is whether the conduct that forms the basis of the charge is recognised in our law as a crime, as such conduct that may be seen as morally wrong is not necessarily legally wrong. As such in simple terms: the law must recognise the act/conduct as a crime in clear terms before the conduct took place. It must also not be necessary to interpret the words in the definition of the crime broadly in order to cover the conduct of the accused. In essence, the type of conduct must be recognised by the law as a crime, be clear and be set out before the act occurs. This principle is known as the “principle of legality”. 2. Conduct and Voluntariness Once it is clear that the law regards the conduct as a crime, the next step is to determine whether there was conduct on the part of the person charged with the offence. Any act in the legal sense must be voluntary, however, the concept of a voluntary act should not be confused with the concept of a deliberate act. To establish whether there was an act, the question is whether the act was voluntary. As an act need not be only a deliberate or wilful act, the act may be negligent and that is sufficient for it to be a punishable criminal act. An act will be involuntary where it occurs as the result of the application of superior force upon the body of a person. A distinction is drawn between absolute force and relative force. The distinction between absolute and relative force is that in the case of absolute force a person is unable to subject his bodily movements to his will and so there is no voluntary act on his part. In the case of relative force, it is possible for a person to not commit the prohibited act. -7- Another way an action will be seen to be involuntary is where there is evidence of automatism. Automatism is separated between sane and insane automatism. Sane automatism occurs where the accused relies on the defence that he did not commit a voluntary act as he acted as an automaton. In the case of insane automatism, the accused will rely on the defence of mental illness, this concept is discussed in sections 77, 78 and 79 of the Criminal Procedure Act 51/1977. The distinction between the two is relevant as in the case of sane automatism the onus is on the state to prove that the act was performed voluntarily. In terms of sane automatism, the hallmark of the characterisation is that there be no evidence of premeditation. This was espoused in S v Matjane (CC122/2016) ZAGPPHC 956, where the conduct of the accused indicated voluntary goal-directed behaviour and she was held to be criminally liable and duly convicted of both counts of murder. Act (positive conduct) Since the criminal law does not punish mere thoughts, criminal liability will arise only where the human being concerned has carried out an 'act' or an omission. Omission (failure to act) An omission is a less common basis of criminal liability than a positive act. An omission is punishable only if there is a legal duty to act positively. Such a legal duty arises if the legal convictions of society demand it. There are seven legal duties that have been noted in our law they are as follows: 1. Contractual Duty - An example of a duty to act in a contractual setting was dealt with in the English case of Pittwood (1902) 19 TLR 37 wherein a level-crossing keeper failed in breach of his contract of employment to close the gate when a train was approaching, resulting in the death of someone on the crossing. The accused was convicted of culpable homicide despite the contractual obligation being only owed to the railway company. -8- 2. Act or Statute - A statute may place a duty on somebody to act positively, in terms of the Income Tax Act there is an obligation placed upon a taxpayer to file their Income Taxes timeously in terms of the law. 3. Dangerous Object - duty may arise where a person accepts responsibility for the control of a dangerous or a potentially dangerous object, and then fails to control it properly. Fernandez v S 1966 2 SA 259 (A), herein Fernandez kept a baboon and failed to repair its cage properly, with the result that the animal escaped and bit a child, who later died. Fernandez was convicted of culpable homicide. 4. A duty may arise where a person stands in a protective relationship towards somebody else. A parent or guardian has a duty to feed a child. This is espoused in both the Children’s Act as well in the case of Chenjere v S 1960 1 SA 473 (FC). In this matter a partner to the parent of the child had a legal duty to care for their child failed to feed the child and the child died as a result. He was convicted of Murder. 5. A duty may sometimes arise by virtue of the fact that a person is the incumbent of a certain office, such as a medical practitioner or a police official. In Minister van Polisie v Ewels 1975 3 SA 590 (A) it was held that a policeman on duty who witnesses an assault has a duty to come to the assistance of the person being assaulted. 6. A duty may arise from a previous positive act. The omission follows upon a commission or positive act which has created a duty to act positively. S v Van Aardt 2009 1 SACR 648 (SCA), in this matter the accused severely assaulted the victim, then as opposed to obtaining medical attention for the victim he left him to succumb to his injuries. Accused was convicted of murder. 7. A legal duty may arise by virtue of an order of court. If a court orders the person to pay monthly maintenance in terms of a divorce decree, and the person fails to pay the said maintenance he may be charged with contempt of court. 3. Causation Crimes may be divided into two groups, that being formally and materially defined crimes. -9- In formally defined crimes, a certain type of conduct is prohibited irrespective of the result of such conduct. In materially defined crimes, on the other hand, it is not specific conduct which is prohibited, but any conduct which causes a specific condition. When dealing with materially defined crimes, it is essential to establish whether a causal link or nexus exists between the conduct of the accused and the prohibited result. The basic principle is that to establish causation, there needs to be a causal link between the act of the accused and the outcome. The courts (Daniels v S 1983 3 SA 275 (A) and S v Tembani 2007 1 SACR 355 (SCA)) have confirmed that in order to determine whether certain conduct has caused a certain prohibited condition, two requirements must be met: firstly, one must determine whether the conduct was a factual cause of the condition and secondly one must determine whether the conduct was also the legal cause of the condition. The conditio sine qua non test, deals with the factual cause: Where the conduct in question takes the form of a positive act, the question is asked whether; but for the accused's conduct, the consequence in question would not have occurred at all or when it did. If the answer to this question is in the affirmative, then the accused's conduct is a factual cause of the consequence. When dealing with the legal causation we deal with several different theories of legality, first of which is proximate cause – in that the accused persons actions were a close or an approximate cause of the condition so caused. In Daniels v S 1983 (3) SA 275 (A) Daniels shot the victim in the back with a rifle and the victim fell to the ground, severely wounded. The victim’s injuries were severe enough to result in his death should he not receive medical treatment within around half an hour. Soon after the shooting a third party arrived on the scene and shot the victim in the ear, this immediately caused the death of the victim. There had been no prior agreement between Daniels and the second shooter. The second shooter’s actions were the immediate cause of the victim’s death. A causal link was therefore established. The question was whether Daniel’s had also caused the death of the victim. His conduct was a conditio sine qua non of the death as well as the - 10 - legal cause. The judges also submitted that there were no policy considerations to exonerate Daniels. The second shooter’s act was not a novus actus and Daniel’s criminal liability cannot necessarily be said to be based on proximate cause. Secondly, we look at the theory of adequate causation – an act is a legal cause of a situation if, according to human experience, in the normal course of events, the act has the tendency to bring about that type of situation. In S v Counter 2003 (1) SACR 143 (SCA) The accused shot and wounded the deceased who died in hospital due to side-effects from the gunshot wound as septicaemia had set in. The deceased’s resistance was severely weakened and death ensued. The Court held that the accused should be held responsible for the consequences of his actions which caused the deceased’s death by stages entirely predictable and in accordance with human experience. Finally, we look at a Novus actus interveniens. This means ‘a new intervening event’ and demonstrates a break in the chain of causation. An act will meet with this requirement only if it constitutes an unexpected, abnormal, or unusual occurrence. The act must deviate from the normal course of events and must not be regarded as a probable result of the initial act. However, an act will not qualify as a novus actus if the accused previously knew or foresaw that it might occur. In S v Tembani 2007 (1) SACR 355 the accused shot the deceased. The wound would in the ordinary course have caused the death of the deceased. The hospital staff negligently failed to intervene appropriately. Appropriate intervention would have rendered the wound non-fatal. The original wound remained the operating and substantial cause of death. The Court held that medical negligence, even gross medical negligence, cannot be a novus actus interveniens. Thus, the act of the accused was the legal cause of death. 4. Unlawfulness Unlawfulness may be described as conduct that is unjustified and as such is prohibited conduct. As such a justified act cannot be seen to be unlawful. An act is therefore either lawful or unlawful. - 11 - There are a number of cases or situations; where an act which matches the definitional elements is nevertheless not regarded as unlawful. Unlawfulness is excluded because of the presence of grounds of justification. Defences excluding unlawfulness: ◼ Private Defence A person acts in private defence, if he uses force to repel an unlawful attack which has already commenced, or which immediately threatens his or somebody’s else’s life, bodily integrity, property or other interest that ought to be protected by the law, provided the defensive action is necessary to protect the threatened interest, is directed against the attacker and is no more harmful than necessary to ward off the attack and as such his conduct is therefore lawful. Requirements of the attack: 1. Be unlawful - Papu 2015 2 SACR 313 (ECB) wherein at para 10 the court held that; “It is self-evident that in those circumstances the deceased's actions, in firing a shot at what he believed to be intruders on his property, were clearly not unlawful” As a result the accused was convicted of murder. 