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 PBL410 (CRIMINAL LAW)

STUDY UNIT 1 – INTRODUCTION TO CRIMINAL LAW

THEME 1 – CRIMINAL LAW AND THE LEGAL SYSTEM

Study aim: Knowledge and understanding of the place of criminal law vis-à-vis other
disciplines in the legal system

- Law = a body of legal rules governing human behaviour, prescribed by society,

applied by the courts, and enforced by the executive à this is a normative definition
- De lege lata = law as it is
- De lege ferenda = law as it should be

DISTINCTION BETWEEN PRIVATE AND PUBLIC LAW:

Public law:
- Deals with the relationship between:
o The state (as an authoritative power) & the subjects of the state
o The different branches of state authority
o Different States
- Example: public law may be subdivided into:
o Constitutional law
o Administrative law
o Criminal law etc.
- The State is always a party (in legal proceedings)
- Public law is the horizontal application of law (state vs individual)

Private law:
- Regulates the relationship between individuals (individuals = subjects of the legal
order)
- Example: private law may be subdivided into:
o Law of succession
o Law of things
o Law of obligations (law of delict) etc.
- Private law is a vertical application of law (individual vs individual)

1
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7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
DISTINCTION BETWEEN MATERIAL CRIMINAL LAW, FORMAL CRIMINAL LAW, AND
CRIMINAL LAW OF EVIDENCE

Material law (also known as ‘substantive’ law):

- Comprises substantive legal rules setting out the rights & duties of subjects or of the
state
- Both public & private law form part of substantive law
- PBL410 teaches us about material criminal law

Formal law (also known as ‘procedural’ law):

- Comprises rules setting out the procedure/methods by which the rules of
substantive law are enforced
- Formal criminal law determines how the material criminal law is enforced (SPR411
teaches us formal criminal law)
- E.g.) Law of evidence, criminal procedure law, civil procedure law etc.
- Criminal procedure law à lays down the procedure by which alleged criminals are
brought before the court and tried for their alleged crimes

Pyramid of criminal law:

- Legality is the foundation à move up the pyramid (the sequence is important)

2
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
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this module.
 o Assess the elements in the following order: legality à act/omission à
causation à unlawfulness à capacity à fault
- A materially defined crime is a consequence crime
o We punish the particular consequence of the crime (we punish the result)
o E.g.) murder/homicide = unlawful and intentional causing of death of another
human being
- A formally defined crime is a crime where we don’t look at the result, but we look at
the act itself
o E.g.) sexual assault

DEFINTION OF MATERIAL CRIMINAL LAW

- Burchell’s definition is the best one bc it is more in-depth (it also lays out key
elements of a crime à unlawful act + culpability)

THE IMPACT OF THE CONSTITUTION ON CRIMINAL LAW

- The constitution (consti) has had a big impact on criminal law

- Certain crimes have been abolished/decriminalized bc of the consti. Examples:
o Sodomy is no longer a crime à bc it goes against sec 9 of the consti (right to
equality)
o Abortion is no longer a crime à bc it goes against sec 12 of the consti
(freedom and security of a person)
- Certain forms of human conduct have been criminalized since the operation of the
consti. Examples:
o Keeping of a brothel is in contravention of the Sexual Offences Act
§ Note: prostitution is not criminalized
o Possession of child porn is criminalized by the Films and Publications Act

3
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o Corporal punishment by teachers has been criminalized bc it is
unconstitutional
o Reverse onuses in criminal trials were declared unconsti

THEME 2 – CRIMINAL LAW AND THE LAW OF DELICT

Study aim: Knowledge and understanding of the similarities and differences between
criminal law and the law of delict

SIMILARITIES:

- Both crimes & delicts are à unlawful and blameworthy acts or omissions

DIFFERENCES:

CRIME DELICT
A crime is injurious to the public interest A delict is injurious to private/individual
(the interests of the state or community) interests
(material difference) (material difference)
Criminal law forms part of public law Law of delict forms part of private law
It is the State who prosecutes (e.g. the The person (private party) who suffered
police decides whether to proceed with a damage decides whether to sue (institute
criminal charge – even if the action against) the wrongdoer for damage
victim/complainant does not want them to) (material difference)
(material difference)
Nature of punishment à purpose of Nature of sanction à purpose of
imprisonment/fine is retribution, compensation/damages is to put the
prevention of crime, and complainant in the same position he would
deterrence/rehabilitation of the offender have been had the delict not been
(material difference) committed (material difference)
Trial is governed by the rules of criminal Trial is governed by the rules of civil
procedure (this is the formal difference) procedure (formal difference)

Note:
- Sometimes an act can be both a crime and delict
o E.g.) assault
- Not all delicts are crimes

4
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o E.g.) seduction, negligent causing of damage à not crimes
- Not all crimes are delicts
o E.g.) high treason, perjury, bigamy, unlawful possession of drugs à not
delicts

THEME 3 – THE CONCEPTS “CRIMINAL LAW” AND “CRIME”

Study aim: Knowledge and understanding of the definition and meaning of the terms
‘criminal law’ and ‘crime’ and their alternatives

- Criminal law and penal law are the same thing

CRIME / OFFENCE:

- Crimes and offences are both à conduct that is criminally punishable

- Crimes à conduct prohibited by the common law
- Offences à conduct prohibited by statute

THEME 4 – THE HISTORY AND SOURCES OF CRIMINAL LAW

Study aim: A superficial reading knowledge of the history and sources of our criminal law

BRIEF HISTORY OF CRIMINAL LAW:

- Criminal law classical law originates from the theory of vengeance (an eye for an
eye)
- Private vengeance was eventually replaced by state punishment
- Historic timeline of development of criminal law: Germanic contribution à dark ages
à Middle Ages à reception of roman law à emergence of modern criminal law in
England and Netherlands à Reception of Roman-Dutch law at the Cape à English
influence à Transkeian penal codeà Apartheid era à advent of consti
- Our current SA system is a mixed/hybrid system (fusion of Roman-Dutch law and
English law) and influenced by other scientific continental theories

