LU3:

Crimes against Life and Bodily

Integrity
MURDER
Examples: *Planned
*Alcohol
*Mercy
Statistics: Highest in the world

Death penalty: 1917 – Compulsory for murder, except: younger than 16 years;
woman murder just-born

Current punishment: Life long imprisonment (planned, rape, robbery, witness,

officer, goal) (minimum: 15 years)
 1) MURDER

Def: MURDER IS THE UNLAWFUL &

INTENTIONAL CAUSING OF THE
DEATH OF ANOTHER HUMAN
BEING.
Elements:
 UNLAWFULNESS
- If you have a valid defence – like self-defence,
emergency and statutory authorization – then you
cannot be guilty of murder.

- Consent by the deceased is no valid defence.

(Euthanasia is also not a defence)
(S v Hartman)
 INTENTION
- The state must prove beyond reasonable doubt
that the criminal meant to cause the unlawful
death.
- Any type of dolus sufficient.

Determined subjectively
Not negligence → culpable homicide
 CAUSING THE DEATH
- Causality theories applicable.

 VICTIM – ANOTHER LIVING HUMAN BEING

- Must be another human being

*Our courts have decided that suicide and attempted

suicide are not crimes. (Grotjohn)
 2) CULPABLE HOMICIDE
Def: IS THE UNLAWFUL AND NEGLIGENT
CAUSING OF THE DEATH OF
ANOTHER HUMAN BEING.

 ELEMENTS
1) Unlawful (no valid defence), killing (causation) of
another human being (not yourself).
(Same as in the case of murder)
2) Negligence – the only difference between murder
and culpable homicide.
NEGLIGENCE:

 Reasonable person test. (Objective test)

 Would the reasonable man have killed the

deceased or have foreseen his death and would he
have taken steps against the coming of death?

 Imperitia culpae adnumeratur (enters into a field of

which you don’t have any experience) – exceptions =
necessity.

 Reasonable expert test. (Doctors)

1) Versari doctrine rejected (examples) (unlawful conduct =
guilty)

2) Partial excuse theory also rejected – examples (exceeding

the boundaries of self-defence)

IMPORTANT:
• There is no such thing as attempted
culpable homicide.
You cannot attempt to be negligent.
 3) ASSAULT
There are three different forms of assault:

 COMMON ASSAULT

 ASSAULT WITH THE Type of injury

Place (finger/heart) J88
INTENT TO DO GRIEVOUS
Weapon
BODILY HARM Violence

 SEXUAL ASSAULT – Assault with indecent nature

Def: THE UNLAWFUL AND INTENTIONAL
DIRECT OR INDIRECT APPLICATION OF
FORCE TO THE BODY OF ANOTHER
(Impairment of bodily integrity
of another)
OR

THE UNLAWFUL AND

INTENTIONAL INSPIRING
OF A BELIEF IN ANOTHER
PERSON THAT FORCE
APPLIED TO HIM IS
IMMEDIATELY
THREATENING.
ELEMENTS:

1) UNLAWFULNESS
Usual grounds for justification as a defence:
 Self-defence
 Official authority (police in arresting)
 Consent to harm (when valid?)

Consent – doctor & sport

2) INTENTION
 Any type of dolus sufficient
 There is no such thing as negligent assault (Matle)
 Attempted assault – recognized but limited
3) DIRECT OR INDIRECT APPLICATION
OF FORCE

3.1) DIRECT – Stabbing, hit with clench fist or kick

with shod foot

3.2) INDIRECT – Pull chair; liqiour in coffee without

another’s consent; spit in another’s face!
(S v Marx) (S v A)

(Cause injury without touching)

4) INSPIRING A BELIEF
(Waves fists, pretends to stab etc.)
Must be immediately threatening
Victim must fear the assault against him as person
(Belief that the accused is going to assault him)
Not sufficient if accused believes that he inspires such
fear in the victim.
Subjective state of anxiety of the threatened person
must thus be tested.
Fear need not be reasonable – tested subjectively.
 ASSAULT WITH THE INTENT TO DO
GRIEVOUS BODILY HARM

Regarded as more serious than Common assault.