2. Against interests which should be protected – Teixeira v S 1980 3 SA 755 (A) 765 A; wherein the court found “The only conduct really relevant to the issue of self-defence is that relating to appellant's reaction to the deceased's threat to assault him with the bottle. It was suggested to appellant that he could have called for help. I do not appreciate how a call for help could possibly have availed appellant when (on appellant's version) the deceased advanced towards him evincing a clear intention of striking him with the bottle. It was suggested that appellant "had enough time and place to get himself out of the dilemma". In my opinion, the circumstances indicate the contrary. Even on an armchair approach, it appears that, with the deceased being less than a metre away from him, it would have been an act of folly on appellant's behalf to have attempted to seek safety in flight. In my opinion, the State failed to prove beyond any reasonable doubt that appellant's conduct in killing the deceased was not justified, i.e., that he had acted unlawfully.” Resultantly the accused was acquitted of the murder charge. 3. The attack must be imminent but not yet completed - Mokgiba 1999 1 SACR 534 (O) 550 – The court held that once the attack is completed one cannot act - 12 - in self-defence or private defence. Private defence is not a means of exercising vengeance, neither is it a form of punishment. Requirements of the defence 1. Directed against the attacker 2. Be necessary - The defensive act must be essential in order to protect the interest threatened –in S v Engelbrecht 2005 2 SACR 41 (W) the court held that “The basic idea underlying private defence is that a person is allowed to “take the law into his own hands”, as it were, only if the ordinary legal remedies do not afford him effective protection he is not allowed to claim the functions of a judge and a sheriff. On the other hand, a threatened person need not accept the threats or actual violence merely because he will be able to claim damages afterwards.” 3. There must be a reasonable relationship between the attack and the defensive act – Ngobeni v S 2014 ZASCA 59. 4. Be taken while the defender is aware that he is acting in private defence The test for Private Defence is an objective one. A person cannot rely on private defence if it appears that he was not exposed to any danger, but merely believe that he was. If the accused reasonably believes that he is in danger and acts to protect himself – this would be Putative Private Defence. The test for Putative Private Defence is a subject one. S v Tuta - 2024 (1) SACR 242 (CC): “An accused who kills another, believing his or her life to be in danger, when objectively, it is not, acts unlawfully. However, where such an accused kills another in the mistaken but genuine belief that his life is in danger, the accused lacks the intention to act unlawfully. … Putative private defence is thus concerned with culpability and not unlawfulness. Culpability on a charge of murder is judged according to what the accused believed.” ◼ Necessity A person acts in necessity, and her act is therefore lawful, if she acts in protection of her own or somebody else’s life, bodily integrity, property or other legally recognised interest which is endangered by a threat of harm which has commenced or is imminent and which cannot be averted in another way, provided the person is not legally compelled to endure the danger and - 13 - the interest protected by the protective act is not out of proportion to the interest infringed by the act. It is immaterial whether the threat of harm takes the form of compulsion by a human being or emanates from a non-human agency such as force of circumstance. These two grounds of justification known as necessity and private defence are closely related to each other. In both cases a person protects interests which are of value to him or her, such as life, bodily integrity, and property, against threatening danger. The differences between these two grounds of justification are the following: (1) Private defence always stems from and is always directed at an unlawful attack; necessity, on the other hand, can stem from either an unlawful act or from chance circumstances, such as acts of nature or even an animal. (2) In cases of necessity it is directed at the interests of another innocent party. ◼ Impossibility Impossibility may justify failure to comply with a positive legal obligation. The defence of impossibility is relevant where it is impossible for the accused to comply with a positive ruling of the law. Canestra v S 1951 2 SA 317 (A) 324 ◼ Superior orders The defence of obedience to orders arises in the context of obedience to military and police commands. This question arises mostly with reference to the conduct of subordinates in the defence force and the police but is not limited to soldiers and policemen. A soldier is compelled to obey an order only if the order is manifestly lawful. If it is manifestly unlawful, he may not obey it; and if he does, he acts unlawfully. In S v Mostert 2006 1 SACR 560 (N) the court held that the requirements of the defence are: 1. The order must emanate from a person lawfully placed in authority over the accused. 2. The accused must have been under a duty to obey the given order. 3. The accused must have done no more harm than was necessary to carry out the order. - 14 - ◼ Consent Consent by the person who would otherwise be regarded as the victim of an accused person’s conduct may, in certain cases, render the otherwise unlawful conduct lawful. Consent as a ground of justification in criminal law is possible only to a limited degree, since consent can operate as a ground of justification in respect of certain crimes only, and then only under certain circumstances. ◼ Entrapment Entrapment is not a ground of justification. The mere fact that the accused person was entrapped and then committed conduct that is punishable by law does not mean that his conduct is justified; however, he may in certain circumstances escape liability because the court may hold that evidence regarding the entrapment is not admissible against the accused person – S v Nortjé 1996 2 SACR 308 (C). ◼ De minimis non curat lex If the accused person commits an act which is unlawful but the degree in which he contravenes the law is minimal, that is, of a trifling nature, a court will not convict him of the crime in question. The principle that comes into play here, is that embodied in the maxim de minimis non curat lex, which means “the law does not concern itself with trifles”. De minimis non curat lex is not a defence which excludes the unlawfulness of the accused's conduct, but rather a decision of a court to allow unlawful conduct to go unpunished on account of its triviality. Kgogong v S 1980 3 SA 600 (A) – The appellate division refused to uphold a conviction of theft of a piece of wastepaper as this was a triviality. ◼ Official Capacity An act which would otherwise be unlawful is justified if a person is entitled to perform it by virtue of the office she holds, provided it is performed in the execution of her duties. As such a SAPS clerk who transfers drugs from the SAP 13 store to the Forensic Services Laboratory, will not be in unlawful possession of drugs. In S v Huyser 1968 3 SA 490 (NC) the agricultural official had been entitled to shoot a wounded buck since he, by implication, had the required authorisation where such an action was necessary for the prevention of disease. - 15 - ◼ Presumed Consent or Negotiorum gestio An act that infringes upon the interests of another and the person meets all of the definitional requirements of the crime, however their actions are justified in that they further the interests of the person against whom the alleged crime is committed. An example of this would be breaking the burglar proofing to a person’s burning home in order to rescue the homeowner. As such whilst the crime of malicious injury to property was committed, the actions were justified by the circumstances. ◼ Disciplinary Chastisement In the common law it was a ground of justification to raise a defence of disciplinary chastisement where the punishment of a child, learner, spouse or employee was reasonable and moderate. Over time the justifications regarding a spouse and employee fell away. As did that of a school learner in the Constitutional Court decision of Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC). Finally, in the Constitutional Court decision of Freedom of Religion South Africa v Minister of Justice and Constitutional Development 2020 (1) SACR 113 (CC) the court ruled that parental chastisement of their children was unconstitutional and that chastisement was not a ground of justification. As a result, in South African law chastisement is not a ground of justification. 5. Criminal Capacity Every person that is prosecuted as an accused must have criminal capacity before they can stand trial. Criminal Capacity is a two-legged test. Firstly, a person must have the ability to understand and appreciate the wrongfulness of his/her conduct and, secondly, he/she must be able to conduct him/herself in appreciation of the wrongfulness of their conduct and understand the consequences of their actions. Criminal Capacity must exist at the time of the committal of the offence. If one or both legs of this test are amiss the accused cannot be prosecuted. Please see the matter of S v Eadie 2002 (1) SACR 663 (SCA). The appellant was found guilty of murder in a lower court after he killed a motorist in an act of road rage. His plea was one of non-Pathological criminal incapacity. After he was found guilty the appellant appealed his conviction to the Supreme Court of Appeal. Part of the appellant’s grounds of appeal was that he had dealt with a similar incident prior in his life and further that he was - 16 - provoked to such an extent that the element of unlawfulness lacked during this incident. After looking at all the factors involved the Supreme Court of appeals found that the appellant did not lack criminal capacity and his appeal was dismissed. The Child Justice Act 75 of 2008 was amended by the Child Justice Amendment Act 28 of 2019 regulating criminal capacity of a child under this act. In the past a child below the age of 10 years was presumed to lack criminal capacity. Children between the ages of 10 years and 14 years were presumed to have criminal capacity however, the State was required to prove that such criminal capacity was present at the time of the commissioning of the offence. With the amendments to the Child Justice Act, it is now presumed that a child below the age of 12 years lacks criminal capacity and children between the ages of 12 and 14 have criminal capacity however, the State is still required to prove that such capacity was present at the time of the commissioning of the offence. 