CMP5904/101/0/2025

Tutorial Letter 101/0/2025

Name of module
CMP5904

Year Module

Department of Criminal and Procedural Law

This tutorial letter contains important information about your module.

BARCODE

Open Rubric
 CONTENTS
Page
1 INTRODUCTION.......................................................................................................................... 3
2 MODULE OVERVIEW ................................................................................................................. 4
2.1 Purpose........................................................................................................................................ 4
2.2 Outcomes..................................................................................................................................... 4
3 CURRICULUM TRANSFORMATION .......................................................................................... 4
4 LECTURER(S) AND CONTACT DETAILS .................................................................................. 5
4.1 Lecturer(s).................................................................................................................................... 5
4.2 Department .................................................................................................................................. 5
4.3 College of Law Information Centre University ............................................................................... 5
4.4 University ..................................................................................................................................... 5
5 RESOURCES .............................................................................................................................. 7
5.1 Prescribed books, recommended books and electronic reserves (e-reserves) ............................. 7
5.2 Library Services and resources ...................................................................................................12
6 STUDENT SUPPORT SERVICES ..............................................................................................13
6.1 The Unisa First-Year Experience Programme .............................................................................13
6.2 Using Recognition of Prior Learning (RPL) to apply for module credit within a qualification .........14
6.3 Companies falsely advertising Unisa services .............................................................................15
7. STUDY PLAN .............................................................................................................................16
8 HOW TO STUDY ONLINE ..........................................................................................................16
8.1 What does it mean to study fully online? .....................................................................................16
9. ASSESSMENT ...........................................................................................................................16
9.1 Assessment criteria .....................................................................................................................16
9.2 Assessment plan .........................................................................................................................17
9.3 Types of assignments and descriptions…………………………………………………………………..17

9.4 Assessment/assignment due dates .............................................................................................18

9.5 Submission of assessments/assignments ...................................................................................18
9.6 The assessments/assignments ...................................................................................................18
9.7 The examination..........................................................................................................................19
9.7.1 Invigilation/proctoring ..................................................................................................................19
10. ACADEMIC DISHONESTY .........................................................................................................20
10.1 Plagiarism ...................................................................................................................................20
10.2 Cheating......................................................................................................................................20
10.3 For more information about plagiarism, follow the link below: ......................................................20
11. STUDENTS LIVING WITH DISABILITIES ..................................................................................20
12. A FURTHER DISCUSSION OF THE STUDY MATERIAL ..........................................................21
13. IN CLOSING ...............................................................................................................................41

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 CMP5904/101/0/2025

1 INTRODUCTION
Dear Student

Unisa is a comprehensive open distance e-learning (CODeL) higher education institution. Our
comprehensive curricula encapsulate a range of offerings, from strictly vocational to strictly
academic certificates, diplomas and degrees. Unisa's "openness" and its distance eLearning
character result in many students who may not previously have had an opportunity to enrol in higher
education registering at the university. Our CODeL character implies that our programmes are
carefully planned and structured to ensure success for students, ranging from the under-prepared
but with potential to those who are sufficiently prepared.

Teaching and learning in a CODeL context involve multiple modes of delivery, ranging from blended
to fully online learning. As a default position, all post-graduate programmes are offered fully online
with no printed study materials, while undergraduate programmes are offered using a blended mode
of delivery where printed study materials are augmented with online teaching and learning via the
learner management system, myUnisa. In some instances, undergraduate programmes are offered
fully online as well.

Furthermore, our programmes are aligned with the vision, mission and values of the University.
Unisa's commitment to serving humanity and shaping futures – combined with a clear appreciation
of our location on the African continent – means that Unisa's graduates have distinctive graduate
qualities, which include:

• being independent, resilient, responsible, and caring citizens able to fulfil and serve in
multiple roles in their immediate and future local, national and global communities

• having a critical understanding of their location on the African continent and taking account
of its histories, challenges, and potential in relation to globally diverse contexts

• the ability to critically analyse and evaluate the credibility and usefulness of information and
data from multiple sources in a globalised world with ever-increasing information and data
flows and competing worldviews

• how to apply their discipline-specific knowledges competently, ethically, and creatively to

solve real-life problems

• an awareness of their own learning and developmental needs and future potential

Please note that CMP5904 is an online module. Whether a module is offered either as blended
(meaning that we use a combination of printed and online material to engage with you) or online (all
information is available via the internet), we use myUnisa as our virtual campus. This is an online
system that is used to administer, document and deliver educational material to you and support
engagement with you. Look out for information from your lecturer as well as other Unisa platforms
to determine how to access the virtual myUnisa module site. Information on the tools that will be
available to engage with your lecturer and fellow students to support your learning will also be
communicated via various platforms.

You are encouraged to log into the module site on myUnisa regularly (that is, at least twice per
week). Since this is a fully online module, you will need to use myUnisa to study and complete the
prescribed learning activities. Visit the website for CMP5904 on myUnisa frequently. The website for
your module is CMP5904-2025-Y.

According to the syllabus for this module, students must study THREE capita for the examination.
These three capita are the following:

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 • Computer crime
• Constitutional aspects of criminal law
• Specific crimes under international criminal law

We wish you every success with your studies!

2 MODULE OVERVIEW
2.1 Purpose

The purpose of this module is for students to gain advanced knowledge, research skills, and applied
competence in criminal law for continued personal intellectual growth, gainful economic activity, and
valuable contributions to society.

2.2 Outcomes

For this module, you will have to master several outcomes:

• Specific outcome 1:

To recognise and interpret the role of criminal law in everyday life by showing a comprehensive,
coherent, and critical understanding of the theory, case law, research methodologies and techniques
relevant to criminal law.

• Specific outcome 2:

To rigorously critique and evaluate research, case law and scholarly debates regarding criminal law
to provide unbiased and balanced perspectives on legal problems within a contextual framework.

• Specific outcome 3:

To identify, analyse and solve complex multi-dimensional problems and issues relating to criminal
law originally and creatively by drawing systematically and creatively on the theory, research, case
law and literature on criminal law.

• Specific outcome 4:

Demonstrate advanced, comprehensive, and specialised academic knowledge, skills and research
techniques to play a leading role in legal practice, research and the shaping of the legal dispensation
relating to criminal law.

• Specific outcome 5:

Advance legal scholarship relating to criminal law in national and global contexts.

3 CURRICULUM TRANSFORMATION
Unisa has implemented a transformation charter that places curriculum transformation high on the
teaching and learning agenda. Curriculum transformation includes student-centred scholarship, the
pedagogical renewal of teaching and assessment practices, the scholarship of teaching and
learning, and the infusion of African epistemologies and philosophies. All of these are being phased
in at both programme and module levels. As a result of this, you will notice a marked change in the
teaching and learning strategy implemented by Unisa, together with the way in which the content is
conceptualised in your modules. We encourage you to embrace these changes during your studies
at Unisa, responsively and within the framework of transformation.

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4 LECTURER(S) AND CONTACT DETAILS

4.1 Lecturer(s)

The contact details of your lecturers are:

Prof K Naidoo (Module Leader)

Tel: (012) 429 8663
Email address: knaidoo@[Link]

Prof J Le Roux-Bouwer
Tel: (012) 429 8587
Email address: Ebouwej@[Link]

Prof N Mollema
Tel: (012) 429 8384
Email address: mollen@[Link]

Dr BJ Gordon
Tel: (012) 429 8652
Email address: bgordon@[Link]

4.2 Department

The offices of the Department of Criminal & Procedural Law are on the 8th floor of the Cas van
Vuuren Building, Unisa Main Campus, Muckleneuk Ridge, Pretoria. You are welcome to leave a
message with the departmental secretaries, on:

• (012) 429 4995 (Ms Choene Mabotja)

• (012) 429 8397 (Ms Karien Rosin)
• (012) 429 4814 (Ms Maggy Moropyane)

4.3 College of Law Information Centre University

For college-specific queries, please e-mail lawdeanery@[Link] or

CLAWinquiries@[Link]. The college can also be contacted by phoning 012 429
4718/4860/6166/3253/4428.

Please send all e-mails from your myLife e-mail account. If you send an e-mail directly
to a Unisa e-mail address, include your student number in the subject line to ensure that your
e-mail is correctly routed to an adviser for processing.

4.4 University

To assist Unisa to safeguard your personal information, please ensure that you only use your myLife
e-mail account when communicating with the university. We will not be responding to any emails
sent from private email addresses.

By using your myLife e-mail account, the university has a reasonable assurance that we are
communicating with you, as your e-mail address contains your student number, and you use your
login credentials to access the account.

Unisa may only communicate with a student using a private e-mail address under the following
circumstances:
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 • New applicants who are enquiring about information for the purpose of applying for
admission.
• New applicants who do not yet have a myLife e-mail account, because they have been
admitted but not yet registered.
• Where a student requires assistance in resolving myLife e-mail account access
problems.

Please be aware that any personal information you publish on public platforms, such as social media
platforms, Telegram and WhatsApp groups, are not covered by the provisions of Protection of
Personal Information Act 4 of 2013. Any personal information published in the public domain is not
considered private and can, therefore be accessed by external parties with access to such platforms.

To contact the university, please dial 080 000 1870. Remember to keep your student number at
hand when contacting the university. The Unisa Student Communication Service Centre will be
open weekdays from 08:00 – 16:00 (South African Standard Time).

Please send all e-mails from your myLife e-mail account. If you send an e-mail directly to a Unisa
e-mail address, include your student number in the subject line to ensure that your e-mail is correctly
routed to an adviser for processing.

Please check the list carefully and send an enquiry to one e-mail address only. This will ensure
that there is no confusion as to who must respond, thereby preventing unnecessary delays in the
response or the e-mail being portrayed as spam. Students should only forward enquiries to the
Registrar and Deputy Registrar in instances where those enquiries could not be resolved at other
levels.

