Basic Principles of Criminal Law PDF

##### BASIC PRINCIPLES OF CRIMINAL LAW 1. [Requirements for Legality] - the law must recognise the act/conduct as a crime in clear terms - before the conduct took place. 2. [Conduct and Voluntariness] - **[Act (positive conduct])** - **[Omission (failure to act])** 1. **Contractual...

##### BASIC PRINCIPLES OF CRIMINAL LAW 1. [Requirements for Legality] - the law must recognise the act/conduct as a crime in clear terms - before the conduct took place. 2. [Conduct and Voluntariness] - **[Act (positive conduct])** - **[Omission (failure to act])** 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. 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] 4. [Unlawfulness] ###### [Defences excluding unlawfulness]: - **Private Defence** 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" A*s 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 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 - **Necessity** 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** - **Superior orders** 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. - **Consent** - **Entrapment** - ***De minimis non curat lex*** - **Official Capacity** - **Presumed Consent or *Negotiorum gestio*** - Criminal Capacity Fault / Culpability Participation in crime 1. **[Perpetrators]** -- is a person whose conduct, considering the circumstances as well as his/her fault/culpability satisfies all the elements of a crime. 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.) 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. ###### [Doctrine of Common Purpose] ###### [Possession/Joint Possession] 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.] ###### [Executive Statements:] A. ##### SPECIFIC OFFENCES 8. [COMMON LAW CRIMES] 1. #### Public Violence #### Contempt of Court #### Defeating or Obstructing the Course of Justice #### Perjury #### Murder #### Culpable Homicide 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 c. whether the conduct of the accused differed or deviated from the conduct of a reasonable person in the circumstances #### Assault #### Assault with the intent to do 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. 9. #### Crimen Iniuria a. Be aware of the accused's offending behaviour b. Feel degraded or humiliated by it #### Criminal Defamation #### Kidnapping #### Theft 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. 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 #### S36 of the General Law Amendment Act 62/1955 #### Robbery #### Fraud - [**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."* #### Forgery and Uttering of a forged document #### Malicious Injury to Property #### Arson - *'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]*.*** #### Housebreaking with intent to commit a crime #### Trespassing 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, 9. 21. ***THE FIREARMS CONTROL ACT 60 OF 2000, AS AMENDED*** #### 2.1.2. Unlawful possession of firearms -- S.3 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.* a. *the group had the intention (animus) to exercise possession of the guns through the actual detentor and* b. *the actual detentor had the intention to hold the guns on behalf of the group."* 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."* 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 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. 3. The third category is then those firearms that are not semi-automatic or fully automatic such as revolvers. #### 2.1.2. Unlawful possession of ammunition -- S.90 22. ### DRUGS AND DRUG TRAFFICKING ACT 140 OF 1992 1. #### Manufacture and supply of scheduled substances -- S.3 #### Use And Possession Of Drugs -- S.4 i. *he is a patient who has acquired or bought any such substance* ii. *he has acquired or bought any such substance for medicinal purposes* 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,* 3. #### Dealing in Drugs -- S.5 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 -* 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;* 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.* Offences and Penalties: a. the value of the dependence producing substance in question is more than R50 000,00 b. the value of the dependence producing substance in question is more than R10 000,00 and that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; c. the offence was committed by any law enforcement officer. i. a first offender to imprisonment for a period not less than 15 years; ii. a second offender of any such offence to imprisonment for a period not less than 20 years; and iii. a third or subsequent offender of any such offence to imprisonment for a period not less than 25 years. #### Prevention and Combating of Corrupt Activities Act 12 of 2004 Corruption by giver and corruption by recipient. 5. - the acceptance by Y or the offer to accept (the act); - of a gratification; (need not be in monetary value) - in order to act in a certain way (the inducement); - unlawfulness; - intention. 6. - the giving or offer to give by Y to X (the act); - of a gratification; (benefit of any type -- need not be monetory) - in order to influence Y to act in a certain way (the inducement); - unlawfulness; - intention." - **[Section 4]** deals with offences in respect of corrupt activities relating to public officials; a. Any person receiving remuneration from public funds: or b. Where the public body is a corporation, the person who is who is incorporated as such, but does not include - Member of the legislative authority - Judicial officer or - Member of the prosecuting authority." - **[Section 5]** deals with offences in respect of corrupt activities relating to foreign public officials; a. Any person holding a legislative, administrative or judicial office of a foreign state; b. Any person performing public functions for a foreign state, including any person employed by a board, commission, corporation or other body or authority that performs a function on behalf of foreign state; or c. An official or agent of a public international organisation. - **[Section 6]** deals with offences in respect of corrupt activities relating to agents - **[Section 7]** deals with offences in respect of corrupt activities relating to members of legislative authority. - ***[Section 8]** deals with offences in respect of corrupt activities relating to judicial officers.* a. *Any constitutional court judge or any other judge as defined in section 1 of the Judges Remuneration and conditions employment act* b. *A judge of the Labour court* c. *The President of judge of the Land Claims Court.* d. *Any judge of the Competition Appeal Court.* e. *A judge or additional member appointed to the Special Investigative Units and or to a special tribunal.