6. Fault / Culpability Fault is an element of every crime. It takes the form of either intention (dolus) or negligence (culpa). All common-law crimes require intention, apart from culpable homicide and contempt of court committed by an editor of a newspaper, for which negligence is sufficient. Statutory crimes require either intention or negligence. It is a firmly established principle of criminal justice that there can be no liability without fault. In other words, the general rule is that, in order for an accused to be held liable, in addition to unlawful conduct and capacity, there must be fault on the part of the accused. There is also a presumption of statutory interpretation that the legislature intended some form of fault as a requirement for liability under the statute in question. In the matter of S v Dube (CC03/22) ZAMPMBHC 28 (3 May 2022) the Court defined the different means of fault or as otherwise known Culpability. 7. Participation in crime So far, we have dealt with the criminal liability of a person who has satisfied him/her with the definitional elements of the crime (the perpetrator). However, more than one person may be - 17 - involved in the commission of a crime, and we now need to consider how the law assigns liability to such persons. Participation can be divided into three categories: 1) Perpetrators – is a person whose conduct, considering the circumstances as well as his/her fault/culpability satisfies all the elements of a crime. Co-Perpetrator - where a person acted together with one or more other persons and his/her conduct considering the circumstances and the fault on the side of the person satisfies all the elements of an offence. Please see the case of Everts v S (A497/10) ZAWCHC 246 (31 May 2011). The appellant in this matter was charged with rape with 5 other co-accused of which one passed away before the trial started. The facts were as follows; the accused held the complainant’s hands and shone a torch on her private parts while his co-accused raped her. He was found guilty of Rape as a participant and not an accomplice. The accused appealed against both his conviction and sentence. He was unsuccessful in his appeal against both conviction and sentence and the forms of participation were discussed as well as when a person can be charged as an accomplice. 2) Accomplices – An accomplice is a person whose actions unlawfully and intentionally further, facilitates and or makes possible the commission of a crime by another person. An accomplice’s conduct does not satisfy all the elements of the offence, but his/her conduct makes it possible for the main perpetrator to commit the offence. Please see S v Williams 1980 1 SA 60 (A) 63 where the appellant was charged as an accomplice to murder. The appellant was on a train with his co-accused. One of his co-accused stabbed the deceased with a knife while the appellant held the deceased by the neck. In his appeal there was a discussion if the accused should have been charged with the main count of murder as a co-perpetrator or whether the conviction, by the court, as an accomplice was correct. The conviction was upheld but this judgement has been criticized on numerous occasions by different authors including Snyman stating that the accused should have been charged as a participant and not an accomplice. (Snyman argues that it is not possible for a person to be an accomplice to murder.) - 18 - 3) Accessory – An Accessory after the fact does not comply with the definition of participation since it is clear that the conduct of a perpetrator or an accomplice promotes the commission of an offence before it is completed. An Accessory after the fact is a person that after the commission of the offence assists the perpetrator and or the accomplice to escape liability for the offence that was committed. For Example, A commits murder and then B assists A to get rid of the murder weapon. A is the perpetrator and B is the accessory after the fact. In the unreported matter of S v Norman Nwasheng RC312/14 heard in the High Court of the Gauteng Local Division, judgement date 29/09/2022 the appellant applied for leave to appeal on her conviction as an accessory after the fact. The appellant’s husband was implicated in a number of murder cases. The police were looking for the appellant’s husband and in the process of wanting to arrest the appellant’s husband the appellant blocked all communication with the police even though it was a well-known fact that the appellant’s husband was residing with her at the time of him committing the offences. Due to her actions, it took months for the police to trace the suspect and have him arrested. Her application for leave to appeal was dismissed against the conviction since the Court found that there is no reasonable chance that a Court of higher authority will come to a different conclusion than the trial court. 8. Doctrine of Common Purpose Where two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of the crime is imputed to the others. For perpetrators to be found guilty in terms of the doctrine of Common Purpose it does not have to be proved that there was prior conspiracy. The doctrine is applicable to all offences, except those offences which rely on the Doctrine of Joint Possession (see discussion below). The doctrine of common purpose does not require each participant to know or foresee in detail the exact way in which the unlawful result will be brought about. Please see the unreported matter of Sithole and Another v S (A777/15) ZAGPPHC 169 (20 February 2017) which was referred to the High Court for an appeal on conviction and sentence by the Appeals Court after the trial court refused the appellant’s application for leave to appeal. The appellant in this matter was found guilty of murder, attempted murder, housebreaking with the - 19 - intent to steal and robbery with aggravating circumstances and was sentenced to life imprisonment with a further 40 years’ direct imprisonment. The facts were that the appellant planned the housebreaking with his co-perpetrators, and he was stationed as the watch man. Upon the return of the complainant and the deceased he notified his co-perpetrators that the complainant and the deceased arrived back at the house by whistling. He heard gun shots and he ran away after hearing the gun shots. The trial court found him guilty with his co- perpetrators stating that he had a common purpose with his co-perpetrators to break into the house and must have foreseen the consequences that could follow after such a break in. The High Court dealing with the appeal held that there was insufficient evidence to conclude beyond a reasonable doubt that there was a meeting of the minds in relation to his co- perpetrators shooting and killing the complainant and the deceased and that on these facts the doctrine of common purpose could not be stretched that far. His appeal against his convictions on murder and attempted murder was upheld but his appeal against the charge of Housebreaking with the intent to steal and robbery with aggravating circumstances was dismissed. 9. Possession/Joint Possession Possession is established by a two-legged question: 1) Did the person have physical possession or custody or control over an item? This test is objective in nature. 2) Did the person have the intent to exercise control over the item? This test is subjective in nature. If both of these elements are not present it cannot be said that a person possessed an item. The size and nature of an item must be taken into account, for example: a firearm as opposed to motor vehicle. A firearm is smaller and much easier for a person to exercise physical possession over it whereas, a motor vehicle due to its size, the question would be whether the person exercised control over it. The second leg determines the intention of the person who has physical control over an item. - 20 - The person must be aware of the object in his possession. It is not required that he have the intention to be the owner of the object or that the holder intended to exercise control for his own purpose or benefit. The State must prove that a person had detention, custody or control of the object and that he was aware of the possession. The meaning of possession can thus be summarized as follows: Possession = physical possession + knowledge of possession OR Possession = Direct control/custody + knowledge of possession Joint Possession requires that the State prove that both or all parties had knowledge of the possession of the item and that all parties intended that the item should be held/controlled/possessed on his/her behalf. In the matter of S v Masilo 1963 4 SA 918 (T) the driver of a motorcar picked up a passenger, whilst knowing that the passenger was in possession of dagga. Both of the accused were found guilty of possession of the dagga. In the matter of S v Mbuli 2003 (1) SACR 97 (SCA) the court held that Common purpose, and joint possession, both require that the parties concerned share a common state of mind but the nature of that state of mind will differ in each case. The issues which arise in deciding whether a group possessed firearms or explosives must be decided with reference to the answer to the question whether the State has established facts from which it can properly be inferred by a court that (a) the group had the intention to exercise possession of the guns through the actual detentor and (b) the actual detentors had the intention to hold the guns on behalf of the group. Only if both requirements are fulfilled can there be joint possession involving the group as a whole and the detentors. Mere knowledge by the others that one of the accused had been in possession of a hand grenade, and even acceptance by them in its use for fulfilling their common purpose to commit robbery, was not sufficient to make them joint possessors for purposes of the Act. The evidence did not establish which of the accused had been in possession of the hand grenade and they had been entitled to be acquitted. 