TYPE OF QUERY E-MAIL ADDRESS TELEPHONE NUMBER

ICT
myUnisa myUnisaHelp@[Link] 012 429 3111 (Option 2)
myLife myLifeHelp@[Link] 012 429 3111 (Option 2)
STUDENT ADMISSIONS AND REGISTRATIONS
General applications and study-info@[Link]
registration queries
College of Law jus@[Link]
International students international@[Link]
Exemptions adhoccredits@[Link]
Access and matriculation ame@[Link]
exemption

Re-admissions study-info@[Link]
STUDENT ASSESSMENT ADMINISTRATION
General assignment assign@[Link]
enquiries
General exam queries exams@[Link] 012 429 8641
Aegrotat exams aegrotats@[Link] 012 429 8641
Exam arrangements for examdisabled@[Link] 012 429 8641
students with disabilities
Exam admission examadmission@[Link] 012 429 8641

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 CMP5904/101/0/2025

International students examinternational@[Link] + 27 12 429 2268

Remarks remark@[Link] 012 429 8641
Purchase of an exam script purchasescript@[Link] 012 429 8641
FINANCE
Student account enquiries finan@[Link] 012 429 2441/4299
STUDENT FUNDING
General student funding enquiries letsomp@[Link] 012 441 5600
STUDY MATERIAL
Despatch enquiries despatch@[Link]

Contact addresses of the various administrative departments appear on the Unisa website:
[Link]

Please include your student number in all correspondence.

5 RESOURCES

5.1 Prescribed books, recommended books and e-reserves

Section I: Computer Crime

Prescribed Books

(1) Gerke M Understanding Cybercrime: Phenomena, Challenges and Legal Response 2014
International Telecommunications Union (ITU), ch 2 (“the Phenomenon of Cyber Crime”),
ch 3 (“Challenges of fighting cybercrime”, ch 4 (“Anti-Cybercrime Strategies”), which is to
be found at the following website: [Link]
D/Cybersecurity/Documents/[Link] (11-35; 77-88;101 -107) (42)

(2) Hildebrandt M Law for Computer Scientists and Other Folk 2020 Oxford University Press,
Chapter 6 – Cybercrime (Pages 163-174 “6.1.1 Computer Crime”). These pages are freely
available at Google Books.

[Link]
er+Scientists+and+Other+Folk&hl=en&sa=X&redir_esc=y#v=onepage&q=Law%20for%20Comput
er%20Scientists%20and%20Other%20Folk&f=false (2)

Articles

(1) Badenhorst C “Legal responses to cyberbullying” 2011 CJCP Issue Paper No 10 1-20. Can
be accessed free online at Unisa CMP5904 e-Reserves. (20)

(2) Burden K and Palmer C et al “Cybercrime – A new breed of criminal” 2003 Computer Law
and Security Report (vol 19 no 3) 222. Can be accessed free online at Unisa CMP5904 e-
Reserves. (6)

(3) Cassim F “Addressing specialised legislation to address the growing spectre of cybercrime:
a comparative study” 2009 PER (Potchefstroom Electronic Law Journal) Vol 12 No 4 36-79.
Can be accessed free online at [Link] (43)

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 (4) Cassim F “Formulating adequate legislation to address cyber-bullying: Has the law kept pace
with advancing technology” 2013(1) SACJ (South African Journal of Criminal Justice) 1-
20. Can be accessed free online at
[Link]
(20)

(5) Cassim F “Addressing the spectre of phishing: are adequate measures in place to protect
victims of phishing?” 2014 CILSA vol 47(3) 401-428. (27)

(6) Chitimira H and Ncube P "The Regulation and Use of Artificial Intelligence and 5G Technology
to Combat Cybercrime and Financial Crime in South African Banks" PER / PELJ 2021(24) -
DOI [Link] Can be accesses free online at
[Link]
uence=1&isAllowed=y (33)

(7) Coetzee SA, “Educator sexual misconduct: Exposing or causing learners to be exposed to
child pornography or pornography.” PER / PELJ 2015(18(6)) pp 2108-2139. Can be accessed
free online at [Link] (33)

(8) Gordon BJ “Automated Facial Recognition in Law Enforcement: The Queen (On Application
of Edward Bridges) v The Chief Constable of South Wales Police” PER / PELJ 2021(24) - DOI
[Link] 3781/2021/v24i0a8923. Can be accesses free online at
[Link]
=1&isAllowed=y (29)

(9) Gordon S and Ford R “On the definition and classification of cybercrime.” Journal in
computer virology 2006 2(1) pp13-20. Can be accessed free online at
[Link]
(8)

(10) Laubscher M and Van Vollenhoven WJ “Cyberbullying: Should schools choose between
safety and privacy?” PER / PELJ 2015(18)(6) pp 2219-2263. Can be accessed free online at
[Link] (46)

(11) Watney MM “Regulation of Internet pornography in South Africa (part 1)” 2006 THRHR 227-
237. Can be accessed free online at Unisa CMP5904 e-Reserves. (11)

(12) Watney MM “Regulation of Internet pornography in South Africa (part 2)” 2006 THRHR 381-
395. Can be accessed free online at Unisa CMP5904 e-Reserves. (15)

(13) Watney MM “Malicious injury to property caused by a computer virus” Journal of South African
Law Issue 3 2005 603-609. Can be accessed free online at Unisa CMP5904 e-Reserves. (7)

(14) Weber AM “The Council of Europe's Convention on Cybercrime.” Berkeley Technology Law
Journal. 2003 18(1) pp 425-46. Can be accessed free online at
[Link]

(15) Snail ka Mtuze S and Musoni M. “An overview of cybercrime law in South Africa.” International
Cybersecurity Law Review. (2023). Can be accessed free online at
[Link]

(16) Smit DM “Cyberbullying in South African and American Schools: A Legal Comparative
Study” SA Journal of Education 35 2 (2015) 1 Available at:
[Link]

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Legislation

The Cybercrimes Act 19 of 2020; Chapters 1 and 2. This Act is available on the Internet at
[Link] Note that the PDF
is the Government Gazette, where every alternate page is in English.

Treaties

The Council of Europe’s Treaty on Cybercrime (Budapest 2001) which can be found at the
following website: [Link] Here you have to
study Section 1 Articles 2-9. (5)

The African Union Convention on Cyber Security and Personal Data Protection (Addis Ababa 2014)
which can be found at the following website:
[Link]
african_union_convention_on_cyber_security_and_personal_data_protection_e.pdf
Here you must study Articles 29(1) to 29(4). (3)

Section II: Constitutional aspects of Criminal law

Prescribed books

(1) CR Snyman Criminal Law 7ed (2020) 23-25; 31-42; 117-120; 215-217; 222-233; 267-274;
305-327; 332-335; 338-339. (70)

Permalink e-book:

[Link]
[Link]/[Link]?direct=true&db=nlebk&AN=2725553&site=ehost-
live&scope=site
The above link to the e-book will take you to the Unisa Library site. You will be required to log in with
your Unisa username and password to access the e-book. Please note that you will not be able to
download more than two pages of this book at a time. However, the e-book may be read online.

(2) J Burchell Principles of Criminal Law 5ed (2016) 10-46; 197-207; 475-504; 610-632; 634-
635; 640-647; 790-793. (98)

(3) I Currie & J de Waal The Bill of Rights Handbook 5ed (2005) 374-385. (12)

Articles

(1) R Louw “Recent Cases” (discussion of the judgment in Mamabolo 2001 (1) SACR 686 (CC))
in 2002 SACJ 374-375 (3)
(2) GE Devenish “Prior judicial restraint and media freedom in South Africa: Some cause for
Concern” 2010 THRHR 12-27 (16)
(3) R Louw “Recent Cases” (discussion of the judgment in S v Jordan 2002 (2) SACR 299 (CC))
in 2002 SACJ 376-380 (5)
(4) CR Snyman “Extending the scope of rape – a dangerous precedent” 2007 SALJ 677- 687
(10)
(5) K Phelps and S Kazee “The Constitutional Court gets anal about rape: gender neutrality and
the principle of legality in Masiya v DPP” 2007 SACJ 341-360 (19)
(6) S Hoctor “Dignity, Criminal law and the Bill of Rights” 2004 SALJ 304-317 (14)
(7) L Jordaan “New perspectives on the criminal liability of corporate bodies” 2003 Acta Juridica
48-71 (23)
(8) W le Roux “Sex work, the right to occupational freedom and the constitutional politics of
recognition” 2003 SALJ 452-465 (14)

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 (9) L Jordaan “Recent Cases General Principles and Specific Offences- S v Ndebele 2012 SACJ
vol 24 314-318 (5)

Legislation

(1) Choice on Termination of Pregnancy Act 92 of 1996

(2) Chapter 2 of the Constitution of the Republic of South Africa, 1996
(3) The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Case law

(1) S v Lavhenga 1996 (2) SACR 453 (W) (44)

(2) S v Mamabolo 2001 (1) SACR 686 (CC) (17)
(3) National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (2) SACR 556
(CC) (60)
(4) S v Jordan 2002 (2) SACR 499 (CC) (50)
(5) Christian Lawyers Association of South Africa v Minister of Health 1998 (4) SA (T) (15)
(6) Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) (2)
(7) Thebus 2003 (2) SACR 319 (CC) (25)
(8) M 2004 (1) SACR 228 (O) (10)
(9) Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied Legal
Studies and another, amici curiae) 2007 (5) SA 30 (CC) (34)
(10) Hoho v S 2009 (1) SACR 276 (SCA) 276-291 (15)
(11) S v SA Metal & Machinery Co (Pty) Ltd 2010 (2) SACR 413 (SCA) 413-419 (7)
(12) The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and
Constitutional Development 2014 (1) SACR 327 (CC) (25)
(13) The Minister of Justice and Correctional Services; The Minister of Health; The National
Director of Public Prosecutions; The Health professions Council of South African and Estate
Late Robert James Stransham-Ford (Case number 531/2015) (100)
(14) Prince v Minister of Justice and Constitutional Development and Others (Western Cape
Division, Cape Town) Case No: 8760/2013 (66)
(15) Freedom of Religion South Africa v Minister of Justice and Constitutional Development
2020 1 SACR 113 (CC)
(16) S v YG 2018 (1) SACR 64 (GJ)
(17) Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)
(18) S v Jacobs 2019 (1) SACR (CC)
(19) Prince v President of the Law Society of the Cape of Good Hope 2002 (1) SACR 432 (CC)

Section III: Specific Crimes under International Criminal law

Prescribed books

(1) Kemp G (editor) Criminal Law in South Africa (2018). Please refer to PART IV (Chapters
46-49) titled ‘International Criminal Law’ by S Walker.
Permalink to e-book: [Link]
[Link]/[Link]?direct=true&db=nlebk&AN=2453093&site=ehost-
live&scope=site

The above link to the e-book will take you to the Unisa Library site. You will be required to
log in with your Unisa username and password to access the e-book.