* f. *The presiding officer and or member of a marine enquiry and or the maritime court and or the court of survey of the merchant shipping act.* g. *Any presiding officer appointed to a divorce court.* h. *Any regional magistrate or magistrate appointed under the Magistrate's Act* i. *Any commissioner appointed to the small claims court.* j. *Any arbitrator, mediator or umpire who presides at an arbitration or mediation proceedings.* k. *Any adjudicator appointed under the short process courts and mediation in certain civil cases act.* l. *Any assessor who assists a judicial officer* m. *Any other presiding officer appointed to any other court or tribunal established under any statute.* n. *Any other person who presides at any trial, hearing, commission, committee or any other proceedings and who has the authority to decide causes or issues between parties and render decisions in a judicial capacity.* o. *Any other person contemplated paragraphs (a) to (n) who has been appointed in an acting or temporary position.* - **[Section 9]** deals with offences in respect of corrupt activities relating to **members of the prosecuting authority.** 1. *to introduce measures to combat organised crime, money laundering and criminal gang activities;* 2. *to prohibit certain activities relating to racketeering activities;* 3. *to provide for the prohibition of money laundering and for an obligation to report certain information;* 4. *to criminalise certain activities associated with gangs;* 5. *to provide for the recovery of the proceeds of unlawful activity;* 6. *for the civil forfeiture of criminal assets that have been used to commit an offence or assets that are the proceeds of unlawful activity.* #### Criminal Matters Amendment Act 18 of 2015 (Tampering and damage to Essential Infrastructure) - *"**[basic service]**" -- means a service, provided by the public or private sector, relating to energy, transport, water, sanitation and communication, the interference which may prejudice the livelihood, well-being, daily operations or economic activity of the public.* - *"**[Essential infrastructure]**" -- means any installation, structure, facility or system whether publicly or privately owned, the loss of damage of, or the tampering with, which may interfere with the provision or distribution of a basic service to the public.* - *"**[Tamper]**" -- includes to alter, cut, disturb, interfere with, interrupt, manipulate, obstruct, remove or uproot by any means, method or device, and tampering shall be construed accordingly.* #### Domestic Violence Act 116 of 1998, as amended ii. *In the case of an offence contemplated in paragraph (b), (c) or (d);* a. Committing or attempting to commit any act of domestic violence; b. Enlisting the help of another person to commit any such act; c. Entering a residence shared by the complainant and respondent: Provided that the Court may impose this prohibition only if it appears to be in the best interests of the complainant; d. Entering a specified part of such a shared residence; e. Entering the complainant's residence; f. Entering the complainant's workplace or place of studies; g. Preventing the complainant who ordinarily lives or lived in a shared residence as contemplated in paragraph (c) from entering or remaining in the shared residence or a specified part of the shared residence; or h. Committing any other act as specified in the protection order. a. Physical Abuse b. Sexual Abuse c. Emotional, verbal or psychological abuse a. They are or were married to each other, including marriage according to any law, custom or religion b. They (whether they are of the same or the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other c. They are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time) d. They are family members related by consanguinity, affinity or adoption e. They are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration f. They are persons in a close relationship that share or shared the same residence. Sentencing: #### Maintenance Act 99 of 1998: i. a maintenance order directed to the accused; ii. a failure on the part of the accused to comply with it; iii. that at the time of his default, the accused had the means to comply with the order; (The State must prove that the accused had the financial means to contribute towards maintenance at least in part if not in full. This must be considered at the time of the failure to pay maintenance and not the current financial standing of the accused -- [explanation] [inserted]), and iv. a guilty mind. 1. Accused is convicted of contravention of S.31(1) of the Maintenance Act. 2. Accused is sentenced to a term of imprisonment which is suspended in terms of section 297 of the Criminal Procedure Act 51 of 1977. 3. The court imposes as a condition of the suspension of the sentence, a compensation order in terms of section 297(1)(a)(aa). 4. The accused failed to make payment/s according to the compensation order. 5. The prosecutor may bring an application to the court to have the suspended sentence put into operation. (see sentencing for procedure). #### Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, as amended Discussion: 1. **contact between**: - A person and the complainant - Genital organ to genital organ - Genital organ to anus / mouth / female breasts - genital organ /anus /mouth / female breasts to any part of another person - mouth to mouth - any other part of the body of another person which: - can be used in an act of sexual penetration - could cause sexual arousal or stimulation - could be aroused or sexually stimulated - An animal and a human complainant - genital organ / anus / female breasts of a person to any part of an animal - mouth of complainant and genital organs or anus of animal - Human complainant and an object resembling the genital organs/anus/female breasts of another person or an animal - Object resembling genital organs of a person or animal beyond the mouth of the complainant - Masturbation of another person by the complainant. c....the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit one of the following offences; i. rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007, respectively... a. When committed -- i. in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice; ii. by more than one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy; b. Where the victim -- ii. is a physically disabled person who, due to his or her physical disability, is rendered particularly vulnerable; or iii. Is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act , 2007 or iv. Is or was in a domestic relationship, as defined in section 1 of the Domestic Violence Act, 1998, with the accused or