10. Executive Statements: Statements made in execution of conspiracy or common purpose have been admitted against co-conspirators. The judgment of Squires J in S v Shaik 2007 (1) SACR 247 (SCA) at 168- 169 allows an executive statement to be received in evidence, but unfortunately does not deal - 21 - in detail with the legal principles or reconcile the principle with constitutional values. Although it is not entirely clear, the SCA in the Shaik appeal seems to say that executive statements which are adduced to prove the truth of their contents should be dealt with under the statutory law relating to hearsay evidence. An executive statement can be seen as an exception to the hearsay rule. The only admissibility requirement is that the statement made was done so voluntarily. B. SPECIFIC OFFENCES 1. COMMON LAW CRIMES 1.1. Public Violence Public Violence is defined as the unlawful, intentional commission, together with a number of people, of an act or acts which constitute a serious breach of the public order or peace and tranquillity. Resultantly public violence is not constituted by a protest, it must be punctuated with actual or serious threats of violence and must be committed by more than one person to be an offence – Cele v S 1958 1 SA 144 (N). 1.2. Contempt of Court Contempt of court consists of unlawfully and intentionally violating the dignity, reputation or authority of a judicial officer in their judicial capacity OR - 22 - by publishing information/comment concerning a pending judicial proceeding which may constitute a real risk of improperly influencing the outcome of the proceedings or to the prejudice of the proper functioning of the administration of justice in those proceedings – Midi Television (PTY) Ltd v DPP: Western Cape 2007 (3) SA 318 (SCA) at para 19 - In summary, a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Contempt of court may occur in facie curiae or ex facie curiae. The difference is simple, in facie curiae refers to conduct that infringes on the court whilst in the presence of the presiding officer. This means it occurs in “open court” – R v Magerman 1960 (1) SA 184 (O). Whereas contempt of court, ex facie curiae, will occur not in the presence of the presiding officer. Intention in the form of dolus eventualis will suffice in cases of contempt of court – S v Nel 1991 (1) SA 730 (A). 1.3. Defeating or Obstructing the Course of Justice The above-mentioned crime consists of the unlawful and intentional engagement of conduct which amounts to the course justice being defeated or obstructed. There is a marked difference between defeating and obstructing the course of justice. A person can only be convicted of defeating the course of justice if it is proven beyond a reasonable doubt that justice has been defeated by the conduct of the accused, whereas in the case of obstructing the State must prove that the course of justice was merely obstructed or subverted. It has been held that the course or administration of justice refers to a process which is destined to end up in a court case – S v Bazzard 1992 (1) SACR 302 (NC) - 23 - 1.4. Perjury Perjury consists of the unlawful and intentional making of a false statement in the course of judicial proceedings, by a person who has taken the prescribed oath or has made an affirmation before a person or judicial officer who is competent to administer and/or accept the oath, affirmation or admonition. The false statement referred herein may consist of either a verbal statement or an affidavit - S v Ncamane ZAFSHC 220 at para 5. Perjury can only be committed if the statement was made during the course of judicial proceedings - S v Carse 1967 (2) SA 659 (C). The courts (R v Beukman 1950 SA 261 (O) and Carse supra) have held that the term judicial proceedings are not confined to proceedings in a court of law. As such a false affidavit affixed to civil proceedings will qualify for a charge of perjury, however a statement made on oath to the police in which a false criminal charge is laid will not – (Beukman supra). 1.5. Murder Murder is the unlawful and intentional causing of the death of another human being. The causing of a death of another human may be caused by either an act or an omission. The death caused must be of another human being, as such suicide or attempted suicide is not a crime in law. As explained in Director of Public Prosecutions, Gauteng v Pistorius ZASCA 204 at para 26 - In cases of murder, there are principally two forms of intention which arise: dolus directus and dolus eventualis. These terms are nothing more than labels used by lawyers to connote a particular form of intention on the part of a person who commits a criminal act. In the case of murder, a person acts with dolus directus if he or she committed the offence with the object and purpose of killing the deceased. - 24 - Dolus eventualis, on the other hand, although a relatively straightforward concept, is somewhat different. In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person’s intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore ‘gambling’ as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act ‘reckless as to the consequences’ (a phrase that has caused some confusion as some have interpreted it to mean with gross negligence) or must have been ‘reconciled’ with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent. 1.6. Culpable Homicide Culpable Homicide is the unlawful, negligent causing of the death of another human being. Culpable Homicide and murder differ in only one sense, namely the form of mens rea. For purposes of conviction the court must ask itself the following: (a) whether a reasonable person in the same position and circumstances of the accused would have foreseen the possibility that the deceased’s death may result from his conduct; (b) whether the reasonable person would have taken steps to guard against this possibility - 25 - (c) whether the conduct of the accused differed or deviated from the conduct of a reasonable person in the circumstances There can be no attempt to commit Culpable Homicide, this is because a person cannot intend to be negligent. As intention is a requirement for an attempt, one cannot attempt to commit culpable homicide. 1.7. Assault Assault consists of the unlawful and intentional impairment of another person’s bodily integrity either directly or indirectly, or: the unlawful and intentional inspiration of a belief in another person that such an impairment of their bodily integrity will take place immediately. The slightest contact is sufficient for purposes of the definition - R v Herbert (1900) 10 CTR 424) For an assault to be committed where no physical contact takes place there must be a threat of immediate personal violence. When the threat is conditional or directed at the future, there will be no assault. The circumstances of the threat must be of such a nature that the complainant believes that the accused has the intention and the ability to execute the threat at that moment. 1.8. Assault with the intent to do Grievous Bodily Harm Assault with the intent to do grievous bodily harm consists of the unlawful and intentional application of force on another human being with the intention of causing grievous bodily harm. Whether the accused actually causes grievous bodily harm to the victim is irrelevant in determining liability for the offence. This is so because assault with intent to do grievous bodily - 26 - harm can be committed without complainant having sustained any injury - S v Dube 1991 (2) SACR 419 (ZS) at 422 d-g. The following factors are considered when establishing if an accused had the intention to cause grievous bodily harm: (a) The nature of the weapon and the manner in which it was used; (b) the extent of the violence and how the injury was inflicted; (c) the part of the body to which the blow was directed; (d) the nature of the injuries, if any, sustained. 1.9. Crimen Iniuria Crimen Iniuria consists of the unlawful and intentional serious violation of another person’s dignity or privacy. The interests of the victim of this crime that are protected are found under the broad Latin term dignitas – this term covers all objects protected by the rights of personality, other than reputation and bodily integrity. This may include both a person’s dignity – S v Jana 1981 (1) SA 671 (T) - wherein the court found that dignitas included “that valued and serene condition in his social and individual life which is violated when he is, either publicly or privately, subjected by another to offensive and degrading treatment, or when he is exposed to ill-will, ridicule, disesteem or contempt”.– R v Holliday 1927 CPD 395 – here the court found that watching another person undressing without that person’s awareness will be an infringement of their right to privacy. When dealing with crimes committed against the dignity of another person we would use the subjective test to determine whether there has been an infringement of that person’s dignity. The subjective test is the following: In instances of infringement of dignity the victim must: (a) Be aware of the accused’s offending behaviour (b) Feel degraded or humiliated by it - 27 - The objective test is used when dealing with violations of privacy, the objective standard being the accused persons conduct must be of such a nature that it would offend at least the feelings of a reasonable person. If the victim happens to be so timid or oversensitive that he takes offence at conduct that would not affront a reasonable person, the law should not presume that a crime has been committed. 1.10. Criminal Defamation Criminal Defamation consists of the unlawful and intentional publication of a matter concerning another which tends to injure their reputation - Hoho v The State (493/05) ZASCA 9 at para 23 In a unanimous judgement the court in Hoho supra held that the crime had not ceased to exist due to disuse, that there are also no good reasons why it should not exist anymore and that furthermore the existence of the law is compatible with the constitution. The court further held that the violation of other people’s reputations is criminal. The court also held that the de minimus rule may be applied in less serious cases. This crime may only be committed if publication occurs, without publication the accused may only be tried for crimen Iniuria. 