3 MAIN SOURCES OF CRIMINAL LAW:

- (1) LEGISLATION

5
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o Legislation receives priority over the common law
o Unlike SA criminal procedure, substantive criminal law has not yet been
codified
§ Aka SA legislature has been silent on the general principles of criminal
law (exception: rules governing the defense of mental illness)
§ Since crimes like murder, assault, theft etc. are nowhere statutorily
defined and their requirements (reqs) must thus be sought in the
common law
o The Constitution towers above all legislation
- (2) COMMON LAW
o Common law = legal rules not contained in an Act of Parliament or
enactments of other subordinate legislatures
o Common law rules are still binding
o The common law of SA is Roman-Dutch law à this was the law applied by
the officials of the Dutch East India Company who administered settlement at
the Cape
- (3) CASE LAW (judicial precedent)
o The principle of ‘judicial precedent’ is followed in SA
§ à the lower court is bound to follow the decisions of the higher
courts
§ à the High Court (HC) is bound by earlier interpretations/decisions by
the same division
è Note: the 2 and 3rd source ^ overlap bc the contents of the common law are often
nd

laid out in reported/published case

OTHER INFLUENCES ON CRIMINAL LAW (these are NOT sources of criminal law):

- ENGLISH LAW
o When the Cape became an English colony, English law had a strong influence
on our law (but it did not replace Roman-Dutch law)
- GERMAN CRIMINAL LAW THEORY
o Criminal law theory = a method of arranging (in a systematic way) the
numerous subordinate rules/examples/cases/court decisions to a system of
general principles that can be applicable to all crimes
o The criminal law theory is the approach/model followed in Germany. This
systematic continental model is also recommended for SA

6
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 § Why? à this Continental model is the most conducive to legal
certainty and to a consistent application of legal rules
o Characteristics of this approach:
§ Uses a highly sophisticated system of concepts in describing general
prerequisites for criminal liability
§ Emphasis is placed on the formulation of concepts which are:
• Universally valid
• Not confined to a particular place or time
• Not dependent upon contingencies (e.g. accidents)
§ The method is systematic and analytic
§ The method uses deductive reasoning (general à particular)
- BILL OF RIGHTS IN THE CONSTITUTION
o The coming into operation of the Consti has had a far-reaching effect on all
SA law
o In SA, the Consti is supreme à Parliament is no longer sovereign
o Chapter 2 of the consti contains the Bill of Right (BoR)
o All rules of law (including those governing substantive criminal law) must be
compatible with the BoR (or else it may be declared null and void)
o The BoR prohibits discrimination & it creates ‘second generation rights’, but
it does not provide for a right to a crime-free environment or a right to
adequate protection against crime
o Sec 36 provides that the rights in the BoR may be limited/restricted
(therefore they are not absolute) ito the law of general application, but only
to the extent that the limitation is reasonable and justifiable in an open and
democratic society

THEME 5 – DETERMINISM & INDETERMINISM

Study aim: Knowledge and understanding of the definition and impact of the deterministic
and indeterministic schools of thought (doctrines) on criminal law

DETERMINISM

- Determinism involves the following beliefs:

o A man’s actions are predetermined by his genetic/biological make-up
(“anatomy is destiny”)
o A man cannot rise above himself (he cannot resist his biological urges)

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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o A man’s conduct is the result of blind casual processes
o A man has no control over whether he commits a crime à therefore cannot
hold him criminally liable
- When it comes to determinism, there is NO place for culpability (blameworthiness)
o Why? à culpability presupposes that a man is free to overcome the
limitations of his nature and to choose the conduct he engages in
(determinism says that this is not possible)
- If SA adopted a deterministic viewpoint, there would be no point in punishing a man
for his misconduct + the whole basis of criminal law would collapse

INDETERMINISM

- Indeterminism involves the following beliefs:

o A man has freedom of will + he has the ability to rise above the forces of
blind casual determinism
o A man has the ability to control/resist his impulses/urges (he can restrain
himself from committing a crime)
- Most modern writers adopt an indeterministic viewpoint. In other words, most
writers accept the assumption that a man’s will is free. Without such an assumption,
there is no room for culpability and criminal liability
- Based on our knowledge and experience of human conduct, if X used his mental
powers to the full, could he have behaved differently/could he have complied with
the law?
o If yes à X is culpable
o If no à X in inculpable

LEGAL PRACTICE

- Although SA criminal law is based on indeterminism, a mixed approach is followed in

legal practice
o SA criminal law is generally based on indeterminism à A sane person who is
no longer a child may be held responsible for his deeds and be blamed for his
misdeeds
o However, a mixed approach is followed in practice à Mentally ill people +
children are NOT punished when they perform unlawful acts (instead they
are put in a psychiatric facility)

8
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
Mental illness / intellectual disability:
- First part of the test for criminal responsibility à X must have been suffering from a
mental illness
- Whether or not X is mentally ill MUST be determined with the aid of expert
psychiatric evidence. A court cannot reach a finding of criminal non-responsibility
without hearing expert evidence by psychiatrists
- Whether the mental illness is curable or incurable is irrelevant
- Exception to the general rule: If X was mentally ill before and after the act but he
committed it during a sane interval à X will be held criminally responsible (even
though he is mentally ill)
- Mental illness refers to a pathological disturbance of the mental faculties. It does
NOT refer to a temporary clouding of the mental faculties caused by alcohol/drugs

Culpability:
- Culpability is the grounds upon which X may be personally blamed for his unlawful
act
- Culpability is a prerequisite for criminal liability
- The word ‘culpability’ refers to legal culpability (NOT moral culpability)
o Legal norms and moral norms do not always/necessarily collide
o Legal norms are binding even when they do not align with someone’s morals
or personal beliefs (e.g. abortion laws)
o The blame inherent in culpability relates to a specific act (NOT to X’s personal
beliefs)
- There are 2 forms of culpability à intention (dolus) + negligence (culpa)
- Principle of contemporaneity = the culpability + unlawful act must be
contemporaneous (they must happen at the same time)
o E.g.) X is driving to Y’s house so that he can kill Y while Y is sleeping. While X is
driving, he accidentally runs over somebody. Later it is found that X ran over
Y à Here X will NOT be found guilty of murder à Why? Bc X did not drive
over Y (unlawful act) with the intent (culpability) to kill Y
o Masilela case
§ X strangled Y with the intent to kill Y. When X thought Y was dead, X
threw Y over the balcony and set Y’s house on fire. Later it was found
that Y was still alive after he was strangled and thrown over the
balcony + it was found that Y died in the fire
§ X argued that the unlawful act and culpability were not
contemporaneous