(2) Werle G and Jessberger F Principles of International Criminal law (2020). Please see
chapter 1 and chapter 3.
Permalink to e-book:
[Link]
[Link]/display/10.1093/law/9780198826859.001.0001/law-9780198826859

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 CMP5904/101/0/2025

The above link to the e-book will take you to the Unisa Library site. You will be required to
log in with your Unisa username and password to access the e-book.

(3) Zahar A & Sluiter G International Criminal law (2008) 129-136; 156-196; 170-172; 197-218,
490-503 (42)

Book Chapter

(1) Knust, N & Lingenfelter, K “Individual Criminal Responsibility Beyond the State: Human
Trafficking as Both a Transnational and an International Crime (2020) in J. Winterdyk, J.
Jones (eds.), The Palgrave International Handbook of Human Trafficking,
[Link] 8_107

Articles

(1) Du Plessis M “Bringing the International Criminal Court home - the implementation of the Rome
Statute of the International Criminal Court Act 2002” 2003 (16) SACJ 1 (16)
(2) Du Plessis M “South Africa's Implementation of the ICC Statute: An African Example” 2007 (5)
J Int Criminal Justice 460 (20)
(3) MacKinnon CA “Defining Rape Internationally: A Comment on Akayesu” 2006 (44) Colum. J.
Transnat'l L. 940 (16)
(4) Schomburg W & Peterson I “Genuine Consent to Sexual Violence Under International Criminal
Law” 2007 (101) Am. J. Int'l L. 121 (26)
(5) Akhavan P “The Crime of Genocide in the ICTR Jurisprudence” 2005 (3) J Int Criminal Justice
989 (18)
(6) Mollema N “Combating human trafficking in South Africa: A critical evaluation of the Prevention
and Combating of Trafficking in Persons Act 7 of 2103” 2014 77(2) Journal of Contemporary
Roman-Dutch Law 246 (16)
(7) Gallagher A & Holmes P “Developing an Effective Criminal Justice Response to Human
Trafficking: Lessons from the Front Line” 2008 18(3) International Criminal Justice Review
318-343 (25)
(8) Moran, CF “Human trafficking and the Rome Statute of the International Criminal Court” 2014
The Age of Human Rights Journal, pp. 32-45 (14)
(9) Van der Wilt, H “Trafficking in human beings, enslavement, crimes against humanity:
Unravelling the concepts” 2014 Chinese Journal of International Law, pp. 297–315 (18)
(10) Chenwi, L “Universal Jurisdiction and South Africa's Perspective on the Investigation of
International Crimes” 2014 131 S. African Law Journal pp. 27- 45
(11) Langer M & and Mackenzie E, “The Quiet Expansion of Universal Jurisdiction” 2019 30(3) The
European Journal of International Law pp. 779-817
(12) O’Keefe R “Universal Jurisdiction: Clarifying the Basic Concept” 2004 (2) Journal of
International Criminal Justice pp. 735-760
(13) Van Der Merwe, B “Reflections on the Trivialisation of Genocide: Can we afford to part with
the special stigma attached to Genocide?” 2016 (2) South African Journal of Criminal Justice
pp. 116-139.
(14) Ahdab, D “The Rebirth of Universal Jurisdiction: How the Syrian Conflict
Has Led to the Expansion of the Use of Universal Jurisdiction” 2023 (61) Columbia Journal
of Transnational Law: The Bulletin pp. 85-123.
(15) Geneuss, J & Mariniello, T “Introduction: Twenty Years of the Rome Statute: Functions, Goals,
Effectiveness – Challenges of the International Criminal Court” 2019 (19) International
Criminal Law Review pp. 905-909

Legislation

(1) Rome Statute of the International Criminal Court 1998 articles 1-9; article 22, 23, 25, 30, 31
(10)
(2) Implementation of the Rome Statute Act 27 of 2002 (sections 1-5) (4)

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 (3) Elements of Crime Act 2002: General Introduction - Article 6 (a) – (e); Article 7 - General
Introduction Article 7(1)(f) and 7(1)(g)-1 and g(6); Article 8(2)(a)(ii)-I; Article 8(2)(b)(xxii)-I;
Article 8(2)(c)(i)-4; Article 8(2)(e)(vi)-I (7).

Case law

You must know the principles and importance of the following cases as discussed in the prescribed
works. NB: due to the length of the cases you need, however, only study the relevant parts as
discussed in the prescribed articles and textbooks.

(1) Prosecutor v Akayesu, Case No ICTR 96-4-T, Judgment, P 688 (Sept 2, 1998) (176).
(2) Prosecutor v Furundzija, Case No IT-95-17/1-T, Judgment (Dec 10, 1998) (103).
(3) Prosecutor v Kunarac et al, Case Nos IT-96-23-T & IT-96-23/1-T, Judgment (Feb 22, 2001)
(318).
(4) Prosecutor v Musema (ICTR 96–13-A), Trial Chamber I, 27 January 2000 (19).

Search for E-reserves at [Link]

E-reserves can be downloaded from the library webpage, option Find E-reserves.

5.2 Library services and resources

The Unisa Library offers a range of information services and resources and has made numerous
library guides available at [Link]

Recommended guides:

• For brief information on the library, go to [Link]

• For more detailed library information, go to
[Link]
• For Frequently Asked Questions, go to
[Link]
• For research support and services such as the Personal Librarian service and the
Information Search Librarian's Literature Search Request (on your research topic) service,
go to [Link]
support
• For library training for undergraduate students, go to
[Link]
• For Lending Services, go to [Link]
services/Lending-services
• For Services for Postgraduate students, go to
[Link]
• For Support and Services for students with disabilities, go to
[Link]
needs
• For Library Technology Support, go to [Link]
• For information on finding and using library resources and tools, go to
[Link]
• For an A–Z list of library databases, go to [Link]

Important contact information:

• Technical problems encountered in accessing library online services: Lib-help@[Link]

• General library-related queries: Library-enquiries@[Link]
• Queries related to library fines and payments: Library-fines@[Link]
• Interlibrary loan service for postgraduate students: libr-ill@[Link]
• Literature Search Service: Lib-search@[Link]
• Social media channels: Facebook: UnisaLibrary and X Twitter: @UnisaLibrary

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To view the Library orientation video – please click here : Unisa Library and Information
Services Video_1_1 (2).mp4

6 STUDENT SUPPORT SERVICES

The Study @ Unisa brochure is available on myUnisa at [Link]/brochures/studies
This brochure contains important information and guidelines for successful studies through Unisa.
If you need assistance concerning the myModules system, you are welcome to use the following
contact details:

• Toll-free landline: 0800 00 1870 (Select option 07 for myModules)

• E-mail: mymodule22@[Link] or myUnisaHelp@[Link]

You can access and view short videos on topics such as how to view your calendar, how to access
module content, how to view announcements for modules, how to submit assessments and how to
participate in forum activities by visiting [Link]

Registered Unisa students receive a free myLife e-mail account. Important information, notices
and updates are sent exclusively to this account.

Please claim your e-mail account immediately after registering at Unisa by following this link:
[Link]
[Link]
Note that it can take up to 24 hours for your account to be activated after you have claimed it.

Your myLife account is the only e-mail account recognised by Unisa for official correspondence
between you and the University and it will remain your official primary e-mail address on record
at Unisa.

You remain responsible for the management of this e-mail account.

6.1 The Unisa First-Year Experience Programme

Many students find the transition from school education to tertiary education stressful and this is
often true for students enrolling at Unisa for the first time. Unisa is a dedicated open distance and e-
learning institution and is very different from face-to-face/contact institutions. It is a mega university,
and all its programmes are offered through either blended learning or fully online learning. For these
reasons, we offer first-time students additional/extended support to help them navigate the Unisa
teaching and learning journey seamlessly and with little difficulty and few barriers.

Unisa’s First-Year Experience (FYE) Programme has been specially designed to provide you with
prompt and helpful information about the services that the institution offers.

The following FYE services are currently available:

13
 FYE Website Email Support

[Link]/FYE fye@[Link]

FYE1500
Post-
myUnisa; Study
Registration Skills; Academic &
Orientation Digital Literacies;
Referrals to other
support services etc
e.g. Counselling;
Reading & Writing
workshops

To ensure that you do not miss out on important academic and support communication from
the SRU, please check your myLife inbox regularly.

6.2 Using Recognition of Prior Learning (RPL) to apply for module credit within a qualification.

Now that you are a registered student, you are advised to familiarise yourself with the learning
outcomes of the module or modules you have chosen. If you have been exposed to those learning
outcomes for three years or more – either through work experience or other involvement – you can
apply to be exempted from completing assignments and writing examinations. As part of your
application for this exemption, you will be required to compile a portfolio of evidence substantiating
how your experience is equivalent to the learning outcomes. The diagram below shows the steps
involved in obtaining recognition of prior learning (RPL) for module credit. For more information on
the process, RPL fees, and the contact details of your college RPL coordinator, visit the Unisa
website: [Link]/rpl

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 CMP5904/101/0/2025

6.3 Companies falsely advertising Unisa services

Some companies and social media pages have been falsely advertising Unisa online information
and various services to assist Unisa students. In the process, companies either solicit money
fraudulently from students, or make money through online advertising with no benefit to students.
These companies are in no way associated or related to Unisa.

We request that students only use official Unisa sites and platforms as any other platforms will
provide you with incorrect information and/or act illegally which will be harmful to your studies.