1.11. Kidnapping The offence of kidnapping consists of the unlawful and intentional deprivation of a person’s freedom of movement, and/or if the victim is under the age of 18, the legal custodians of the said child, of their control of the child. A parent cannot commit the crime in respect of their own child – S v Hoffman 1983 (4) SA 564 (T). However, if there is a parenting plan that has been made an order of the court and the said parent acts contrary to that order he may be charged with contempt of court. - 28 - The duration which the victim is held in respect of the kidnapping is not relevant to the commission of the offence. As such deprivation of freedom of movement for a few hours has been held to be sufficient for purposes of the offence - S v F 1983 (1) SA 747 (O) wherein the court held that the kidnapping of only 40 minutes was sufficient for the offence to have been regarded as completed. 1.12. Theft Theft is defined as the unlawful and intentional appropriation of another person’s corporeal or incorporeal property with the intention to permanently deprive that person of their property. An act of appropriation in respect of theft is where the accused person: (i) Deprives the lawful owner or possessor of his property; and (ii) Acts or exercises the rights of the property as though he is the owner of the said property – In Nkosi v S 2012 1 SACR 87 (GNP) states at para 20 - the principle that a mere assumption of control over the property is not yet sufficient to constitute theft, but it should further be required that the owner effectively be excluded from his property. Incorporeal property is property that is capable of being stolen as per Section 12(1) of the Cyber Crimes Act 19 of 2020 - The common law offence of theft must be interpreted so as not to exclude the theft of incorporeal property. In S v Ndebele 2012(1) SACR 245 (GSJ) the court thoroughly discussed the issue of an incorporeal object as far as it relates to electricity and ultimately holds that electricity can be stolen. The Supreme Court of Appeal held in Boesak v S 2000 (1) SACR 633 SCA at para 97 – The intention to steal is present where a person; (1) intentionally effects an appropriation (2) intending to deprive the owner of his property permanently (3) knowing that the property is capable of being stolen (4) knowing that he is acting unlawfully when taking the property - 29 - Husband and wife The husband's marital power has been abolished, regardless of whether the parties are married in or out of community of property and the wife has the same powers as the husband in such a marriage. Both parties can thus be guilty of theft of matrimonial property. Reckless abandonment A person who unlawfully borrows a thing without the owner's consent and then abandons it is no longer regarded as the "unauthorised borrower", but as a thief. It is his intention at the time of abandonment and not his intention at the time of the taking of the property which is relevant. Ownership as element of the offence It is an accepted fact that res nullius cannot be stolen. This principle contributes to the usual practice of prosecutors to allege in charge sheets to whom the stolen property belongs if the information is available to them. It however frequently happens that this information is not readily available. In an effort to solve this problem, the legislature promulgated section 84(2) of the Criminal Procedure Act, 1977 (Act 51 of 1977). In terms of this section, the prosecutor may allege that the owner is “unknown” to him. This section confirms the principle that ownership is not an element of the offence of theft. It is not incumbent on the state to prove to whom the allegedly stolen goods belong. However, where the State is unable to establish ownership of the property, the State must prove that the property is not res nullius. (S v Kariko A O 1998(2) SACR 531 Nm) In the lawful possession of …… Is lawful possession a prerequisite for theft? A person who steals from a thief, is also guilty of theft. (Twala 1952(2) SA 599 (A)). It is not the unlawful possession of the thief that is protected, but his de facto possession. Theft before reaching pay-point? In Lujaba 1987 (1) SA 226 (A) 233 the court accepted that a complete theft could be committed in a shop, even before the thief approached the pay-point. Assumption of control by the thief is sufficient for completed theft. Loss of control by the owner is not required. - 30 - Theft a continuing crime Our Courts regard theft as a continuing crime. For this reason, a person can be tried in the area of jurisdiction where he is apprehended with the property although he may have stolen it in another area of jurisdiction. Multiple persons can be convicted for theft of the same property, even if they each possessed the property at different times, provided that they each had knowledge that the property was stolen. However, if they only suspected that the property was stolen – they should be charged with contravention of S36 of the General Law Amendment Act 62/1955 – see requirements below. 1.13. S36 of the General Law Amendment Act 62/1955 This is not a common law offence – however, it is a competent verdict on the common law crime of Theft or Receiving Stolen Property knowing it to be stolen. S36 of the Act, as mentioned above, was enacted in order to alleviate some issues that the State encountered when trying to prove theft or receiving property knowing it to have been stolen. S36 consists of a failure by any person to give a satisfactory account for any goods other than stock or produce, found in his/her possession, in regard of which there is a reasonable suspicion that they have been stolen and is unable to give a satisfactory account for such possession. The offence can only be committed if a person is found in possession of such goods at the time or moment that the goods are found by the police. Furthermore, the police must have a reasonable suspicion that the goods have been stolen. The test used is that of a reasonable man. The accused person must furthermore fail to give a satisfactory account for his possession of the property. This will only be determined if the State can prove the first two parts of the offence. A satisfactory account would include (a) is the explanation reasonably possible (b) the belief that the possession of the goods was bona fide. Generally, this means that the accused must state where he received the goods from or as to how they came to be in his possession. - 31 - NOTE: Section 36 applies if it is not possible for the prosecution to prove that the goods are stolen. If it is possible for the prosecution to prove that the goods are stolen, the accused ought to be charged with theft or section 37 of Act 62 of 1955 – receiving stolen property without reasonable cause. 1.14. Robbery The crime of robbery consists of the unlawful and intentional taking of another person’s property whilst using violence or the threats of violence in order to take the said property. As such the crime of Robbery is intermingled with that of Assault and Theft, as it is a combination of the two crimes to form Robbery. Resultantly robbery is often referred to as “Theft by Violence” – Benjamin v S 1980 (1) SA 950 (A). The property that is taken must be obtained by the accused as a result of the violence or the threat of violence. As such if the accused takes property that is in the possession of a victim and thereafter assaults the victim, he would have committed two separate offences. The converse would hold true if the accused assaults the victim and thereafter by chance notices that some the property belonging to the victim has fallen down, he then decides to steal the property of the victim. He would be guilty of assault and theft. There must be a causal link between the threat or violence and the taking of property. The premise is that the violence must precede the taking, and that robbery is not committed if the violence is used to retain a thing already stolen or to facilitate escape. This rule must however be qualified: robbery may in certain circumstances be committed even though the violence follows the completion of the theft. This will be the case, if having regard to the time and place of the act, there is such a close link between the theft and the violence that they may be regarded as connecting components of one and the same action. Thus, in Yolelo 1981 (1) SA 1002 (A) the accused was found in possession of the complainant`s goods before he could leave the complainant`s house. The ensuing assault on the complainant was regarded as so - 32 - closely connected with the process of taking the property that the accused was convicted of robbery. Handbag or other item snatching amounts to robbery. In Sithole 1981 (1) SA 1186 (N) the court confirmed: "The intention with which and the purpose for which the violence is used in committing a theft are all-important considerations in determining whether the taking amounts to robbery. For taking of property to amount to robbery the violence must be directed against the person of the victim and with the intention of overcoming, preventing or forestalling resistance from the victim to the taking of his property. For handbag-snatching to amount to robbery it is sufficient if the culprit intentionally uses force in order to overcome the hold which the victim has on the bag for the purpose of ordinarily carrying or holding it, or if the culprit intentionally uses force to prevent or forestall resistance which he thinks might be offered to the taking if the victim were to become aware of his intention. It is not necessary that the victim should actually have offered resistance to the taking or that she should have held onto the bag with the specific intention of denying the culprit possession of it." 1.15. Fraud Fraud is defined as the unlawful and intentional making of a misrepresentation which causes actual prejudice or potential prejudice to another person. In this situation an accused makes a representation about a fact or facts which in reality do not exist, as such he makes a misrepresentation. The misrepresentation may take the form of spoken or written words, other conduct may also be sufficient, such as a nod of the head – Mdantile v S (2011) 2 SACR 142 ZAFSHC at para 29 - The first requirement for fraud is that there must be a misrepresentation or, as it has been expressed, ‘a perversion of the truth’. The accused must represent to the complainant that a fact or set of facts exists which in truth does not exist. Usually, the misrepresentation takes place by means of spoken or written words, but it can also take place by conduct. It is possible to make a representation leading to liability for fraud even if the misrepresentation is not made to another person, but to a computer or a machine. If