9
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 • First act (strangling): there was intention to kill without actual
killing
• Second act (starting a fire): there was an act of killing without
intention to kill
§ Court rejected X’s argument on the grounds that the 2 acts were so
closely related to one another in time and place that X’s actions
amounted to a single course of action
- There is NO replacement for culpability (the “taint doctrine” has been rejected in SA)
o Taint doctrine (versari doctrine) = if a person performs an unlawful act, he is
criminally liable for all consequences flowing from his act – irrespective of
whether he acted intentionally or negligently (aka regardless of whether or
not he was culpable)
§ The taint doctrine says that you can be convicted for murder even if
you kill someone accidently (e.g. negligent driving)
o In 1965 the Appellate Division rejected the taint doctrine in the Bernardus
case
- Culpability is normative (objective) in character
o This means that to determine whether X acted with culpability, X’s unlawful
act must be measured against a certain norm/standard. Only if the conduct
falls short of this standard can X be blamed for his act/wrongdoing
§ This norm/standard must be something outside X. X cannot be
measured by X’s own standards
§ The norm/standard is an objective standard by which all people are
measured
o An important question that must be asked when determining culpability:
Could the law, in all fairness, have expected X to act differently/lawfully?
o When it comes to culpability in the form of negligence à X’s conduct is
measured by the standard of what a reasonable person in X’s position would
have done at the relevant moment
§ The normative character of culpability is clearly evident here since it
the test for negligence is objective
o When it comes to culpability in the form of intention à X’s conduct/intent is
measured using a subjective test
§ The normative character is not so apparent here since the test for
intention is NOT objective but rather subjective
§ The test for intention involves asking the following questions:
• Was X aware of the fact that his act was unlawful?

10
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 • Was X capable of acting in accordance with his understanding
of right and wrong?
• Did X will the commission of the unlawful act?
• Are the surrounding circumstances normal or exceptional? /
Can the law expect X to have acted differently?
- Example of when X commits an unlawful act without culpability à Z orders X to kill Y
and Z threatens to kill X if X refuses to kill Y
o If X yields to the duress and kills Y à X acts unlawfully (bc killing another
person violates a legal norm) but X lacks culpability (even though X acted
intentionally)
o This ^ is an exception bc the surrounding circumstances are not normal (the
law cannot fairly expect someone in X’s position to have acted differently bc
the average person is not prepared to offer his own life for another)

THEME 6 – THE PURPOSE AND FUNCTION OF CRIMINAL LAW AND CRIME

Study aim: Knowledge and understanding of the purpose and function of criminal law and
crime

The purpose and function of criminal law:

- Protection of society
- Ensuring the public welfare
- Enforcement of the boni mores (legal convictions of society)
- Maintenance of the state
- Criminalization/decriminalization
o Criminalization à a form of conduct is now declared to be a crime
o Decriminalization à a form of conduct is declared no longer a crime

THEME 7 – THE CLASSIFICATION OF CRIMINAL LAW AND CRIMES

Study aim: Knowledge and understanding of the various classification of criminal law and
crimes

GENERAL PRINCIPLES / SPECIFIC OFFENCES

- General principles à covered in PBL410. In this module we will learn the elements of
criminal liability that apply to ALL criminal offences (the pyramid)

11
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o Here we will be looking at each element in the pyramid à legality à
act/omission à causation à unlawfulness à capacity à fault
- Specific offences à we will only learn specific offences in 2nd semester

STATUTORY / COMMON LAW OFFENCES

- Common law offences à murder, homicide, assault etc. (these offences are not laid
out in legislation but rather stem from the common law)
o The substantive criminal law in SA is not codified (this position is often
criticized)
- Statutory offences à sexual offences, road traffic offences etc. (these are offences
contained in legislation)

MALA IN SE / MALA PROHIBITA

- Mala in se à crimes that are inherently bad/vicious

o E.g.) Rape, murder etc. (we get a sense of uneasiness when we hear about
these crimes)
- Mala prohibita à crimes that are prohibited but are not inherently viewed by
society as bad/vicious
o E.g.) Tax evasion, traffic offences etc.

12
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
STUDY UNIT 2 – GENERAL PRINCIPLES OF CRIMINAL LAW

THEME 1 – ELEMENTS OF CRIMINAL LIABILITY

- Legality à prerequisite for criminal liability (not an element)

- Elements of criminal liability:

o The act/deed
o Causation
o Unlawfulness
o Capacity
o Fault

THE PRINCIPLE OF LEGALITY

[textbook pages 31 – 43]

Study aim: Knowledge and understanding of the reasons for and the meaning, forms, and
practical application of the principle of legality

DEFINITION

- Legality is a prerequisite for criminal liability (not an element)

- Definition of legality = an accused may not be found guilty of a crime unless his
conduct has been recognized by the law and a crime, in clear terms, before the
conduct took place, and without the court having to stretch the meaning of the
words in the definition of the conduct
- Definitional elements of legality:
o Crime must exist/be recognized as a crime at time of its commission
o Crime must be defined in clear and certain terms
o Crime must have an appropriate punishment
- Criminal legality is based on 2 Latin principles:
o Nullum crimen sine lege à for an act to be a crime, it must have been
established in law as a crime
o Nulla poena sine lege à for a provision to create a crime, the statutory
provision/legal rule must exist + must indicate the type of punishment

Rules embodied in the principle of legality:

13
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
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The court may not create a crime (the crime must already exist) à ius acceptum
- However, the court may create a new defense or extend the scope of an existing
defense
- Not all transgressions are crimes (e.g. breach of contract is not a crime). Only when
specific conduct is declared a crime by law (statutory or common law) is there a
possibility of criminal liability
- The only way a new crime can be created à legislation
- If a provision in an Act is ambiguous (e.g. it does not expressly state that a particular
form of conduct is a crime) à the provision must be interpreted in favour of the
accused
- Minster of Justice v Stransham-Ford:
o Case dealt with euthanasia. Accused applied to the HC to allow him to get a
doctor who could administer a lethal dose to him. This dose was granted
within certain parameters (it was a one case only basis that wouldn’t change
the law on euthanasia and the doctor would not be liable for murder). Before
the order was granted, Ford passed away.
o Legal question: The question arose as to whether physician assisted suicide
could now be seen as law?
o SCA held that the HC order had to be set aside as the point had become moot
(since Ford died) and it was not up to the court to legalize euthanasia (it
should be left to the legislature).
o So, physician assisted suicide is still not legal in SA.