Unisa will always use official communication channels (e.g. Unisa website, myUnisa,Unisa
social media platforms, myLife e-mail) to communicate with students. Please use the
following Unisa platforms for official Unisa information:

 [Link]
 [Link]
 [Link]
 [Link]
 [Link]

Please note that WhatsApp or Telegram are not official Unisa communication platforms and
the information published on such platforms is not quality assured by Unisa. However, some
lecturers may use these platforms as additional communication channels and will specifically
inform you of this on myUnisa.

15
7 STUDY PLAN

7.1 Study approach

It is of the utmost importance that you realise from the outset, that this module is an advanced study
of various aspects of substantive criminal law. This module is pitched at NQF level 9, which means
that mere factual knowledge of applicable rules (as was required in the corresponding LLB course)
will not suffice. You will have to deal critically with the subject matter to gain proper insight into the
issues discussed. It will therefore be to your advantage to read as much as possible on the different
topics.

You will encounter conflicting opinions in the discourse, which means that you will have to choose a
viewpoint and be able to defend your position by substantiating it with proper legal arguments.
Corresponding rules in selected foreign legal systems will provide you with further insight, which is
why it is important to take cognisance of the law in foreign legal systems.

Please refer to the reading list which comprises your study material. Do not limit your studies to one
or two South African textbooks on criminal law to the exclusion of the prescribed articles. You must
study the prescribed articles as it will help you to gain insight into and understand the more difficult
aspects concerning some of the topics. Questions based exclusively on the contents of these articles
may be asked in the examination. Ensure that you are aware of and read the most important relevant
South African cases, especially recent judgments. You may contact your lecturers if you experience
any problems with your studies.

8 HOW TO STUDY ONLINE

8.1 What does it mean to study fully online?

Studying fully online modules differs completely from studying some of your other modules at Unisa.
All your study material and learning activities for online modules are designed to be delivered online
on myUnisa.

All your assignments must be submitted online. This means that you will do all your activities and
submit all your assignments on myUnisa. In other words, you may NOT post your assignments to
Unisa using the South African Post Office. Also note that you may NOT email your assignments to
your lecturer.

All communication between you and the University happens online. Lecturers will communicate with
you via e-mail and SMS, and use the Announcements, the Discussion Forums and the Questions
and Answers tools. You can also use all these platforms to ask questions and contact your lecturers.

9. ASSESSMENT
9.1 Assessment criteria

Assignments form an integral part of the module. As you conduct research, you are actively engaged
in learning how to write well. In the assignments, you must prove that you have the required
knowledge and insight into the subject to answer the relevant questions critically. You must submit
THREE compulsory assignments to sit for the examination in this module.

We will post commentaries on the compulsory assignments on the module website to all students
who are registered for this module, and not only to those students who submitted the assignments.
The commentaries are intended to assist you to improve your performance in subsequent
assignments and in the examination.

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 CMP5904/101/0/2025

The assignments you must do in this module will be assessed in terms of the outcomes that have
been stated above and the assessment criteria below:

Assessment criteria:

• Legal theory and practice relating to criminal law are reflected on and critically evaluated in
national and global contexts.
• Areas in need of legal development or law reform are recognised and addressed.
• Historical and/or comparative research methods are applied to develop answers to current
issues and complex problems relating to criminal law.
• The legal implications of South African conditions relating to criminal law are interpreted in
national and global perspectives.
• Technology, research, literature, and authoritative sources of law are used independently to
produce a research report.
• The results of research are communicated effectively by producing research reports which
meet the standards of scholarly and professional writing.
• Formative assessments of research reports are used to critically evaluate those reports and
to engage in critical self-evaluation.
• Research and analytical skills to produce critical and well-founded legal arguments relating
to criminal law with confidence and to take full responsibility for arguments.

9.2 Assessment plan

You must log into the module site on myUnisa to access the following:

• the due dates for assignments

• the actual assignments that must be completed
• how to submit your assignments
• admission to the exam
• the examination

As has been mentioned above; to gain admission to the examination, you will be required to submit
THREE assignments.

The assignment weighting for the module is:

• Assignment 01 is compulsory and counts 33% towards your year mark.

• Assignment 02 is also compulsory and counts 34% towards your year mark.
• Assignment 03 is also compulsory and counts 33% towards your year mark.

Assignments 01 + 02 + 03 are added together to form your year mark which contributes 40% towards
the final mark for the course.

9.3 Types of assignments and descriptions

• Assessment/assignment due dates will be made available to you on the myUnisa landing
page for this module. We envisage that the due dates will be available to you upon
registration.
• Please start working on your assessments as soon as you register for the module.
• Log on to the myUnisa site for this module to obtain more information on the due dates
for the submission of the assessments/assignments.

17
9.4 Assessment/assignment due dates

There are no assignment due dates included in this tutorial letter.

• Assignment due dates will be made available to you on the myUnisa landing page for this
module. We envisage that the due dates will be available to you upon registration.
• Assignments are no longer given unique numbers.

9.5 Submission of assessments/assignments

• Unisa, as a comprehensive open distance e-learning institution (CODeL), is moving towards

becoming an online institution. You will see, therefore, that all your study material,
assessments and engagements with your lecturer will take place online. To facilitate this, we
use myUnisa as our virtual campus.

• The myUnisa virtual campus offers students access to the myModules site, where learning
material is available online and where assessments should be completed. Together,
myUnisa and myModules form an online system that is used to administer, document, and
deliver educational material to students and support engagement between those students
and Unisa’s academics.

• The myUnisa platform can be accessed via [Link] Click on the myModules
2025 button to access the online sites for the modules that you are registered for.

• The University undertakes to communicate clearly and as frequently as is necessary to

ensure that you obtain the greatest benefit from your use of the myModules learning
management system. Please access the Announcements on your myModules site regularly,
as this is where your lecturer will post important information to be shared with you.

• When you access your myModules site for the module/s you are registered for, you will see
a welcome message posted by your lecturer. Below the welcome message you will see the
assessment shells for the assessments that you need to complete. Assessments for this
module will be written assessments/assignments. All assessments must be completed on
the assessment shells available on the respective module platforms.

• For written assessments/assignments, please note the due date by which your work must be
submitted. Ensure that you follow the guidelines given by your lecturer to complete the
assessment/assignment. Click on the submission button on the relevant assessment shell
on myModules. You will then be able to upload your written assessment to the myModules
site for the modules that you are registered for. Before you finalise the upload, double-check
that you have selected the correct file for uploading. Remember, no marks can be allocated
for incorrectly submitted assessments/assignments.

• You may not email your assessment to your lecturer.

9.6 The assessments/assignments

You need to complete THREE assignments for this module.

There are no assignments included in this tutorial letter. Assignments and due dates will be made
available to you on myModules for this module. We envisage that the due dates will be available to
you upon registration.

Formal requirements for assignments and referencing

These are the formal requirements that apply to ALL assignments. You will be penalized for not
complying with these requirements.
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 CMP5904/101/0/2025

• The text of all documents must be typed in font type Arial and font size 12. Footnotes must
also be in Arial, but in font size 10.
• The text of the document must be justified, in 1.5 spacing and with 12pt after each paragraph.
• Footnotes must be justified, in single spacing and with no spaces after each footnote. It must
also have a "hanging indent" of 1.25cm.
• All margins must be 2.5cm, but the left margin must be 3cm.
• All headings must be aligned left, in Arial font 11 and numbered numerically (i.e. 1, 1.1, 1.1.1,
etc.). The main heading is in bold, secondary headings in italics and thereafter in ordinary
script. The title of the document can be centred and in ALL CAPS.
• All assignments must include a bibliography.
• All assignments must include a title page.

The most important way to ensure that your work passes the test of academic integrity is to indicate
where you found information. This shows that what you are saying is not your own idea, but that you
found it or read it somewhere else. Conversely, anything without a reference is regarded as being a
claim that this is your own idea. So, if you make a statement that is not your own idea but without
giving a reference, you are committing plagiarism. That is why it is so important to get this right! It is
the most technically challenging part of your studies, and it is important that you adhere to the rules
set out below.

For the basic referencing style in the Unisa School of Law, please refer to the contents of
Tutorial Letter 301/2025. Please note that since 2022, the Unisa School of Law, makes use
of the OSCOLA (Oxfort University Standard for Citation of Legal Authorities) method of
referencing.

9.7 The examination

Examination information and details on the format of the examination will be made available to you
online via the myUnisa site. Look out for information that will be shared with you by your lecturer and
e-tutors (where relevant), as well as for communication from the University.

9.7.1 Invigilation/proctoring

Since 2020, Unisa has conducted all its assessments online. Given the stringent requirements
imposed by professional bodies, as well as increased solicitation of Unisa’s students by third parties
to unlawfully assist them with the completion of assignments and examinations, the University is
obliged to assure the integrity of its assessment integrity by using various proctoring tools: Turnitin,
Moodle Proctoring, the Invigilator App and IRIS. These tools authenticate the student’s identity and
flag suspicious behaviour oritto assure the credibility of their responses during assessments. The
description below is for your benefit as you may encounter any or all of these in your registered
modules:

Turnitin is plagiarism software that facilitates checks for originality in students’ submissions against
internal and external sources. Turnitin assists in identifying academic fraud and ghost-writing.
Students are expected to submit typed responses when using the Turnitin software.

The Moodle Proctoring tool is facial recognition software that authenticates students’ identities
during their Quiz assessments. This tool requires access to a student’s mobile or laptop camera.
Students must ensure that their cameras are activated in their browser settings prior to starting their
assessments.

The Invigilator is a mobile application-based service that verifies the identity of an assessment
participant. The Invigilator app detects student dishonesty-by-proxy and ensures that the
assessment participant is the student registered for the module concerned. This invigilation tool
requires students to download the app from the Google Play Store (Android devices), the Huawei
AppGallery (Huawei devices) or the Apple App Store (Apple devices) on their camera-enabled
mobile devices prior to their assessment.

19
 Students who are identified and flagged for suspicious or dishonest behaviour arising from the
invigilation and proctoring reports will be referred to the disciplinary office for formal proceedings.

Please note:
Students must refer to their module assessment information on their myModule sites to determine
which proctoring or invigilation tool will be used for their formative and summative assessments.