the accused discovers the “PIN” of another person and transfers money, the accused falsely and impliedly represents to - 33 - the bank`s electronic system that it is the account holder who is actually transacting or that it is being done with the permission of the account holder. Van der Berg 1991(1)SACR 104 (T) Prejudice may consist of either actual or potential prejudice. The prejudice suffered need not be accompanied by monetary or patrimonial loss. Potential prejudice means that there is a reasonable prospect of prejudice being suffered. It must not be a remote or fanciful prospect - Mngqibisa v S (2007) SCA 119 (RSA) at para 12 – “I am therefore satisfied that potential prejudice was shown on the facts before us which was neither too remote nor fanciful. It is of no assistance to the appellant that he subsequently told the truth. Potential prejudice is occasioned at the time of making the false representation and this must be determined on the facts of each case.” There must be a causal connection between the misrepresentation and the prejudice or potential prejudice. The misrepresentation must lead to a result, namely prejudice or potential prejudice. The person to whom the misrepresentation is made need not necessarily be the person who is prejudiced. A third person can be prejudiced. Whether the person to whom the representation is made, is aware of the fact that it is false is irrelevant. The law looks at the matter from the deceiver's point of view. If he had the intention to deceive, it is immaterial whether there is actual or merely potential prejudice. In S v Swarts 1961 (4) SA 589 (G) it was held that fraud is committed even if the misrepresentation is made to a police trap (agent) who is well aware of the misrepresentation. The learned Judge expressed his view of the law in the following terms: 'If the misrepresentation is one which in the ordinary course is capable of deceiving a person, and thus enabling the accused to achieve his object, the fact that the person to whom the misrepresentation is made has knowledge or a special state of mind which effectually protects him from all danger of prejudice does not entitle the accused to say that the false representation was not calculated to prejudice.’ 1.16. Forgery and Uttering of a forged document - 34 - Forgery consists in the unlawful and intentional making of a false document to the actual or potential prejudice of another. In this way forgery may be seen as species of fraud, herein the only way to commit forgery is by the falsification of a document. Apart from this all of the requirements for the crime of fraud must be present. A document is not forged merely due to the fact that it contains false statements, in other words a lie reduced to writing does not become a forgery. The falsification must relate to the document itself, by either an alteration, substitution, addition, or erasure. Uttering consists of unlawfully and intentionally passing off a false document to the actual or potential prejudice of another person. Uttering is also another species of fraud. In most cases the person who forged the document is also the person who utters the forged document. In such a situation they will be charged with both forgery and uttering. In the case of a person not being the person who forged the document they will solely be charged with uttering. 1.17. Malicious Injury to Property Malicious injury to property consists of the unlawful and intentional damaging of another person’s property. In Mnyandu 1973 (4) SA 603 (N) Henning J defines it as: - Malicious injury to property is the wrongful and intentional damaging of a thing belonging to somebody else or in which another person has a substantial interest. The crime may be committed in respect of one’s own property provided that the victim has a substantive right in that property or is in lawful possession of the said property with a right of retention. - 35 - Damage as per the definition is commonly understood to mean either total or partial destruction of the property, however the damage may not be trivial – wherein a person cuts the grass of a neighbour without consent, that would be deemed to be a triviality. The test is not whether the property's structure or appearance has been so damaged that the original form has changed, but whether the complainant suffered costs or inconvenience (Snyman (504) "cost the owner money,... effort, or labour to restore it to its original form.") Property which is of sentimental value to its owner may be damaged (Snyman (536)), even though it has no commercial value. With regards to intention, there is no need for the State to prove malice, rather the ordinary principles of criminal law dealing with intention apply to the accused – Biyela v S (2021) ZAKZPHC 20 at para 45 - The form of mens rea required for this crime is intention and the ordinary principles of criminal law relating to intention apply. 1.18. Arson Arson may be defined as the unlawful and intentional setting of fire to immovable property belonging to another or to his own immovable property with the intention to injure another person or to defraud another person The second part of the definition above is directly taken from Mavros v S 1921 AD at para 22 - ‘In my opinion, therefore, we should sanction that procedure by holding that the crime of brandstichting (Roman-Dutch law) is committed by a man who sets fire to his own house wrongfully, maliciously and with intent to injure or defraud another person.’ This was confirmed by the full bench of the Supreme Court of Appeal in Dalindyebo v S (2015) ZASCA 144. The property that is damaged or destroyed must be immovable property, setting fire to movable property would amount to Malicious Injury to Property. Property is regarded as immovable if it cannot be physically moved from one place to another without it being damaged or its appearance being changed. - 36 - 1.19. Housebreaking with intent to commit a crime Housebreaking with the intent to commit a crime consists of the unlawful and intentional breaking into and entering a building or structure with the intention to commit a crime inside the said building or structure. Housebreaking alone is not a crime, although the act may constitute other crimes (malicious injury to property or contravention of the Trespass Act). The housebreaking must be accompanied by the intention of the accused of committing another crime as well. In principle charges of Housebreaking with the intent to commit any crime is competent in law – as per S v M 1989 (4) SA 718 (T), however care must be taken by the prosecutor when formulating charges such as these when dealing with offences in which a minimum sentence may be imposed – In S v Maswetsa (2013) ZAGPJHC 122 the court cautioned the State at para 8 - It would consequently be desirable that, because of the provisions of the Criminal Law Amendment Act, charges be framed in such a manner in order to separate the allegations of housebreaking with intent to commit an offence from substantive charges such as robbery and all other charges where a minimum sentence is prescribed upon conviction. It is also sufficient for the state to charge the accused person for Housebreaking with the intent to commit a crime unknown to the prosecutor – S262 and S263 of the Criminal Procedure Act 51/1977 which is confirmed in Bam v S (2020) ZAWCHC 68 at para 25 - Thus, the crime is charged as one of housebreaking with intent to commit a specific offence, or in the event that the offence is unknown to the prosecutor, the accused may be charged in such terms. The act is then separated into two aspects, namely (1) Breaking and (2) Entering. For breaking to occur no actual damage to the structure needs to occur, breaking will consist of any removal or displacement of any obstacle which may prevent access or entry to the structure itself, and it must also form part of the structure itself. However, walking through an open door will not constitute breaking. Entering or entry is complete the moment that the accused has inserted any part of his body or any instrument into the property or structure. - 37 - 1.20. Trespassing Section 1(1) of the Trespass Act 6 of 1959 provides that any person who without the permission – (a) of the lawful occupier of any land or any building or part of a building; or (b) of the owner or person in charge of any land or any building or part of a building that is not lawfully occupied by any person, enters or is upon such land or enters or is in such building or part of a building, shall be guilty of an offence unless he has lawful reason to enter or be upon such land or enter or be in such building or part of a building. The conduct of an accused person that is being punished is the unlawful and intentional entering of another person’s property (land or building) or being upon the property (land or building) without the consent of the owner or lawful possessor. Entry in this definition means the physical boundaries of the land or property of the victim. The accused must be physically present on the property to constitute entry. The accused does not commit the offence if he has lawful reason to enter or be on the land or building or part of the building. 