The accused may be found guilty of a crime only if his conduct was already recognized as a
crime at the time of its commission à IUS PRAEVIUM
- Creation of a crime with retrospective effect (ex post facto creation of crimes) is
prohibited bc it is in conflict w legality
- Mshumpa case
o Facts: victim/complainant was involved with a man and fell pregnant with his
child. They went to the doc for a checkup and on their way out a man (named
Mshumpa) shot her through her tummy. It was later found that the man
hired the shooter to make it look like a robbery gone bad in hopes that the
shot would kill the baby. The pregnant girl did not die but the shots hit the
unborn child and killed it. Mshumpa was charged with attempted murder.
o Legal Q: Should Mshumpa be charged with the murder of the unborn child?
Can the crime of murder be committed against the unborn?

14
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o Court held: child was not yet born alive and as such, since the crime of
murder didn’t provide for killing unborn children at the time of the crime,
Mshumpa was not found guilty of murder of the unborn child. He was only
found guilty of attempted murder of the mother.
o Legality principle was upheld here à murder of an unborn baby was not
recognized as a crime at the time of its commission, thus he was not held
criminally liable

Crimes should not be formulated vaguely à IUS CERTUM

- An excessively widely formulated provision can serve as a smokescreen behind
which state authority can hide à this is bad
- Ius certum includes the right to be informed of the charge with detail to answer it
- Smith case:
o Man had photocopies of porn. At this time, legislation only criminalized being
in possession of the actual material (not photocopies)
o Court interpreted this provision narrowly in favour of the accused
o Therefore, photocopies don’t count. Smith was acquitted
o This case upholds the principle of legality

A court should interpret the definition of a crime (or crime creating provisions)
narrowly/strictly rather than broadly/widely à IUS STRICTUM
- Where doubt exists concerning the interpretation of a criminal provision, the
accused should be given the benefit of the doubt
- The court is not free to use a wide interpretation (of the reqs for the crime) to
extend the definition or field of application of a common law crime
- Masiya v DPP case
o Man raped girl through anus. At this time, the common law definition of rape
did not include anal penetration
o In the interests of women and children, the court held that the common law
crime of rape should be developed to include anal penetration
§ This judgement was delivered before the legislature enacted a new
broader definition of rape à this goes against legality
§ My own understanding: since the legislature is responsible for making
and changing the law, it is not desirable for the legislature to depend
on court rulings to change/improve the law. the legislature must act
proactively to address deficiencies in the law to ensure that it upholds
the principle of legality

15
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o The accused was charged with the new definition of rape. The case was then
appealed to the CC. the CC said that the new revised definition cannot be
applied retrospectively (retrospective development would offend against
legality as it would mean the accused is convicted of a crime that did not
exist at the time it was committed).
o It was held that the common law should be developed prospectively only
(and in accordance with the consti). Therefore, the accused was just charged
with indecent assault
o When it comes to the courts power to extend common law crimes in relation
to statutory provisions à court must consider whether the language of the
legislature is clear/unambiguous, context in which the legislation was
drafted, and the background circumstances

The above 4 principles must be applied mutatis mutandis when it comes to punishment /
imposing a sentence. In other words, the accused may not be sentenced unless the
punishment also complies with the 4 principles
- Application of legality to punishment à expressed as the NULLA POENA principle à
“no penalty without a statutory provision or legal rule”)
- The court is not allowed to impose any sentence other than the one legally
authorized
- The applicable sentence must already have been determined by the law à in clear
and certain terms à at the time of commission of the crime
- Court must interpret the definition of the punishment narrowly rather than widely
- Application of ius acceptum to punishment à court cannot impose a punishment
unless the punishment is recognized/prescribed by statutory or common law
- Application of ius praevium to punishment à if the punishment to be imposed for a
crime is increased, it must not be applied to the detriment of the accused who
committed the crime before the punishment was increased
o The rule against the retrospective operation of sentences does not apply to
cases in which the legislature reduces the punishment
o Provisions which benefit the citizen do operate retrospectively
- Application of ius certum to punishment à legislature should not express itself
vaguely/unclearly when creating/describing punishment
- Application of ius strictum to punishment à if the provision is ambiguous, the court
must interpret it strictly

16
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 -

RATIONALE (REASONS)

- Rationale / basis of legality = policy consideration that criminal law rules ought to be
as clear and precise as possible so that people may find out (with reasonable ease
and in advance) how to behave in order to avoid committing crimes

BACKGROUND

- The state has many powers. Because of this, it is necessary to protect the freedom of
the individual. The principle of legality plays a role in this regard
- The principle of legality does the following:
o It upholds the utility of fixed and certain rules. Legality is the core of the rule
of law doctrine
o It acts as a mechanism to ensure that organs and officials of the state do not
see themselves as above the law in the exercise of their functions
o It prevents the arbitrary punishment of people by state officials
o It ensures that the determination of criminal liability and sentencing
correspond with the rules of law

- The principle of legality is incorporated in sec 35(3)(l)-(n) of the consti

o Sec 35 forms part of chap 2 which contains the BoR à the BoR applies to all
law and binds the legislature/executive/judiciary and all organs of state à
any rule in conflict with the BoR must be declared null and void
- Sec 35(3) provides that every accused person has the right to a fair trial. This
includes the following:
o Sec 35(3)(l) à The right not to be convicted for conduct that was not an
offence under national or international law at the time it was committed à
incorporates the ius praevium principle
17
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o Sec 35(5)(n) à The right to benefit from the least severe of the prescribed
punishment if the punishment was changed between the time the offence
was committed and the time of sentencing à incorporates the nulla poena
sine lege principle à also held in the Veldman case

EXPRESS PENALTY CLAUSE / IMPLIED PENALTY CLAUSE

- Legal norm à a rule of law, the infringement of which is not crime

o E.g.) “You may not travel on a train without a ticket” à the court will not
interpret this regulation as having created a crime
- Criminal norm à a provision in an Act clearly stating that certain conduct
constitutes a crime
o E.g.) “You may not travel on a train without a ticket and anybody
contravening this provision shall be guilty of a criminal offence” à even
though no sanction is imposed, it is likely that the court will interpret this as
creating a crime
o This is an example of an implied criminal cause. It mentions the crime, but
the punishment is left up to the discretion of the court. Court has to rely on
statutory interpretation. This does not technically comply with the principle
of legality
o Forlee case à
§ There was a law that no one was allowed to buy or sell opium (legal
norm) but this law did not state what the punishment would be if
someone was caught doing this
§ The accused was charged ito this law ^. The statutory clause
contained a crime but not a punishment. It was argued on behalf of
the accused that the section offends legality bc there is no express
penalty clause in the statute.