10 ACADEMIC DISHONESTY
10.1 Plagiarism

Plagiarism is the act of taking the words, ideas and thoughts of others and presenting them as your
own. It is a form of theft. Plagiarism includes the following forms of academic dishonesty:

• Copying and pasting from any source without acknowledging that source.
• Not including references or deliberately inserting incorrect bibliographic information.
• Paraphrasing without acknowledging the source of the information.

10.2 Cheating

Cheating includes, but is not limited to, the following:

• Completing assessments on behalf of another student, copying the work of another student
during an assessment, or allowing another student to copy your work.
• Using social media (e.g. WhatsApp, Telegram) or other platforms to disseminate assessment
information.
• Submitting corrupt or irrelevant files. (This matter is addressed in the examination
guidelines.)
• Buying completed answers from so-called “tutors” or internet sites (contract cheating).

10.3 For more information about plagiarism, follow the link below:
[Link]

11 STUDENTS LIVING WITH DISABILITIES

The Advocacy and Resource Centre for Students with Disabilities (ARCSWiD) provides an
opportunity for staff to interact with first-time and returning students with disabilities.

For information about the services that ARCSWiD offers, please click on the following link: Support
for students with disabilities ([Link]) and for general enquiries, email Arcswid@[Link].

If you are a student with a disability and would like additional support, or if you need additional time
for assignments/assessments, you are invited to contact (Prof. K Naidoo Knaidoo@[Link]) to
discuss the assistance that you need.

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 CMP5904/101/0/2025

12 A FURTHER DISCUSSION OF THE PRESCRIBED MATERIAL

SECTION I: COMPUTER CRIME (LECTURER: DR BJ GORDON)

1. General Introduction

Computer crime, also known as cybercrime, refers to criminal activities that are committed
using computers, computer networks, or other electronic devices. The term "computer crime"
lacks a precise definition because cybercrimes encompass a wide range of illegal activities,
and technology is constantly evolving, leading to new forms of cyber threats. As technology
advances, cybercriminals find innovative ways to exploit vulnerabilities and launch attacks,
making it challenging to have a fixed definition for this type of crime.

A computer may become the ‘object’ of a crime when theft of the computer hardware or
software occurs. A computer may also become the ‘subject’ of a crime when it is used as an
instrument to commit traditional crimes such as fraud, theft, extortion, and ‘new’ types of
criminal behaviour such as identity theft, phishing, child pornography, cyber bullying, or cyber
terrorism.

A computer can be involved in cybercrime in two ways:

1. As the 'object' of a crime: This occurs when a computer or its components, such as
hardware or software, are targeted for theft or unauthorized access. For example,
stealing a laptop or hacking into a computer system to steal sensitive data.

2. As the 'subject' of a crime: In this scenario, a computer is used as a tool or instrument

to commit various types of crimes. Cybercriminals leverage computers and the
internet to facilitate traditional criminal activities, such as financial fraud, identity theft,
and extortion. Additionally, the digital realm has given rise to new forms of criminal
behaviour like phishing (fraudulent attempts to obtain sensitive information),
cyberbullying, child pornography, and cyber terrorism.

There are numerous challenges facing computer crime, such as the ease with which it can
be committed, the lack of resources required, the anonymity involved, and jurisdictional
difficulties, to name a few.

Several challenges make combating computer crime complex and demanding:

• Ease of Committing Cybercrime: Cybercriminals can operate from anywhere in the

world and launch attacks with relative anonymity. The internet provides a vast space
for criminals to hide their identities and locations, making it challenging for law
enforcement to track and apprehend them.

• Lack of Resources Required: Compared to traditional crimes, cybercrimes often

require fewer resources and can be executed on a large scale with minimal costs.
This accessibility makes cybercrime appealing to a wide range of offenders.

• Anonymity Involved: Cybercriminals can use various techniques to conceal their

identities, such as using virtual private networks (VPNs) and sophisticated hacking
methods. This makes it difficult for investigators to identify and apprehend the
perpetrators.
• Jurisdictional Difficulties: Cybercrimes often transcend national borders, involving
criminals and victims from different countries. Coordinating international efforts to
investigate and prosecute cybercrimes can be challenging due to variations in laws
and legal systems across jurisdictions.

21
 Given the unique nature of cybercrime and its global impact, there has been a call for
specialized legislation and international cooperation to combat these criminal activities
effectively. Governments worldwide are working to enact cybercrime laws that address digital
threats, protect individuals and businesses, and enable law enforcement agencies to respond
swiftly to cyber incidents.

2. History of South African Cyber-legislation

In the late 1990s, when it became evident that the Internet was a global phenomenon, it also
became apparent that global coordination is necessary to deal with Internet crime. Criminals
could launch attacks from one country, target victims in another, and store data on servers
located anywhere in the world. This realization highlighted the need for global coordination
and cooperation in addressing internet-related criminal activities.

The Council of Europe Convention on Cybercrime was created to provide a framework on

which signatory countries could base their legislation. It is an international treaty designed to
combat cybercrime. It was adopted in Budapest, Hungary, in 2001, and provides a framework
for signatory countries to adopt legislation and cooperate in investigating and prosecuting
cybercrime.

South Africa recognized the importance of international cooperation in combating cybercrime

and became a signatory to the Budapest Convention. When formulating its domestic
cybercrime legislation, South Africa drew upon the provisions of the Budapest Convention
as a basis for its own legal framework.

To align with the principles of the Budapest Convention and address cybercrime
domestically, South Africa incorporated relevant provisions in its Electronic Communications
and Transactions Act 25 of 2002 (ECT Act). Sections 85-89 of the ECT Act focused on
cybercrime-related offences and provided a legal framework to combat cyber threats.

Sections 85-89 of the ECT Act covered various cybercrime-related offences and penalties,
including unauthorized access to computer systems, data interference, computer-related
fraud, and the distribution of harmful data messages. These provisions aimed to provide a
legal basis for prosecuting cybercriminals and protecting internet users from digital threats.

In 2020, the criminal provisions (sections 85-89 of the Electronic Communications and
Transactions Act) were replaced by the Cybercrimes Act 19 of 2020. This updated and
expanded the cybercrimes found in the Electronic Communications and Transactions Act
and also created a number of new crimes.

So, the criminal provisions found in sections 85-89 of the Electronic Communications and
Transactions Act have been repealed and are no longer in force. The Cybercrimes Act
now contains all the cybercrimes found in South Africa.

3. The Cybercrimes Act 19 of 2020

The Cybercrimes Act 19 of 2020 is a comprehensive piece of legislation aimed at addressing

cybercrime in South Africa. It was signed into law on 1 June 2021 and came into operation
in December 2021. The Act seeks to combat a wide range of cyber threats and provide law
enforcement agencies with the necessary tools to investigate and prosecute cybercriminals.

The Cybercrimes Act covers various offences related to unauthorized access to computer
systems, data interference, computer-related fraud, cyber forgery, cyber extortion, and other
cybercrimes. It introduces stringent penalties for offenders, reflecting the seriousness of
cybercrime and its potential impact on individuals, businesses, and national security.

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 CMP5904/101/0/2025

Key provisions of the Cybercrimes Act include:

• Unlawful access to computer systems and data interference.

• Cyber fraud and cyber forgery, which target the unauthorized manipulation of data
and computer programs for fraudulent purposes.
• Cyber extortion, where individuals use cyber threats to coerce others into taking
specific actions or providing benefits.
• Aggravated offences that involve attacking restricted computer systems, causing
harm to people or the public, or creating emergency situations.
• Provisions addressing the theft of incorporeal property and the interpretation of the
common law offence of theft to include cybercrime.

The Cybercrimes Act also establishes the National Cybercrime Centre and empowers law
enforcement agencies to investigate cybercrime effectively. It enables international
cooperation in dealing with cross-border cyber threats and aligns with international
frameworks, such as the Budapest Convention.

By enacting the Cybercrimes Act, South Africa aims to enhance cybersecurity, protect
individuals and organizations from cyber threats, and create a safer digital environment for
its citizens.

4. African Convention on Cyber Security and Personal Data Protection

The African Convention on Cyber Security and Personal Data Protection was adopted on 27
June 2014 with the aim of harmonizing cybersecurity and data protection laws on the African
continent.

Article 29 addresses attacks on Computer Systems: The convention requires member states
to criminalize various acts, such as unauthorized access to computer systems, data
interference, hindering the functioning of computer systems, and fraudulent data entry.

The section also requires that member states adopt regulations for information and
communication product vendors. Any vendor of an information and communication product
must have vulnerability and safety guarantee assessments carried out on their products.
They must disclose any vulnerabilities detected and recommended solutions to consumers.

The last part of the section mentions that member states must make it a criminal offence to
unlawfully produce, sell, import, possess, disseminate, or make available computer
equipment, programs, or any device or data specially adapted to commit offences. This
includes generating or producing unauthorized passwords, access codes, or similar data for
illegal access to computer systems.

Thus, the African Convention on Cyber Security and Personal Data Protection aims to
promote cybersecurity, protect personal data, and facilitate regional cooperation in
combating cyber threats. South Africa, while not being a signatory or ratifying the treaty, can
still benefit from the principles and best practices outlined in the convention to bolster its
cybersecurity efforts.

Please contact Dr B Gordon to discuss any difficulty that you may experience with the above
caput.

23
 SECTION II: CONSTITUTIONAL ASPECTS OF CRIMINAL LAW (Lecturer: Prof J Le Roux-
Bouwer)

Criminal liability of corporate bodies

You must study the discussion of the criminal liability of corporate bodies in Burchell 448 - 460. You
must know the difference between the liability of a corporate body for the crimes of a director or
servant of the corporate body and the (former) liability of a director for the crimes committed by a
corporate body. In S v Coetzee 1997 (1) SACR 379 (CC) the Constitutional Court held that the latter
form of liability is unconstitutional. Make a careful study of the views of Jordaan (2003 Acta Juridica)
that the current basis of criminal liability of corporate bodies may possibly be challenged on
constitutional grounds. Also read S v SA Metal & Machinery Co (Pty) Ltd 2010 (2) SACR 412 (SCA).
The case is a good example of the unsatisfactory outcome of the application of section 332(1) of the
Criminal Procedure Act.