2. STATUTORY OFFENCES 2.1. THE FIREARMS CONTROL ACT 60 OF 2000, AS AMENDED 2.1.2. Unlawful possession of firearms – S.3 Offences in relations to the Firearms Control Act are contained in section 120 and the penalties are contained in section 121. It must also be noted that minimum sentences apply to certain offences in terms of the Firearms Control Act, and is discussed below. Section 3; - 38 - “Any person who has in his possession any firearm, unless licensed to possess such firearm, commits an offence. The onus of proving that the accused was licensed, permitted by permit or authorized to possess the firearm rests on the accused and it is thus not necessary for the prosecution to allege and prove such lack of licence” - Section 250(1) of the Criminal Procedure Act 51 of 1977. The elements of this offence are: that the accused (i) unlawfully (ii) possessed (iii) a firearm (iv) mens rea (Intent). The Act defines the word 'firearm' to mean any “(a) device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant, at a muzzle energy exceeding 8 joules (6 ft-lbs); (b) device manufactured or designed to discharge rim-fire, centre-fire or pin-fire ammunition; (c) device which is not at the time capable of discharging any bullet or projectile, but which can be readily altered to be a firearm within the meaning of (a) or (b); (d) device manufactured to discharge a bullet or any other projectile of a calibre of 5.6mm or higher at a muzzle energy of more than 8 joules (6 ft-lbs), by means of compressed gas and not by means of burning propellant; or (e) barrel, frame or receiver of a device referred to in paragraphs (a), (b), (c), or (d), but does not include a muzzle loading firearm or any device contemplated in section 5. S v Makhubela 2017 (2) SACR 665 (CC) where it was confirmed that the principles of common purpose do not apply where firearms were used in the course of robbery or housebreaking, but rather the principles of joint possession. Also see S v Nkosi 1998 (1) SACR 284 (W). On 286 g the court discussed the principle involved as follows: “The issues which arise in deciding whether the group (and hence the appellant) possessed the guns must be decided with reference to the answers to the question whether the State has established facts from which it can properly be inferred by a court that: (a) the group had the intention (animus) to exercise possession of the guns through the actual detentor and - 39 - (b) the actual detentor had the intention to hold the guns on behalf of the group.” Section 4 of the Act reads as follows: “4. (1) The following firearms and devices are prohibited firearms and may not be possessed or licensed in terms of this Act, except as provided for in sections 17, 18(5), 19 and 20(1)(b): (a) Any fully automatic firearm; (b) any gun, cannon, recoilless gun, mortar, light mortar or launcher manufactured to fire a rocket, grenade, self-propelled grenade, bomb or explosive device; (c) any frame, body or barrel of such a fully automatic firearm, gun, cannon, recoilless gun, mortar, light mortar or launcher; (d) any projectile or rocket manufactured to be discharged from a canon, recoilless gun or mortar, or rocket launcher; (e) Any imitation of any device contemplated in paragraph (b), (c) excluding the frame, body or barrel of a fully automatic firearm, or (d); (f) any firearm- (i) the mechanism of which has been altered so as to enable the discharging of more than on shot with a single depression of the trigger; (ii) the calibre of which has been altered without the written permission of the Registrar; (iii) the barrel length of which has been altered without the written permission of the Registrar; (iv) the serial number or any other identifying mark of which has been changed or removed without the written permission of the Registrar.” It is important to note that even a home-made firearm will classify as a firearm provided that one of the requirements of section 3 is met. For purposes of this study 3 different firearms are mentioned; 1. A semi-automatic firearm, also called a self-loading or auto loading firearm is a repeating firearm whose action mechanism automatically loads a following round into the chamber and prepares it for subsequent firing, but requires the shooter to - 40 - manually actuate the trigger in order to discharge the shot. These firearms include pistols. 2. An automatic firearm is also a self-loading firearm, but continuously chambers and fires rounds when the trigger mechanism is actuated. These firearms include what is commonly referred to as machine guns. The difference between the two is simply that a semi-automatic firearm fires one shot every time the trigger is pulled whereas the automatic weapon fires continually until the trigger is released. 3. The third category is then those firearms that are not semi-automatic or fully automatic such as revolvers. In layman’s terms Section 3 prohibits the possession of a firearm that has a serial number, without a licence. Section 4 (prohibited firearms) prohibits the possession of a firearm without a serial number. Section 4 further provides that an automatic firearm is a prohibited firearm, irrespective of whether it has a serial number or not. It is obvious that firearms without serial numbers cannot be licenced and Section 4 thus deals with firearms for which a licence to possess cannot be issued and includes automatic firearms. (automatic firearms are usually used by SAPS or the defence force and a private individual cannot obtain a licence for it) The contravention of section 4 – possession of a prohibited firearm – is thus always applicable for the unlawful possession of an automatic firearm. If the person was unlawfully in possession of either a ‘’normal’’ firearm (neither automatic or semi-automatic) such as a revolver or a semi-automatic firearm that has a serial number, section 3 of the Act is applicable. In other words, the person was found in possession of a firearm that may be licenced, but the possessor did not have a licence to possess such firearm. If the person was unlawfully in possession of either a ‘’normal’’ firearm (neither automatic or semi-automatic) such as a revolver or a semi-automatic firearm that has no serial number, section 4 of the Act is applicable. In other words, the person was found in possession of a firearm that may not be licenced. It is important to note that the Act does not provide for a separate offence relating to semi- automatic firearms and just as in the case of a ‘normal firearm” the only decision the prosecutor is faced with is whether section 3 or section 4 is applicable. It is however of the utmost - 41 - importance to note in the charge sheet that a semi-automatic firearm is involved because minimum sentences are applicable to semi- automatic firearms. When a person is in possession of a firearm without a serial number, that person is in possession of a prohibited firearm and at the same time also in possession of the firearm without a licence. As such, the application of section 3 and section 4 overlap in these circumstances. Although the court in Sehoole (730/13) ZASCA 155 (29 September 2014), ruled that the state, as dominus litis, is entitled to charge the accused with any one of the two sections, it is imperative to charge under section 4 where applicable because the Firearms Control Act, 2000, provides the court with sentencing jurisdiction of up to 25 years in the case of prohibited firearms. The best way of proving that the particular arm has the qualities defined in the definitions would be to involve the experts of the Forensic Laboratories of the South African Police Services. Their evidence contained in affidavits in terms of section 212(4)(a) of the Criminal Procedure Act, 1977 (Act 51 of 1977) must be submitted to a court and such evidence will be prima facie proof of the issue. Please see the discussion of section 212 of the Criminal Procedure Act 51 of 1977. 2.1.2. Unlawful possession of ammunition – S.90 Section 90; “Any person who unlawfully possesses any ammunition commits an offence. 1 The elements of this offence are: that the accused (i) unlawfully (ii) possessed (iii) ammunition (iv) mens rea (Intent). Possession of ammunition is considered unlawful only were the accused did not lawfully possess either a firearm capable of discharging that ammunition; 2 or possessed a permit or licence for such ammunition or was otherwise authorised to be in the possession of such ammunition. A lawful reason to possess ammunition exists only where the accused is duly licensed or falls within one of the exceptions created in the Act, namely (a) holding a licence in respect of a firearm capable of discharging that ammunition; (b) holding a permit to possess ammunition; (c) holding a dealer's licence, manufacturer's licence, gunsmith's licence, import, - 42 - export or in-transit permit or transporter's permit issued in terms of this Act; or (d) otherwise being authorised to do so. The Act defines ammunition as a primer or complete cartridge. A 'cartridge' is in turn defined as a complete object consisting of a cartridge case, primer, propellant and bullet. Lead pellets discharged from an air-rifle are thus not ammunition for purposes of the Act.” Offences and Penalties; As mentioned above the offences for this Act are created in section 120 and the penalties in section 121 which reads as follows; “Any person convicted of a contravention of or a failure to comply with any section mentioned in Column 1 of Schedule 4, may be sentenced to a fine or to imprisonment for a period not exceeding the period mentioned in Column 2 of that Schedule opposite the number of that section” Section 3, 4 and 90 as discussed above all fall within Schedule 4 column 1. The maximum sentences as per column 2 of Schedule 4 for the three offences as discussed are as follows; Section 3 – Maximum period of imprisonment 15 years Section 4 – Maximum period of imprisonment 25 years Section 90 – Maximum period of imprisonment 15 years. Minimum Sentences applies in relation to the possession of automatic or semi-automatic firearms as they form part of the offences as listed in Part II of Schedule 2 of the Criminal Law Amendment Act 105 of 1997. Section 51(2) of the Criminal Law Amendment Act 105 of 1997 read with Part II of Schedule 2 of the same act reads as follows; “Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in- (a) Part II of Schedule 2, in the case of – (i) a first offender, to imprisonment for a period not less than 15 years; - 43 - (ii) a second offender of any such offence, to imprisonment for a period not less than 25 years. (iii) a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years……………” In Tshabalala 2006 (1) SACR 120 (WLD), the court remarks as follows with reference to contraventions of section 4: “ The Legislature could not have intended providing for a fine to be imposed as an alternative to any of these very heavy sentences.” but adds “It follows that the words ‘ a fine or….imprisonment’ in s 121 do not mean that a fine must always be imposed, or that imprisonment alone may not be imposed.” In the matter of Motloung 2016 (2) SACR 243 (SCA), the Supreme Court of Appeal ruled that the Firearms Control Act 60 of 2000 has not impliedly repealed s 51(2) of the Criminal Law Amendment Act 105 of 1997. The National Director of Public Prosecutions can elect whether to prosecute under the Firearms Control Act or the Criminal Law Amendment Act 105 of 1997, or both when it comes to sentencing purposes. 