18
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 §Court held that having regard to the nature of offence and the
interpretation of this section, it was clear that the legislature wanted
to punish the conduct and the section was thus not against legality
§ The Forlee case goes against the legality principle
- Criminal sanction à a provision in an Act prescribing the parameters of the
punishment a court must impose once a person has been found guilty of the crime
o E.g.) “You may not travel on a train without a ticket and anybody
contravening this provision shall be guilty of an offence and punishable upon
conviction with imprisonment for a maximum period of 3 months or a
maximum fine of R1000” à this constitutes a criminal sanction bc the
punishment is described
o A criminal sanction is an example of an express penalty clause (mentions the
crime + the punishment). Most statutory offences include an express penalty
clause

Von Molendorff case:

- Facts:
o Von Molendorff was a policeman who had an altercation with the
complainant. The complainant said Von Molendorff assaulted him. Von
Molendorff then told the complainant to make a statement to absolve him of
all wrongdoing or else Von Molendorff would have the complainant arrested
and have his bail refused.
o Von Molendorff was then charged with common law extortion (extortion is
where X exerts pressure on another person to obtain a certain benefit)
o On appeal, Von Molendorff argued that he could not be found guilty of
extortion bc at the time he was charged, extortion only applied to
patrimonial benefit (money). Von Molendorff did not want money from the
complainant, he just wanted the complainant to make a small statement
- Legal Q: was the crime of extortion only applicable to patrimonial benefits or could
the common law definition of extortion be extended to include non-patrimonial
benefits?
- Court held that it was not the function of the court to expand an existing common
law crime (this rather had to be left to the legislature to intervene)
o Von Molendorff was thus acquitted
- The legislature intervened much later and said patrimonial AND non-patrimonial
benefits will fall within the ambit of extortion

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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 - Main point: courts are there to apply the law and not to make the law (this is
expressed in the following maxim à ius dicere non dare)
- This case upholds the principle of legality
- Sec 8 and 39 of the consti à the court is empowered to develop the common law to
comply with consti norms (but this should only be done in very exceptional cases)

Smit case
- Smit was a farmer and there was only one main road running to his farm. The
authorities decided to build a toll on that road. Smit refused to pay the toll. Smit was
charged for failing to pay the tariffs on this road
- Smit said he was never consulted in the decision to install a toll road and the rule
relating to paying tariffs offended against legality bc it was uncertain and ambiguous.
- Note: choosing to erect a toll road is a quasi-judicial decision (in the field of
administrative law)
- Legal Q: can administrative law influence the criminal law and legality? Does failing
to consult with Smit constitute an omission for the purposes of criminal liability?
- Court found in favour of Smit
- Main point: an ultra vires administrative act (e.g. establishing a toll road without
consultation) can lead to an illegality in criminal law if there is a prosecution

DPP v Prins:
- Prins fondled a woman’s breasts without her consent. The Criminal Law (Sexual
Offences and Related Matters) Amendment Act did not prescribe a penalty for this.
Prins argued that since there is no punishment (criminal norm and sanction), he
cannot be charged or else this will offend against legality
- Legal Q: does the absence of a penalty clause offend against legality and thereby
render the criminalization clause ineffective?
- Court held that the purpose of the Act is to render criminal the conduct described
therein. If the legislature creates an offence but omits to specify the punishment, the
punishment is in the discretion of the court and the courts will impose an
appropriate sentence on the accused
- This case goes against the principle of legality and the nulla poena maxim

20
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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
THE DEED
(1st element of criminal liability)
[textbook pages 43 – 71]

Study aim: Knowledge and understanding of the definition, forms and requisites of, and the
defenses to criminal acts & their practical application

DEFINITION OF AN ACT

- An ‘act’ is any voluntary human commission or omission

- 1st element for criminal liability à X must ‘act’ for the purposes of criminal law /
there must be conduct on the part of X
- An act includes both positive conduct (commission) + negative conduct (omission)
o Omission à failing to do something when there is a legal duty on you to act

- X’s conduct/act must fit into the definitional elements of the relevant crime (the act
must be mentioned in the definition of the crime with which X is charged)
o E.g.) if X is charged with the crime rape à sexual penetration is act required
by the definition of rape
o E.g.) if X is charged with arson à setting a structure on fire is the act that is
required by the definition of arson

- The concept of an act performs 2 functions in criminal liability:

o (1) It forms the basis of liability (the act is the base of the criminal liability
pyramid)
§ This means that all the other elements/reqs for criminal liability can
only be determined after it has been established that there was an act
o (2) It limits the scope of liability. It does so in the following ways:
§ Thoughts/ideas/decisions that have not been converted to actions are
not punishable
• However, uttering words may be sufficient to constitute a
crime (e.g. incitement and conspiracy)
§ An act does is not limited to muscular contraction
• E.g.) Omissions are punishable even though no muscular
contraction is involved
• E.g.) X’s uses another person as an instrument through which
X performs an act

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 § An act is not limited to intentional conduct (X can also be held
criminally liable for a negligent act)

REQUIREMENTS FOR AN ACT:

(1) The act must be a HUMAN ACT

- Non-human conduct (animal conduct) is not punishable
- This means the subject of the act must be a human being
- However, a human can be punished if he uses an animal as an instrument to commit
a crime (e.g. X releases his poisonous snake to bite Y)
- Exception to the ‘human conduct’ rule: juristic/legal persons or corporate body (e.g.
companies who act by means of their directors or employees) can be criminally
liable and punished (fined) for both common law and statutory crimes (sec 332
Criminal Procedure Act)
o Crime must have been executed during the carrying out of the company’s
normal duties + acted in the interests of the company
o Only appropriate punishment/sentence = fine

(2) The act must be VOLUNTARY

- It must be proved that X acted voluntarily at the time of commission/omission. Only
voluntary conduct is punishable
- Definition of voluntary: Conduct is voluntary if X is capable of subjecting his bodily
movements to his own conscious will or intellect
o X does not have to have willed or desired the conduct to happen. Voluntary
just means that X had sufficient mental ability and free will to control his
muscular movements
- An involuntary act (conduct that cannot be controlled by X’s own will) is excluded
from the definition of conduct
o E.g.) X sleepwalks and grabs a knife and stabs Y. Or X has an epileptic fit and
his hand hits someone. Here X acted involuntary

There are 3 factors that EXCLUDE voluntariness (these can be used as defenses by the
accused):
- Absolute force
- Automatism
- Absolute impossibility