1. General

In the discussion which follows, attention will be drawn to those rules of substantive law which
have been influenced by the Bill of Rights in the Constitution or, which may possibly in future
be challenged on constitutional grounds. The list below is not necessarily complete; it is, of
course, possible that constitutional aspects of rules or principles not included in the list below
may still crop up in future.

2. Method of study

You must read the judgments listed. Some judgments of the Constitutional Court are quite
lengthy. Please do not feel discouraged by the length of a judgment. Concentrate on those
parts of the judgment which deal with substantive criminal law. You need not, for example,
read parts of the judgment which deal only with procedural law or with evidentiary aspects of
the issues brought before the court. Focus on the most important arguments advanced by a
court or judge as support for his or her conclusion. You must know what the legal point of
dispute in the case was, what conclusion was reached by the court and, very importantly, the
reasons for the court’s conclusion.

We recommend that you make a summary of each prescribed case. Certain cases, especially
those of the Constitutional Court, contain minority judgments. You must also take note of
these minority judgments and be able to describe in broad outline the contents of such
judgments. By taking note of such minority judgments, one acquires a more critical insight
into the court’s evaluation of the relevant legal issue.

The Bill of Rights is set out in sections 7 to 37 of the Constitution. For examination purposes
we do not expect you to be able to set out and discuss each right contained in these sections.
However, you must have knowledge of all these provisions in order to properly understand
the topics and judgments mentioned below. Sections 35 and 36 are of particular importance
for the purposes of this caput. Note especially the contents of the limitation clause in section
36.

3. Topics to be studied

We next proceed to give particulars of the different aspects of criminal law in respect of which
constitutional issues come to the fore, and which you must study.

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 CMP5904/101/0/2025

3.1 The Principle of legality

You must first know what the principle of legality in criminal law entails. For this purpose, you
must study the discussion of this principle in Burchell 34-42 and Snyman chapter 1 F (pp 36-
49). You must be able to set out the definition of this principle in the discussion of this topic
in Snyman; know the content of the constitutional provisions (s 35(3)(l)) and (n) and t also
the five different rules embodied in this principle. You must know whether each of the five
rules is recognised expressly or implicitly in the Constitution.

In Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied Legal
Studies and another, amici curiae) 2007 (5) SA 30 (CC) the question was raised whether a
court may extend the definition of a crime on constitutional grounds. You must make a careful
study of this judgment. It is also expected of you to know the views of Snyman (2007 SALJ)
and Phelps and Kajee (2007SACJ) on the Masiya decision and to discuss their views
critically.

In S v Ndebele 2012 (1) SACR 245 (GSJ) the court ruled that the crime of theft is defined
broadly enough to include the appropriation of electricity. Previously, appropriation or stealing
of electricity was not regarded by our courts as common-law theft. Thus, in Ndebele the court
extended the field of application of an existing offence. Note that the court did not rely on s
39(2) of the Constitution to extend the field of application of the offence but based its power
to do so on common law. Consider whether this judgment can be reconciled with the principle
of legality which is now recognised as a constitutional right of the accused person. Also
consider the views of Jordaan in 2012 SACJ 314-318.

3.2 Disciplinary chastisement

Before the coming into operation of the Constitution, not only parents, but also teachers and
people in loco parentis, such as people in charge of school hostels, had the right to punish
the children in their charge with moderate and reasonable corporal punishment to maintain
authority and discipline. Although the Constitutional Court has not yet expressly ruled on this
matter, it can be accepted with certainty that teachers no longer have any right to administer
corporal punishment to children in their charge. You must understand this topic as discussed
in Snyman 137 and Burchell 193-195. Note the provisions of section 10 of the South African
Schools Act 84 of 1996, as well as the decisions in S v Williams 1995 (2) SACR 251 (CC)
and Ex parte Attorney-General, Namibia: in re corporal Punishment by Organs of the State
1991 (3) SA 76 (NS) mentioned in Snyman. Also read the case Christian Education South
Africa v Minister of Education 2000 (4) SA 757 (CC).

Since child abuse at the hands of parents is so prevalent in South Africa the question has
arisen whether corporal punishment of children by their parents should not be completely
banned. Section 39(3) of the Constitution requires that legislation, common law, and
customary law must be compatible with the Bill of Rights. Therefore, it may be contended
that even the reasonable-and-moderate-disciplinary-chastisement defence which currently
forms part of our common law amounts to an infringement of children’s rights, in particular
children’s rights to dignity and physical integrity. See the position in other jurisdictions
discussed by Burchell 193-203.

Consider the constitutionality of the common-law defence in view of constitutional

imperatives and some policy considerations discussed by Burchell.

25
 3.3 The common purpose doctrine

In Thebus 2003 (2) SACR 319 (CC), the Constitutional Court had to establish whether the
doctrine of common purpose is unconstitutional. The court found that the liability based upon
active association with a common purpose is in fact constitutional.

It is advisable to refresh your memory about what this doctrine entails by briefly reading the
discussion of the doctrine in Snyman 255-264. The judgment in Thebus deals with two legal
issues. Firstly, the question whether the doctrine of common purpose is constitutional, and
secondly the evidentiary question regarding whether an accused’s right to silence means
that his failure to reveal his alibi at a relatively early stage of the police investigation may
count against him. For the purposes of this module, you need not read the portions of the
judgment dealing with the evidentiary question.

Read only that part of the judgment dealing with the constitutionality of the doctrine of
common purpose. Briefly note the facts in the case. These are set out on pages 329-332 of
the judgment (i.e., the judgment of Moseneke J). The question as to the constitutionality of
the doctrine is dealt with in paragraphs 18 to 41 of the judgment of Moseneke J. This part of
the judgment is important for your purposes. The other judges who also delivered judgments
agreed with Moseneke J on his views regarding the constitutionality of the doctrine. Their
judgments deal only with the evidentiary question, and therefore you need not read their
judgments. The part of the judgment which is important for the purposes of this course is also
summarised in the head note on pages 322f-323i. It is expected of you to discuss the decision
in Thebus critically. Of importance is the view of Burchell (465-493). Make sure that you
understand his argument that the doctrine is unconstitutional and keep in mind that only
common-purpose liability based on active association was declared constitutional in the
Thebus case.

3.4 High treason

See the discussion of this crime in Snyman 299-308. You need not study the whole crime.
You must, however, know the definition of the crime appearing in paragraph 1. Note the
different ways in which this crime can be committed as well as the intention requirement. The
most important part of the discussion of the crime is the discussion on the effect of the Bill of
Rights on the existing legal provisions relating to high treason. It seems likely that certain
aspects of the definition of the crime may be unconstitutional.

3.5 Contempt of court

This crime is discussed in Burchell 32, 838-849 and Snyman 315-327. You must know the
definition of the crime. The crime can be subdivided into several “sub-offences” which often
have requirements of their own. As will become clear from the discussion below, you need
not study all the different forms of the crime, but only those where constitutional issues are
relevant.

Paragraph 6 (317) in Snyman deals with contempt in facie curiae. Just read this paragraph,
ensuring that you understand, and broad overview of what this form of the crime entails. Such
knowledge is necessary for a proper understanding of paragraph 7, in which the
constitutionality of this form of contempt is discussed. You must know the contents of this
paragraph. You must also read the judgment in S v Lavhenga 1996 (2) SACR 453 (W).

Paragraph 8 (320) in Snyman deals with the form of the crime known as “the publication of
information regarding a pending case”. You must know the contents of this paragraph and
whether this form of contempt of court is reconcilable with the right to freedom of expression
in section 16(1) of the Constitution.

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Paragraphs 11, 12 and 13 in Snyman (322-324) and Burchell 844-847 deal with the form of
the crime known as “scandalising the court”. In S v Mamabolo 2001 (1) SACR 686 (CC) the
Constitutional Court held that this form of the crime is constitutional. You must read this
judgment. It is important to study also Snyman’s criticism of this judgment in paragraph 13
(see also Burchell 846). Also read the useful summary of this judgment by Ronald Louw in
2001South African Journal of Criminal Justice 411-413. Also study the criticism of this
judgment by Hoctor (2004 SALJ 314, footnote 74). For a broader discussion of the right to
freedom of expression as applied in civil and criminal law in South Africa as well as in other
jurisdictions, read Devenish in 2010 THRHR 12-27. You do not have to study this article, but
you are required to read it in order to gain a better insight into the topic.

3.6 Decriminalisation of sodomy

Before the coming into operation of the present Constitution anal sexual intercourse between
men, whether consensual or not, was punishable as sodomy. Sodomy therefore referred to
homosexual sexual intercourse with either a consenting or a non-consenting party.

In National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (2) SACR 556
(CC) the Constitutional Court held that the former crime of sodomy is unconstitutional, since
its existence is incompatible with the right to equality (which includes the right not to be
discriminated against on the ground of sexual orientation), the right to dignity and the right to
privacy, and because the violation of these rights cannot be justified in terms of the limitation
clause in section 36 of the Constitution. You must study this judgment. Note that since the
enactment of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 cases of non-consensual anal intercourse by a male with a male (the victim) can be
prosecuted under the new definition of rape (section 3).

3.7 Prostitution

Prostitution as such has not been a crime in terms of South African criminal law before 1988.
The Act previously known as the “Immorality Act” 23 of 1957 criminalised certain acts relating
to prostitution, such as advertising to be a prostitute or living from the proceeds of prostitution.
However, it did not criminalise the act committed by the prostitute, namely the act of having
sexual intercourse for reward. The Immorality Amendment Act 2 of 1988 renamed the
Immorality Act the “Sexual Offences Act”, and for the first time explicitly criminalised the act
of the prostitute, that is the sexual intercourse for reward. The section that brought about this
amendment was section 20(1)(aA), which stipulated:

Any person who - ...

(a) has unlawful carnal intercourse, or commits an act of indecency,
with another person for reward shall be guilty of an offence”

In S v Jordan 2002 (2) SACR 499 (CC) the Constitutional Court considered whether the
criminalisation of prostitution in terms of this act was constitutional. The majority of the court
found that the provision did not unjustifiably violate the prostitute’s rights to dignity, privacy,
freedom and security and freedom of economic activity. The court was of the opinion that the
prohibition did not discriminate against women because it was applicable to both male and
female persons. According to the court the client of a prostitute could be prosecuted as a
socius criminis in terms of the common-law or in terms of section 18 of the Riotous
Assemblies Act 1957.