2.2. DRUGS AND DRUG TRAFFICKING ACT 140 OF 1992 2.2.1. Manufacture and supply of scheduled substances – S.3 “Section 3 provides as follows: "Manufacture and supply of scheduled substances. No person shall manufacture any scheduled substance or supply it to any other person, knowing or suspecting that any such scheduled substance is to be used in or for the unlawful manufacture of any drug." The punishable act in this case consists of the "manufacture" or "supply". Without limiting the general meaning of "manufacture", section 1 defines it as: "..., in relation to a substance, includes the preparing, extraction or producing of the substance." "Scheduled substance" as defined in section 1 means: "any substance included in Part I or II of Schedule 1." Schedule 1, as mentioned, lists substances useful for the manufacture of drugs and includes the salts of the substances. Evidence as to the chemical composition of - 44 - the substance will in all likelihood have to be presented in order to prove that the alleged substance is a schedule I substance. A qualifying element is added in the prohibition, that is, it must also be proved that the accused person knew or suspected that the scheduled substance was to be used for the unlawful manufacture. "Drug" is defined in section 1 as meaning "any dependence producing substance, any dangerous dependence producing substance or any undesirable dependence producing substance." The possible reason for this qualification is that some of the scheduled substances, acetone for example, is freely available, for instance, from a paint supplier. Proof of this particular element, because of the subjective nature thereof, could be difficult and would probably, in the majority of instances, be provided by way of circumstantial evidence. Please see S v Nkosi (CA156/06) ZAGPHC 85 (5 March 2008) where the appellant in the matter appealed her conviction based on the fact that the trial court found her guilty on circumstantial evidence only. The appellant worked as a security officer at a premise where the police found a functioning Mandrax Laboratory. There was no direct evidence against the appellant that she was linked to the Laboratory. The State therefore presented circumstantial evidence which the trial court found sufficient beyond a reasonable doubt to convict the appellant. On appeal the Court found that for each piece of circumstantial evidence that the State presented the appellant had a reasonable explanation and even though the trial court found the appellant not to be credible, that should not be the only consideration for a conviction. The circumstantial evidence should be of such a nature that the only conclusion that the Court can draw is that the appellant is guilty of the offence. The appellant’s appeal was upheld and the conviction against her was set aside. 2.2.2. Use And Possession Of Drugs – S.4 Section 4 provides as follows: "Use and possession of drugs. No person shall use or have in his possession (a) any dependence producing substance; or (b) any dangerous dependence producing substance or any undesirable dependence producing substance, - 45 - unless (i) he is a patient who has acquired or bought any such substance (aa) from a medical practitioner, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder; or (bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, dentist or practitioner, and uses that substance for medicinal purposes under the care or treatment of the said medical practitioner, dentist or practitioner, (ii) he has acquired or bought any such substance for medicinal purposes (aa) from a medical practitioner, veterinarian, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder; (bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner; or (cc) from a veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian, with the intent to administer that substance to a patient or animal under the care or treatment of the said medical practitioner, veterinarian, dentist or practitioner; (iii) he is the Director General: Welfare who has acquired or bought any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder; (iv) he, she or it is a patient, medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer, of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to administer, supply, sell, transmit or export any such substance in accordance with the requirements or conditions of the said Act or regulation, or any permit issued to him, her or it under the said Act or regulation; (v) he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who has acquired, bought, imported, cultivated, - 46 - collected or manufactured, or uses or is in possession of, or intends to supply, sell, transmit or export any such substance in the course of his employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation; or (vi) he has otherwise come into possession of any substance in a lawful manner." 2.2.3. Dealing in Drugs – S.5 “Section 5 provides as follows: "Dealing in drugs. - No person shall deal in (a) any dependence-producing substance; or (b) any dangerous dependence-producing substance or any undesirable dependence- producing substance,unless- (i) he has acquired or bought any such substance for medicinal purposes - (aa) from a medical practitioner, veterinarian, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder; (bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner; or (cc) from a veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian, and administers that substance to a patient or animal under the care or treatment of the said medical practitioner, veterinarian, dentist or practitioner; (ii) he is the Director-General: Welfare who acquires, buys or sells any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder; - 47 - (iii) he, she or it is a medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which prescribes, administers, acquires, buys, tranships, imports, cultivates, collects, manufactures, supplies, sells, transmits or exports any such substance in accordance with the requirements or conditions of the said Act or regulation, or any permit issued to him, her or it under the said Act or regulation; or (iv) he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who acquires, buys, tranships, imports, cultivates, collects, manufactures, supplies, sells, transmits or exports any such substance in the course of his employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation." Note: The Constitutional Court in Minister of Justice and Constitutional Development and others v Prince and others 2019 (1) SACR 14 (CC) declared, section 22A(9)(a)(i) of the Medicines and Related Substances Control Act, 1965 as well as sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act, 1992, inconsistent with the Constitution and invalid to the extent that they respectively prohibit the use, possession or cultivation of cannabis by an adult in private - where use, possession or cultivation of cannabis is for personal consumption by that adult in private. If an adult person is found to use and or to possess and or to cultivate cannabis in a public space there can still be offences of which such a person can be charged with. The Constitutional Court in Centre for Child Law v Director of Public Prosecutions, Johannesburg and Others ZACC 35 full bench judgement date 29 September 2022 dealt with the position regarding children found in possession of cannabis since the matter of Minister of Justice and Constitutional Development and others v Prince and others 2019 (1) SACR 14 (CC) only dealt with the position regarding adults and not that of children. The matter was referred to the Constitutional Court for confirmation after the High - 48 - Court in Johannesburg made an order resulting in the decriminalisation of possession of cannabis by a child to the effect that it is still illegal for a child to use and/or possess cannabis (whether in public or private); however, that child cannot be arrested and/or prosecuted and/or sent to a diversion programme for contravening the impugned provision. The High Court concluded that there are other methods to deal with a child caught in those circumstances. This finding and order by the High Court was confirmed in the Constitutional Court. The Constitutional Court emphasised that this case did not concern the legalisation and condonation of the use and/or possession of cannabis by a child. Rather, this matter concerned the repercussions of the use and/or possession of cannabis by a child. The case rather dealt with the issue of if the criminal justice system is the appropriate mechanism to respond to the use and/or possession of cannabis by a child or if other social systems, designed to protect and promote the rights of the child were more suitable? It is important to distinguish between legalisation and decriminalisation. In the Prince matter the possession of cannabis by an adult for private use was legalised. The question now was not to legalise the possession of cannabis by a child for personal use but rather to decriminalise the possession of cannabis by a child for personal use and to see if there are not alternative manners in which such cases should be dealt with other than the criminal justice system. The purpose of decriminalising section 4(b) is not to permit the use of cannabis but rather has the consequence that the use and or possession of cannabis do not result in a conviction and criminal punishment. The order by the Constitutional Court pertaining to children found in possession of cannabis was as follows; “a) The order of the High Court, declaring section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 to be inconsistent with the Constitution and invalid to the extent that it criminalises the use and/or possession of cannabis by a child, is confirmed. b) The operation of the order in paragraph 1 is suspended for a period of 24 months to enable Parliament to finalise the legislative reform process. c) During the period of suspension referred to in paragraph 2, no child may be arrested and/or prosecuted and/or diverted for contravening section 4(b) of the Drugs and Drug Trafficking Act insofar as it criminalises the use and/or possession of cannabis by a child. - 49 - d) A child apprehended for the use and/or possession of cannabis may be referred to civil processes, including those found in the Children’s Act 38 of 2005 and the Prevention of and Treatment for Substance Abuse Act 70 of 2008. e) Where a court has convicted a child of a contravention of section 4(b) of the Drugs and Drug Trafficking Act for the use and/or possession of cannabis, the criminal record containing the conviction and sentence in question, of that child in respect of that offence may, on application, be expunged by the Director-General: Justice and Constitutional Development or the Director-General: Social Development or the Minister of Justice and Correctional Services, as the case may be, in accordance with section 87 of the Child Justice Act 75 of 2008. f) If administrative or practical problems arise in the implementation of paragraph (e) of this order, any interested person may approach the High Court for appr

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