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(1) Absolute force
- E.g.) X (big man) overpowers Y (small girl) and forces Y to stab Z à Y would have
been unable to prevent the incident even if she tried (thus she did not act). X
performed the act
- Achterdam case:
o Facts: Achterdam was very drunk and was pulled into the street.
o Legal Q: did Achterdam act for the purpose of criminal law (did he
intentionally go into the public street while drunk)?
o Court held: by being pulled into the street, absolute force was exerted over
Achterdam. Therefore, Achterdam did not perform a voluntary act

(2) Automatism
- Automatism is where X acted in a mechanical fashion and his body movements were
not controlled by his conscious will
- Automatism can be caused by external and internal factors
o External à intoxication, provocation, hypnosis etc
o Internal (biological) à epileptic fit, blackout, illness, sleepwalking etc
- Note: the attitude of the court towards a defence of automatism is usually one of
great circumspection. Why? à bc an accused who has no other defense is likely to
resort to a defence of automatism to try escape the consequences of his actions

- There are 2 types of automatism à sane + insane

- (1) Sane automatism à mentally sane person behaves involuntarily (e.g. bc of an
epileptic fit) and his unconscious conduct is not due to mental illness
o The state bears the onus of proving beyond reasonable doubt that X acted
voluntarily. X must merely lay a foundation (based on medical or expert
evidence) for the defense of automatism (‘DoA’) in rebuttal of the state’s
case
o If the DoA is successful à X will leave the court as a free person
- (2) Insane automatism à X’s unconscious conduct is attributable to a mental
pathology/illness/insanity
o Accused (X) bears the onus of proving on a balance of probabilities that he
suffers from a mental illness (medical or expert evidence is needed)
o If the DoA is successful à X will be found not guilty but court has discretion
to order that X be detained in a psychiatric hospital (here X does not leave
the court as a free person)

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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 - Victor case:
o Facts: X suffered from epilepsy, and he knew he needed to take his meds
every morning but failed to do this. X then drove, had an epileptic fit, got into
a car accident, and then killed someone.
o Legal Q: Will the defense of sane automatism succeed here? (no)
o Here the court looked at X’s ‘prior conduct’. X usually takes his meds (this is
his prior conduct) and one day decided not to take them and still chose to
drive – this conscious decision set off a chain of events and resulted in
someone dying. X’s negligent omission is thus actionable in accordance with
antecedent liability.
o Antecedent liability = liability based on X’s conduct prior to the incident
- Stellmacher case:
o Stellmacher was on a strict diet. He suffered from low blood sugar. There
were signs of epilepsy present in him. He worked hard and at 5pm he went to
a pub and drank brandy. There was a firearm on him. The sun reflected
through the brandy bottle and shined in his eyes. At that point he fired a shot
which killed the deceased. He was charged with murder. He raised the
defence of sane automatism alleging that his low blood sugar and sun
reflecting through the bottle triggered him to act involuntarily. He also could
recollect the events after the incident
o He had to be assessed by mental health experts (this is a primary source
when proving the defense of automatism)
o The experts reached the conclusion that he did not suffer from mental illness.
However, they agreed that the combo of low blood sugar, mild epilepsy, sun,
empty tummy while drinking etc. all contributed to him acting involuntarily
when the shot was fired. He was thus found not guilty by reason of
involuntary behaviour (caused by biological factors)
o A scenario like this has not featured again in our law

- Mere loss of temper is insufficient to warrant an inference of automatism (loss of

temper is not indicative of involuntariness)
o In order for provocation to exclude the voluntariness of the conduct, X would
have to lay a VERY solid defence of provocation to prove sane automatism
o There has not been any case where provocation has succeeded in proving
sane automatism
- Henry case:

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 o Henry was divorced from his ex-wife. They had 3 kids and it was his weekend
to look after the kids. When it was time to take the kids back to the ex-wife,
one of the kids was begging the dad to stay at his house longer. Henry
phoned ex-wife to ask permission for this but she refused. So then he drove
to ex’s house but she still refused. He then fired a shot at her and killed her.
He also killed her mother. He was charged with 2 accounts of murder
o Henry raised the defence of sane automatism due to provocation by his ex-
wife which made him act involuntarily. The court had to assess his defence
o Court held:
§ For a person to be held criminally liable, there has to be a voluntary
act
§ An accused person has to lay a solid foundation for his defense of
sane automatism based on provocation
§ There had to be a trigger factor/stimulus present which caused the
accused to act involuntarily. This trigger factor must be of an
extreme nature in order to create reasonable doubt of the
voluntariness of the accused’s act
§ Loss of temper is NOT indicative of involuntary conduct
§ Psychogenic amnesia (unconscious suppression of a traumatic
memory) after the event is NOT an indication that the accused acted
involuntarily (it does not matter if X cannot remember what he did)
o Henry’s actions were indicative of conscious and voluntary behavior (e.g.
after the incident he got in the car and drove home). His defence of sane
automatism did not succeed
- McDonald case
o Man went to go pick up his kids from his ex-wife’s house. The ex-wife’s new
boyfriend came to the man’s car and spoke to him about maintenance issues.
This confrontation made the man angry and he fired a shot at the boyfriend
and killed him. He was charged with murder. He raised the defence of sane
automatism based on provocation (provoked by the confrontational nature
of the maintenance discussion). Court had to assess whether this could have
caused him to act involuntarily
o Court held:
§ In order for a defence of sane automatism to succeed in an event of
provocation, there had to have been a trigger mechanism of an
extraordinary/severe nature to have forced the accused to act
involuntarily