However, in a minority opinion, O Regan J and Sachs J reached the conclusion that section
20(1)(aA) was indeed unconstitutional. You must read this case and should be able to
discuss the arguments advanced in the majority as well as the minority judgments. Also read
the useful summary of this judgment by Ronald Louw in 2002 South African Journal for
Criminal Justice 376–380 as well as Hoctor’s discussion of the crime (2004 SALJ 313).
According to Le Roux (2003 SALJ) the prohibition of prostitution may still be challenged on

27
 the ground that it amounts to an unjustifiable violation of a person’s right to free economic
activity (s 22 of the Constitution). You must consider his point of view critically.

The new Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
repealed and replaced the 1988 Act, including section 20(1)(aA). Section 11 of the new Act
criminalises the engagement of persons 18 years or older in sexual services for financial or
other reward, favour or compensation to Y or a third person (Z). For X to be convicted of this
offence the act must be performed for the purpose of engaging in a sexual act with Y
(irrespective of whether the sexual act is in fact committed or not) (s 11(a)) or by committing
a sexual act with Y (s 11(b)). Therefore, a person who engages the services of a prostitute
(18 years or older, male or female) may be convicted of this offence. The section does not
also expressly criminalise the activity of Y, the prostitute. However, it is clear that if Y’s
conduct furthers or promotes the criminal activity of X, Y may be convicted of being an
accomplice to the crime committed by X. See Snyman 373-377 for a detailed discussion of
section 11. You must consider whether the crime in section 11 may be challenged on
constitutional grounds.

Your current analysis must engage the developments in the Criminal Law (Sexual Offences
and Related Matters) Amendment Bill of 2022 (In re: -The decriminalisation of sex work in
South Africa).

3.8 Consensual sexual intercourse between children

In The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and
Constitutional Development 2014 (1) SACR 327 (CC) the Constitutional Court considered
the constitutionality of punishing consensual sexual conduct between children 12 years or
older but under the age of 16 years. The relevant provisions of the Sexual Offences Act 32
of 2007 are sections 15 and 16. Section 15(1) of the 2007 Act made it an offence for a person
(X) to commit an act of sexual penetration with a child (a person between the ages of 12 and
16 years) and section 16(1) made it an offence for a person (X) to commit an act of sexual
violation with a child (a person between the ages of 12 and 16 years).

The court explained that the crime created in section 15 could be committed in the following
circumstances:

Firstly, if an adult (a person 18 years or older) or a minor (person of 16 years but under the
age of 18) engaged in consensual sexual penetration with an adolescent (a person 12 years
or older but under the age of 16 years).

Secondly, the crime could be committed when adolescents (children 12 years or older but
under the age of 16 years) engaged in consensual sexual penetration with each other.

Section 16 of the Act contained the same provisions as section 15 except that it criminalised
"sexual violation", which is broadly defined as "direct or indirect contact" and included some
forms of masturbation by another person, petting and even kissing.

A "close-in-age" defence was available to a child who had been charged with sexual
penetration or sexual violation which means that the accused child could rely on the defence
that both accused were children and that the age difference between them was no more than
two years (section 56(2)(b) of the Act). As pointed out by the court (at para 24), if a 12-year-
old person and a 15-year-old person engaged in kissing they were both committing an
offence in terms of section 16. If the 15-year-old was prosecuted, the 12-year-old also had
to be prosecuted and neither could rely on the close-in-age defence.

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The North Gauteng High Court had ruled that these provisions unjustifiably infringe children’s
constitutional rights to dignity, privacy and bodily and psychological integrity as well as their
rights in terms of section 28(2) of the Constitution. The Constitutional Court confirmed the
ruling of the High Court. The provisions of sections 15 and 16 of the Sexual Offences Act 32
of 2007 were declared inconsistent with the Constitution and invalid to the extent that they
impose criminal liability on children under the age of 16 years. Because of the complexity of
the matter (for example, the need to impose criminal liability on an adult for engaging in
sexual conduct with a consenting adolescent) the declaration of invalidity was suspended for
a period of 18 months to allow parliament to amend the provisions. It is expected of you to
study this decision and to consider the arguments advanced by the Constitutional Court why
the provisions were deemed to be in violation of these rights of children.

Note that the amendments required in terms of the Teddy Bear case are now reflected in the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 5 of 2015 which came
into effect on 3rd July 2015. In the preamble of the Act, it is stated that the primary objective
of sections 15 and 16 of the Act is to protect children who are 12 years or older but under the
age of 16 from ADULT sexual predators. Therefore, the amendment does not mean that the
age of consent to sexual acts is now lowered to 12 years. In accordance with the decision in
the Teddy Bear case the following amendments have been made:

Section 1 of Act 5 of 2015 now provides that a “child” means a person under the age of 18
years.

Section 15(1) which deals with consensual sexual penetration of a child now provides that a
person (X) who commits an act of sexual penetration with a child (Y) who is 12 years of age
or older but under the age of 16 is, despite the consent of Y, guilty of the offence of having
committed an act of consensual sexual penetration with a child, unless X, at the time of the
commission of such act, was:

(a) 12 years of age or older but under the age of 16 years; or

(b) either 16 or 17 years old and the age difference between X and Y was not more than
two years.

Therefore, if X, a 15-year-old boy sexually penetrates Y, a 12-year-old girl with her consent,
he does not commit an offence in terms of section 15. Also, if a 17-year-old boy sexually
penetrates a 15-year-old girl with her consent he does not commit an offence in terms of
section 15.

It is also provided in the amendment that the institution of a prosecution for an offence
referred to in subsection (1) must be authorised in writing by the Director of Public
Prosecutions if X was either 16 or 17 years of age at the time of the alleged commission of
the offence and the age difference between X and Y was MORE than two years. This means
that it may be open to the relevant Director of Public Prosecutions to authorize a prosecution
in the instance where, for example, X a 17-year-old boy had sexually penetrated a 14-year-
old girl with her consent. However, this power may be delegated.

Section 16 of the Act provides the same as section 15 above, except that it relates to sexual
violation instead of sexual penetration.

Because the position is now regulated in terms of the amended sections 15 and 16, section
9 of Act 5 of 2015 provides for the deletion of the defence set out in section 56(2)(b) of the
2007 Act.

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 3.9 Abortion

Abortion was, prior to 1975, a common-law crime. In 1975 the common-law crime was
replaced by a new statutory crime created in the Abortion and Sterilization Act 2 of 1976. In
terms of this Act, it was lawful to perform an abortion in certain circumstances. In 1996 this
1976 Act was revoked and replaced by the Choice on Termination of Pregnancy Act 92 of
1996. This Act introduced a significant liberalisation of abortion laws. In terms of this Act, it
is now lawful to perform an abortion even if the woman is pregnant for as long as 20 or more
weeks, provided the circumstances set out in the Act are present. You must read the Act,
especially section 2, in which the three situations in which an abortion may lawfully be
performed, are set out.

In terms of this act, it is an offence for a person other than a medical practitioner or registered
midwife to perform an abortion, or to prevent the lawful termination of an abortion or to
obstruct access to a facility where abortion may legally be terminated.

In Christian Lawyers Association of SA v Minister of Health 1998 (4) SA 1113 (T) the plaintiff
sought an order declaring this Act unconstitutional. The plaintiff argued that the life of a foetus
is protected by section 11 of the Constitution, which provides that everyone has a right to life.
The court considered the legal position of a foetus in common law and concluded that in
order to determine the issue, it was not necessary for the court to decide what the legal
position of an unborn child was under common law.

Rather the question should be to establish what the position would be in terms of the
Constitution. As there is no express provision in the Constitution affording the foetus
protection, and as the Court could not find any indication in either section 11 or section 28
(which specifically protects children) that the foetus is protected, it concluded that the foetus
was not protected in terms of the Constitution. The Act was therefore not unconstitutional.
You must read this case and be able to discuss the question relating to whether a foetus has
a right to life. See also Burchell at page 13 and especially footnote 67 where he points out
that the judgment “has limited impact as the constitutionality of permissive abortion legislation
cannot be reduced to the question of whether a foetus is a person or not”.

3.10 Bestiality

The common-law offence of bestiality consisted in the unlawful and intentional sexual
relations between a human being and an animal. In M 2004 (1) SACR 228 (O) the Free State
court had to decide whether the existence of this crime is compatible with the provisions of
the Constitution. The court held that it is indeed compatible with the Constitution. The
judgment is in Afrikaans. If you cannot read Afrikaans, merely read the headnote of this case.
The common-law offence of bestiality has been replaced by a broad statutory offence.
Section 13 of the new Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007 criminalises bestiality in section 13 and provides that:

A person ('A') who unlawfully and intentionally commits an act-

(a) which causes penetration to any extent whatsoever by the genital organs of A (i) A
into or beyond the mouth, genital organs or anus of an animal; or (ii) an animal into
or beyond the mouth, genital organs or anus of A; or

(b) of masturbation of an animal, unless such act is committed for scientific reasons or
breeding purposes, or of masturbation with an animal, is guilty of the offence of
bestiality.

See Burchell 31 and Snyman 381-382 for a discussion of this crime.

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3.11 Criminal defamation

The use of the criminal sanction to punish defamation is criticised by legal writers because it
amounts to the violation of the constitutional right to freedom of speech (s 16 of the
Constitution). In Hoho v S 2009 (1) SACR 276 (CC) the Constitutional Court held, however,
that the crime can be reconciled with the Constitution. Study this decision and take note of
the reasons advanced by the court why the use of the criminal law to punish defamation (the
violation of the reputation of another person) is not viewed as an unjustifiable violation of the
right to freedom of speech. See also Burchell 625-231.