Elements the same BUT:
Intention to cause grievous bodily harm!
(J88 – weapon, degree of violence, part of body,
injuries)
 SEXUAL ASSAULT
◼ Indecent assault (a common law offence), was recently
replaced by sexual assault. (Now a statutory offence in
terms of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007.
◼ Section 5 of the Act defines Sexual assault:

Any person who unlawfully and intentionally

sexually violates a complainant without his/her
consent, is guilty of the crime of sexual assault.
(or inspiring of a belief of sexual violation)
The meaning of sexual violation = VERY WIDE (See
Snyman p371.
 Sexually violates
◼ Causes direct or indirect contact between: genitals and body;
◼ anus and body;
◼ breasts (of female) and body;

genitals, anus, breasts of women and body of an animal;

◼

◼ genitals, anus and breasts of women and any object (including those
resembling genitals or anus of humans and animals)
◼ Contact between mouth and
◼ genitals (male and female)
◼ anus (male and female)
◼ breasts (of female)
◼ mouth
◼ body parts that can be used in act of sexual penetration
◼ Body parts that can be sexually aroused
◼ Body parts that causes sexual arousal
◼

◼ Object resembling genitals/anus of human/animal/ breasts of female;

◼ genitals/anus of animal

◼ Masturbation of another
◼ Placing object (resembling genitals of
person / animal) into or beyond mouth
◼ of another.

(Look at words: includes, causes etc.)

 4) SEXUAL OFFENCES
1) Sexual Assault
2) Rape

OTHER: *Bestiality
*Necrophilia
*Paedophilia
*Incest
*Prostitution

IN PRACTICE: Problems – false statements, incomplete medical

reports, etc.
 RAPE
New definition (Act 32/2007):
Section 3:
Any person who unlawfully and intentionally commits an act of
sexual penetration with a complainant, without the consent of the
complainant, is guilty of the offence of rape.
Parties to the crime:
1) Perpetrator? – both male or female
2) Victim? – both male or female

ELEMENTS:

• UNLAWFULNESS

• INTENTION

• SEXUAL PENETRATION

• WITHOUT CONSENT
 UNLAWFULNESS
1) Consent?
2) Necessity
3) Official capacity e.g. a gynaecologist performing an
examination on a woman where there is penetration of the
vagina

Question:
1) Can a husband rape his wife? Is that unlawful?

 Sec. 56 of Act 32/2007 – husband and wife can rape each

other.
 2) INTENTION
• Must have intention to have act of sexual penetration without
permission
• Was the accused under the impression that he had
permission?
• Girl younger that 12 cannot give consent (according to
common law) – did accused realize that the girl was younger
than 12?
 3) SEXUAL PENETRATION
◼ A – The genital organs of one person into or beyond the
genital organs, anus or mouth of another person;

◼ B – Any other part of the body of one person or, any

object, including any part of the body of an animal, into
or beyond the genital organs or anus of another person;
or

◼ C – The genital organs of an animal, into or beyond the

mouth of another person
4) ABSENCE OF CONSENT:
 Consent by way of force = not valid

 Submission is NOT consent

 Consent acquired through fraud is not valid consent in
the following cases:
a) Misrepresentation with regards to identity. (Example
-The victim believed it was her husband with whom
she committed an act of sexual penetration)
b) Misrepresentation with regard to the
nature of the act. (Example - Operation)
(Valid consent were the victim agree to commit act of sexual
penetration, believing that she will be cured from a medical
condition.)
 What about false information given with regard to status
(wealth, etc)? – consent = valid
 Sleeping, unconscious or intoxicated people CANNOT
CONSENT – depending on degree of intoxication. ( Must be
able to appreciate what she/he is consenting to)
 Mentally retarded/deficient – can normally not consent –
depending on degree – see above.

 Younger than 12 – cannot give consent.

 Younger than 16?

 HIV-positive?
 5) CRIMEN INIURIA

Def: THE UNLAWFUL, INTENTIONAL AND

SERIOUS INFRINGEMENT OF THE
DIGNITY OR PRIVACY OF ANOTHER.

Sec. 10 Sec. 14
Crimen iniuria = COMMON LAW CRIME

ELEMENTS:

 UNLAWFULNESS

• Grounds of justification (official capacity)

• Only serious violation = unlawful (objective test)
• Everyday abuses – de minimus non curat lex
(You are a pig/bitch)
Factors to take into consideration in order to determine
whether a violation was unlawful:

• Time and place (In front of others / on duty)

• Respective ages
• Sex and social status (female/employee/employer)
• The relationship between the accused and complainant
(Strangers?)
• The way in which the accused acted.
(Tests used – subjective and objective.)
(Momberg case – “Jou lae donnerse bliksem, ag fock-off jou lae
bliksem – jy is laer as ‘n donnerse vark”)
 INTENTION
⬧ Any type of dolus = sufficient.

⬧ RvB
1) Spit in face
2) Expose
 VIOLATION 3) Sexually
assault
▪ Can take place in various ways (verbally/conduct)
▪ Abusive language – usually suggestion of sexuality or
Racism
▪ Sending indecent photos to someone , etc. (Peeping Tom)
 DIGNITY & PRIVACY
• Dignitas refers to both terms
• See descriptions in manual (respect, self-respect, value
attached to your own life)

• Dignity – the victim must by aware of violation

(2 Exceptions: Children; mentally retarded)

• Privacy – Victim does not have to be aware of

violation (Peeping Tom / Listening-in device)
 6) CRIMINAL DEFAMATION
Def: The UNLAWFUL & INTENTIONAL
PUBLICATION of ACCUSATIONS
CONCERNING ANOTHER
WHICH TEND
SERIOUSLY to INJURE
the OTHER PERSON’S
REPUTATION.