25
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 § In this case, the man’s acts were indicative of voluntary behavior
(after the shot was fired, he drove to the police station to make a
statement – he knew what he was doing). Accordingly, his defence
was rejected
- Kok case:
o Mr Kok (the accused) was a policeman. He had a wife and a paraplegic son.
Mr and Mrs Kok were friends with Mr and Mrs Botha. The Kok’s borrowed
the Botha’s teacloths and tea-set, but they didn’t give it back. Botha
instituted a claim in the small claims court for the value of the teacloths that
Mrs Kok didn’t return. Sheriff then arrived at the Kok house to enforce the
court order. this was upsetting to Mrs Kok and the son. She phoned Mr kok
to tell him what happened. Mr Botha drove to his office, got his firearm, and
then drove to the Botha’s house to address the situation. A verbal altercation
arose and Mr Kok shot Mr and Mrs Botha. Kok was charged w 2 accounts of
murder. He relied on the defence of sane automatism and alleged that the
altercation upset him so much that he acted involuntarily. He also said he
had PTSD (from working in the police force) and this caused him to act
strange when he is provoked.
o Court held that Botha acted voluntarily and consciously (he drove to his
office in order to arm himself and then drove to Botha to shoot them). His
defence of sane automatism was rejected
- Marx case:
o The accused and his wife (now deceased) were married for 19 years. Their
marriage became rocky. Wife had many affairs and became emotionally
abusive towards the husband. Wife also made degraded him for having a
limp (caused by a car accident he was in). one day she came home from work
and told him she wanted a divorce. He begged her to stay with him and said
he will commit suicide if she leaves him. She said he can commit suicide. He
then grabbed his gun and shot her. He was charged with murder. He tried to
rely on the defence of sane automatism
o Court held that his behaviour was not indicative of involuntariness (he went
to his room to get his gun – conscious decision). His defence was rejected and
he was found guilty

(3) Absolute impossibility

- This defense only arises in cases of omissions

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 - An omission is involuntary if it is physically impossible for X to perform the positive
act/legal obligation by force of external circumstances
- E.g.) X is tied to a chair while Y is raping Z. X does nothing and is charged for being
accomplice to rape. Here X cannot perform a voluntary human act (it is impossible)
- Prohibitive norms (“don’t do that”) à prohibit persons from performing certain
acts. Prohibitive norms can be infringed through commissions and omissions
o E.g.) “you may not kill” is a prohibitive norm. this norm is infringed by an
omission where a mother causes her baby to die by not feeding it
- Imperative norms (“do that”) à command persons to do something and thereby
prohibit persons from omitting to act positively. imperative norms limit your
freedom more than prohibitive norms. Imperative norms can only be infringed by
omissions.
- An omission is punishable only if there is a legal duty (not a moral duty) upon X to
perform an act. When is there a legal duty on X to act?
o When the legal duty is created expressly (e.g. statute, common law, court
order)
o When the legal duty is not expressly created, but the legal convictions of the
community demand that there be such a duty. Examples:
§ Agreement: X agrees to close the gate. X omits to uphold his
agreement, thereby causing an accident
§ Control of a dangerous object: X has a gun but forgets to lock it away
while babysitting and the baby shoots itself
§ Special/protective relationship: Parent has the duty to feed their
child. Lifeguard has the duty to watch over swimmers in a pool
§ Prior positive conduct
§ Particular office: policemen on duty fails to assist a victim

POSSESSION

Act of Possession:
- Lots of crimes criminalize the possession of something (the possession of drugs,
porn, weapons etc. is criminalized)
- In these types of crimes, the conduct element consists of the possession itself. In
other words, possession is the act that is required for a conviction
- When will possession be regarded as an act for the purposes of criminal law? à in
order to possess something, 2 components must be present (must both be present
simultaneously):

27
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7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o (1) Mental component (animus)
§ Subjective in nature
§ Refers to the intention with which X exercises control over the article
o (2) Physical component (corpus)
§ Objective in nature
§ Refers to the physical control X has over the article
- Example: X has drugs in his luggage and is caught at airport. X is then charged with
possession of cocaine. In order to have acted, the prosecution has to prove that both
requirements were present
o Finding drugs in luggage = physical element
o Must now prove that mental element was present à was X aware of these
drugs in his bag? à mental element is proved by means of inferences from
the circumstances of the case
o In one element is absent à X did not act
- Crimes that prohibit the possession of an article à such crimes are only found in
statute (not the common law)
- There are 2 types/forms of possession:
o Juridical/legal possession (Possessio civilis)
§ This is where X has the intention to exercise control over the article as
an owner
§ Narrow form of possession
o Natural possession (Possessio naturalis)
§ This is where X exercises control over the article without intending to
possess it as owner
§ Wider form of possession
- Possession could be described as a ‘state of affairs’ à possession
- Possession could be proved by a commission or omission à possession could thus
be described as a ‘state of affairs’
o Example of possession being an omission à X has become aware that their
friend has placed drugs in X’s drawer and X does nothing further to terminate
his control over the packet of drugs

Adams [1986] case:

- The mental component could not be proved beyond reasonable doubt and was thus
considered to be absent
- Facts: accused was found in the street by the police. Accused was highly intoxicated.
The accused had a cake knife and spanner in his pocket. He was arrested and

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7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 charged of being in possession of dangerous weapons without being able to provide
a reasonable explanation for such possession (at this time it used to be crime to have
dangerous weapons on you and not provide an explanation for it). He was taken to
jail and when he woke up in the morning, he could not remember what happened
the night before
- During trial, the court affirmed the principle that in order to possess something,
both the mental and physical components must have been present at the time the
crime was committed
- In this case, the physical component was complied with (the accused had the
weapons in his control at time of arrest). But the prosecution had not proved beyond
reasonable doubt that the mental element was present (bc the accused was highly
intoxicated at the time of arrest)
- Therefore, the accused was found not guilty bc he had not ‘possessed’ for purposes
of this crime (bc the mental element was absent). Thus, he did not ‘act’ at the time
of the crime

Mosoinyana [1998] case:

- Physical element of possession couldn’t be proved in this case
- Facts: accused, who was lingering in the street corner, looked suspicious to a
policeman. Police approached the accused. In close proximity to where the accused
was standing, the police found various fuses and other implements that were
typically used to steal motor vehicles. The accused was then charged for being in
possession of instruments suspected to be used in the theft of motor vehicles (note:
this is not unlawful arrest bc the police had reasonable suspicion to arrest him)
- The court had to assess whether the accused had been in possession of these
instruments (was the mental and physical element complied with?)
- Court held: although it was clear that the accused had been aware of these
instruments (mental element is present), the state could not prove beyond
reasonable doubt that he had physical control over the instruments (thus the
physical component could not be proved). He was found not guilty

29
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personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
Practice questions