*Balance between sec. 10 &

16 (Constitution)
DISTINGUISH CRIMEN INIURIA FROM
CRIMINAL DEFAMATION:

CRIMINAL
CRIMEN INIURIA
DEFAMATION
Dignity & privacy Reputation / fama
Words or conduct Publication of accusations
towards victim to others
ELEMENTS:

 UNLAWFULNESS

General grounds for justification often raised are, e.g.:

✓ Consent
✓ Necessity

Special grounds for justification – EXCLUSIVE TO

CRIMINAL DEFAMATION:
 THE DEFAMATORY PUBLICATION WAS
THE TRUTH AND IN THE PUBLIC
INTEREST.

THE DEFAMATORY PUBLICATION BOILS

DOWN TO REASONABLE COMMENTARY

THE DEFAMATORY ALLEGATION IS MADE

AT A PRIVILEGED OCCASION
 INTENT
- Intent must be proved. (Animus iniuriandi)
- Dolus eventualis is sufficient

 PUBLICATION
o Publication of accusations must be made in:
 written, or
 verbal
announcement to someone else.
 VIOLATION OF REPUTATION

✓ A person’s reputation or fama is violated when a

publication exposes him to hatred, contempt or
ridicule. (Diminish your esteem)
 7) KIDNAPPING
Def: THE UNLAWFUL &
INTENTIONAL
DEPRIVING A PERSON
OF HIS FREEDOM OF
MOVEMENT
and/or
IF SUCH PERSON IS A CHILD,
HIS PARENTS OR
CUSTODIANS
OF THEIR CONTROL
OVER HIM.
ELEMENTS:

 UNLAWFULNESS
A court order, consent, statutory authority (to arrest
someone) or emergency (medical attention) can
amongst others make the kidnapping lawful.
Consent to kidnapping by children who are incapable of
forming an intention is not a valid defence. Neither the
consent by a person who is just temporarily in
control of the child. (School principle)

→ Even when a minor gives consent = still kidnapping

because deprives a parent of his control.
 INTENTION

• Intent must be proved with respect to each element of

the crime.
• It is suggested that dolus eventualis is a sufficient form
of intent.
• It must therefore also be the accused’s intention to
deprive the kidnapped person of his freedom.
• The duration during which a person is deprived of is
freedom can be indicative of intent – but a long period
of time is not a requirement.
3) DEPRIVATION OF FREEDOM OF MOVEMENT

o This crime can take place through violent or cunning

deprivation of freedom. (Long)
o Abduction from one place to another is not
essential. Persons who are held as hostages in one
place are also deprived of their freedom of movement.

4) OF ANOTHER PERSON

▪ The kidnapped can be a man, woman or a child.

IMPORTANT:

1) Distinguish from ABDUCTION

Removal with intent to marry
or to have sexual intercourse.

2) Cannot kidnap your own child. (Even where the other

spouse got supervision of the child in terms of a court
order. May then be prosecuted of contempt of a court
order.)
 8) ABORTION

Def: THE UNLAWFUL & INTENTIONAL

TERMINATION OF THE PREGNANCY
OF A HUMAN FEMALE.
It is an offence under the Choice on Termination
of Pregnancy Act 92 of 1996 for any person who
is not a medical practitioner (including midwife in
first 12 weeks) to procure the
termination of a pregnancy.
When can an abortion be performed?

DURING THE FIRST 12 WEEKS:

• By CHOICE (Request of woman)

(What about the father?)

• Must be done by a MEDICAL

PRACTITIONER or a REGISTERED
MIDWIFE.
FROM THE 13TH TO THE 20TH WEEKS:

May be done by a medical practitioner after consultation

with the woman under the following circumstances:

 The pregnancy was the result of incest or rape.

 A substantial risk exists that the fetus would suffer
from a severe physical or mental abnormality.
 The continued pregnancy would pose a risk of injury
to the woman’s physical or mental health.
 Continued pregnancy would significantly affect her
social or economic circumstances.
AFTER 20 WEEKS:

By a medical practitioner after consultation with another

medical practitioner or midwife under the following
circumstances:

Continued pregnancy will:

 Endanger the woman’s life.

 Result in a severe malformation of the fetus.
 Pose a risk of injury to the fetus.
*Offences in terms of this Act.
*Problem with legality.

Nowhere in the Act is it

stated that contravention of
these circumstances will be
an offence!