- This question is asking us to assess whether Anastasia acted for the purposes of
criminal law
- First level of the pyramid we must discuss is the ACT (deed/conduct)
o We must define what an act is
§ An act is a voluntary human commission or omission
o We must then define voluntariness
§ Voluntariness is X’s ability to subject his bodily movements to his own
conscious will or intellect
- Then we must discuss the grounds that exclude voluntariness
o From the facts it can be seen that we are not dealing with absolute force or
absolute impossibility. We are dealing with automatism
o We must define automatism à Automatism is where X acted in a mechanical
fashion and his body movements were not controlled by his conscious will
o From the facts it can be seen that Anastasia is not mentally ill (thus we are
not dealing with insane automatism, but rather sane automatism)
o We must define sane automatism à this is where a mentally sane person
behaves involuntarily and his unconscious conduct is not due to mental
illness
o Anastasia’s act did not occur during her epileptic fit. Therefore, epilepsy is
not a factor that excludes the voluntariness of her conduct
- Then we must apply case law
o Anastasia must rely on the defence of sane automatism based on
provocation as a result of her reading the upsetting message. The following
case law has similar facts: Henry case, McDonald case, Kok case, Marx case
§ Mention some legal factors established in these cases
§ Note: we are NOT dealing with the Victor case

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personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o In these cases, the defence of sane automatism based on provocation was
unsuccessful. This is the likely outcome of Anastasia’s case
o Advice to client: Anastasia will have to rely on some other element of
criminal liability bc the defence of sane automatism will not succeed

- Law is a body of rules governing human behaviour, prescribed by society, applied by

the courts, and enforced by the executive

- Burchell’s definition of criminal law is that it is a branch of national law that defines
certain forms of human conduct as crimes and provides for punishment of those
persons who unlawfully and with a guilty mind commit a crime.
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personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 - Snyman’s definition states that criminal law is a body of legal rules setting out the
rights and duties of the subjects of the state.
- The significance of Burchell’s definition is that it is a lot more detailed than Snyman’s
definition, it provides the elements of the crime, and it also provides consequences
of a crime (so it speaks about punishment)

- Formal criminal law can be referred to as the criminal law of evidence, and it helps
to explain procedure and proof. An example of this is the Criminal Procedure Act.
- Material criminal law can also be referred to as substantive criminal law, and it
explains the rights and duties associated with criminal law. An example of this is the
Criminal Law Sexual Offences and Related Matters Amendment Act

- The Constitution is the ultimate yardstick against which any law in South Africa is
measured. There are rights contained in the bill of rights which are especially
relevant in the context of criminal law
- An example of the consti in application to criminal law is the case of is S v
Makwanyane à where the death penalty as a punishment for crime was abolished
because of the prevailing right to life in Sec 11 of the Consti

- Sec 9 à equality à National Coalition for Gay and Lesbian Equality v Minister of
Justice
- Sec 10 à dignity à S v Williams
- Sec 11 à the right to life à S v Makwanyane
- Sec 12 à freedom and security of persons à Christian Lawyers Association of
South Africa v Minister of Health
- Sec 14 à the right to privacy à Curtis v Minister of safety and security
- Sec 16 à freedom of expression à Curtis v Min of Safety and Security
- Sec 35 à detained and arrested persons’ rights à S v Dodo & S v Freedmen

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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 - Steve will incur both civil and criminal liability. Steve lost control of his car because
he was driving negligently (which is a crime) and he knocked over pedestrian (which
is a delict). Therefore, Steve can be found criminally liable for driving recklessly, and
Eddie can institute an action for damages against Steve, for which he is delictually
liable.

- Determinism refers to the belief that anatomy is destiny, or that man is unable to
control himself and his actions are predetermined by his genetic makeup.
- In contrast, indeterminism refers to the belief that man is capable of rising above the
forces of blind causal determinism. He has freedom of will and has the ability to
control his impulses.
- Joseph is a minor in the situation (he's just finished his 6th grade dance). In SA we
follow indeterminism. However, we will adopt a mixed approach in cases where
there are deterministic factors (such as youthfulness or mental disability)
- Joseph (as a minor) will successfully be able to exclude criminal liability because of
the deterministic factor of his youthfulness

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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
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personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 - Nullum crimen sine lege = no crime without a law à Forlee case
- Ius praevium à the type of conduct performed by the accused must be recognized
by the law as a crime at the time of the commission of conduct à Masiya case +
Mahshumpa case
- Ius dicere non dare à the court does not make the law, it speaks/applies the law à
Smit case + DPP v Prins
- Ius certum à crimes should not be formulated vaguely à Agliotti case
- Ius strictum à the court should interpret the definition of a crime narrowly rather
than broadly, or they should interpret the crime in favour of the accused until the
legislature corrects itself à Smith case

When looking at the legality of a statement, we need to apply 2 tests

- 1st test à does the provision have a legal norm + a criminal law + a criminal
sanction?
o The statement above includes a legal norm à “No one is allowed to play
football in South Street Park on Friday nights after 5”
o The statement has a criminal norm à “Such conduct will amount to a crime”
o The statement has a criminal sanction à “will be punished on conviction
with a fine of R5000 or imprisonment to the maximum of 5 years”
o Therefore, the first test is fulfilled

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personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 - 2nd test à we must apply the terms/provisions of legality to the statement
o Was the conduct accepted as a crime a time of the commission of a crime? -
yes
o Is the statement certain? – yes
o Is it determined strictly? – yes
o Is the type of conduct recognized as a crime? - yes
o Is there a punishment for the crime? - yes
o It can be seen that the statement above does comply with all the provisions
of legality. Therefore, the second test is fulfilled

- The facts of the case relate to those facts that occurred in the Mahshumpa case à It
was determined in this case that the killing of a foetus cannot be considered murder
of an unborn child but will most likely be considered attempted murder of the
mother of the child.
- In terms of this case, Scotty will have no criminal liability with regard to the death of
the foetus
- Always remember the definition of the crime being committed à the murder is the
unlawful and intentional killing of another human and a foetus doesn't fall into the
definition of a human being

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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 - In terms of the Masiya case, where a nine-year-old girl was anal penetrated by the
offender, it was considered to be indecent assault and not rape. The Masiya case
extended the common law definition of rape to include anal penetration by a male
on a female. Therefore, in terms of this case, Mr. Creepy could only be held
criminally liable for indecent assault and not for the common law rape
- If the incident had happened in April 2017, then Mr. Creepy would be criminally
liable for common law rape of a minor
- If Silvia happened to be a minor male, the above answers would remain the same
Masiya timeline:
- Before May 2007 à common law rape did not include anal penetration and the
definition was gendered (only protected females)
- Masiya case occurred in May 2007 à common law rape now includes anal
penetration, but the definition of rape was still gendered
- December 2007 à the Criminal Law Sexual Offences and Related Matters
Amendment Act created a gender-neutral (and wider) definition of rape

36
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DISCLAIMER: These notes have been complied using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.