3.12 Assisted suicide – physician assisted suicide and physician assisted euthanasia

The constitutionality of the absolute prohibition of active physician-assisted dying was

considered for the first time in Stransham-Ford v Minister of Justice and Correctional
Services and Others 2015 (4) SA 50 (GP). This case concerned an urgent application by a
terminally ill person, Adv Stransham Ford, to be assisted by a physician to end his life, either
by the administration of a lethal agent or by providing him with the lethal agent to administer
himself. The court granted the order ruling that a medical doctor who complies with the
request will not be acting unlawfully, and that the current absolute prohibition of assisted
suicide unjustifiably limit the applicant’s constitutional rights to human dignity and freedom to
bodily and psychological integrity.

The respondents appealed against the granting of the order in The Minister of Justice and
Correctional Services; The Minister of Health; The National Director of Public Prosecutions;
The Health professions Council of South African and Estate Late Robert James Stransham-
Ford (Case number 531/2015) and the crucial issue before the Supreme Court was whether
a cause of action still existed at the time that the order was made since the applicant had in
fact died two hours earlier. In a unanimous decision, the court answered this question in the
negative and set aside the order for three reasons that it deemed ‘interrelated’ (at para [5]).
First, because the applicant had died two hours before the order was made, the cause of
action no longer existed. It did not pass onto the estate which lacked locus standi to pursue
further litigation. Second, that the current state of the law in this complex area as well as the
constitutional issues in relation to the interpretation of the Bill of Rights and the development
of the common law was not sufficiently examined by the court of first instance. Third, that the
order was made on an incorrect and restricted factual basis, without complying with the
Uniform Rules of Court and without affording all interested parties a proper opportunity to be
heard.

Wallis JA viewed these circumstances as having made it inappropriate for the court to
engage in a reconsideration of the common law (at para [5]). Concerning the first reason,
Wallis JA pointed out that the development of the common law as ordered by the court was
related to the claim of the applicant alone and therefore, was no longer necessary or relevant
(at para [15]). It was purely a personal action, the purpose of which was to obtain a court
order enabling the applicant to die in a manner of his choosing (at para [20]). The court added
(at para [21]) that constitutional issues, like issues in any other litigation, only arise for
decision where it is necessary to decide the constitutional issue on the particular facts of the
case. Because there was no longer an existing controversy at the time the order was made,
the matter had ceased to be justiciable.

For the purpose of substantive criminal law, the second reason for upholding the appeal is
of more significance and importance for your study. Wallis JA deemed it necessary to discuss
issues relating to assisted dying in South African law and referred also briefly to foreign law.
First, he distinguished refusal by a person with mental and legal capacity to receive medical
treatment as an aspect of personal autonomy grounded in constitutional values (at [para [31])
and noted that non-treatment or cessation of treatment in such circumstances is not
punishable. The court noted that such refusal to receive treatment may refer to invasive
surgery, the administration of drugs or therapies and the use of machines such as respirators.

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 A cessation of feeding or nutrition (be it of an artificial nature) also does not lead to criminal
liability, provided that the patient had refused such nutrition and feeding.

If the patient was not in position to express his or her wishes in this regard, for instance, if a
person was in a permanent vegetative state, or a child, the medical practitioner would also
not commit an offence if treatment that “serves neither a therapeutic nor a palliative purpose”
is ceased. The decision is made by the medical practitioner in conjunction with family or any
other persons having a responsibility for the patient, and where there is uncertainty, or a
difference of views, may be desirable to get a declaratory order from a court (at para [33].

No offence is also committed by a medical practitioner by prescribing drugs by way of

palliative treatment for pain that the doctor knows will have the effect of hastening the
patient’s death. Wallis JA remarked that this, so-called ‘double effect’, where drugs serve the
purpose for which they were prescribed but have also potentially detrimental side effects,
does not lead to criminal liability (referring to Clarke v Hurst NO and Others 1992 (4) SA 630
(D) at 656H-L at para [34]). The court observed that there are, therefore ‘many steps available
to both individuals facing the type of intolerable situation described above and to the medical
practitioners responsible for their care that will not result in interminable, purposeless
treatment or the preservation of life as a purely mechanical process artificially maintained’
(para [35]. Wallis JA added that there was also uncontested evidence before the court that
there have been advances in palliative care, both in terms of training and in the provision of
care through the hospice movement that may serve to alleviate the suffering of the terminally
ill.

The legal position with relation to, what it refers to as ‘mercy killing’ is then considered (at
para [36]). Mercy killing, the court explains, means killing out of compassion and not on the
request of the patient. Such conduct constitutes the crime of murder (referring to the cases
of S v Hartmann 1975 (3) SA 532 (C) and S v Bellocq 1975 (3) A 538 (T) as instances of
mercy killing). The court pointed out that such instances have nothing to do with assisted
suicide (PAS) or active voluntary euthanasia (PAE) since a request to be assisted to die is
absent in these instances. Continuing with a discussion of PAS and PAE, the court correctly
indicates that even if the deceased had requested to be assisted in dying (in other words,
had given his or her consent to dying), it makes no difference to the legal consequences of
the act which remains unlawful and amounts to murder (at para [38]).

The court then made the point that it was this principle of criminal law, namely that one cannot
consent to being killed, that was challenged by Adv Stransham-Ford in the court of first
instance. Wallis JA criticised the judgment of Fabricius J in the court of first instance, for not
having sufficiently addressed the principle of consent relating to murder and the cases
relevant to this principle (at para [41]. Due regard should also have been given to the fact
that only four countries in the world permit PAE. An order making such a ‘profound change
to our law of murder’ without consideration of applicable principles had to be set aside (at
para [41]. Also, the possibility of PAE was, according to Wallis JA, academic since no doctor
had come forward to say that he or she was prepared to administer a lethal substance.
Therefore, the High Court was not able to consider whether and in terms of what conditions
the law in regard to consent as a defence to a charge or murder needed to be developed.

The court then turned to a consideration of the alternative relief sought by Adv Stransham-
Ford, namely that a medical practitioner be authorised to enable him to terminate his own life
by merely providing him with a lethal agent to commit suicide - referred to as physician
assisted suicide (PAS). Wallis J analysed the case of Ex parte Die Minister van Justisie: In
re S v Grotjohn 1970 (2) SA 355 (A) which provides authority that a person who helps another
to commit suicide may, depending on the circumstances, be found guilty of murder or
culpable homicide. Of importance is the analysis of the element of causation by Steyn CJ in
Grotjohn, emphasised by Wallis JA (at [34, citing from Grotjohn 364B-H, as translated by
Wallis J himself]:

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The conclusion can hardly be avoided that he who provides the desired or
necessary means for an intended suicide, has a causative role therein if
suicide is committed; and if he does that willingly and knowingly, with the
requisite intention of putting an end to the life of the person who wishes to
commit suicide, he is guilty of murder even though the final act is formed by
the non-criminal hand of the deceased, because he [the accused] has then
unlawfully and intentionally complicit [sic] in ending the life of another.

Of significance for future interpretation of the law relating to the unlawfulness of physician-
assisted suicide (PAS), is the observation by Wallis JA that whereas these principles were
easy to apply to the facts in the Grotjohn case (a man handing his depressed wife a loaded
gun and inviting her to shoot herself, adding that she is a burden to him) it is ‘to say the least,
debatable how to apply these principles to a failed suicide pact or the case of a medical
practitioner who reluctantly and at the insistence of a dying patient provides the means for
them to commit suicide, while counselling them against doing so’ (at para [52]). Wallis JA
stressed this point by stating (at para [54]) that:

the court did not decide that a criminal offence is committed whenever a
person encourages, helps, or enables someone to commit suicide …. .
Whether they will depend on the facts of the case and issues of intention
(mens rea), unlawfulness and causation. It follows that it cannot be said that
in the current state of our law PAS is in all circumstances unlawful. (own
emphasis).

In future, Wallis JA stated, a court confronted with PAS, will have to consider the Grotjohn
principles and how they should be applied today, taking into consideration how medical
circumstances have changed in the last fifty years and also the provisions of s 39(2) of the
Constitution, ‘which requires that in the development of the common law the court must strive
to give effect to the nature purport and objects of the Bill of Rights’ (at para [55]). He
envisages that the approach to causation in this type of situation in other jurisdictions may
be helpful but that a court will have to decide whether development of the common law would
relate to causation, unlawfulness, or to intention (mens rea).

Wallis JA commented further that the possibility of a defence specifically for medical
practitioners may arise and should be explored (at para [56]). The court subsequently sets
out the evolution of the law in jurisdictions which allow some form of PAE or PAS, noting that
it differs widely from jurisdiction to jurisdiction (at para [58]). The approach in a foreign
jurisdiction cannot merely be adopted also in South Africa, of course. The court then
expressed its concerns relating to the proper regulation of PAE in South Africa with its lack
of proper healthcare and palliative care (at para [98]). Wallis JA concluded that:

[b]efore a court could be satisfied that the acknowledged risks attendant upon
permitting PAE or PAS could be guarded against by way of regulation, as is
the case in other countries, it would need to be satisfied that a proper
regulatory framework was, or could be put in in place and that the framework
would not be a pious hope designed in a bureaucrat or idealist’s office, but
one the functional operations of which had been tested and not found wanting.

He added that a court should take notice of different cultural values and attitudes in our
diverse population, ‘beyond affluent suburbs into our crowded townships, our informal
settlements and the vast rural areas that make up South Africa’ (at para [100]). The judgment
of Wallis JA now sets the stage for further debate on the topic as clearly acknowledged in
this ruling, that there is room for recognition of the legality of at least PAS in terms of the
existing common law. You are required to read this judgment, focusing on the issues that
relate to substantive criminal law, as summarised above.

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 3.13 Decriminalisation of the private use of cannabis

In the Western Cape High Court case of Prince v Minister of Justice and Constitutional
Development and Others (Western Cape Division, Cape Town) Case No: 8760/2013, the
court considered the constitutionality of the prohibition on the use of cannabis and the
possession, purchase of cultivation thereof for personal or communal consumption. The key
sections which were the subject of this dispute were sections 4(b) and 5(b) of the Drugs and
Drug Trafficking Act 140 of 1992 (Drugs Act) and section 22A of the Medicines and Related
Substances Act 101 of 1965 (Medicines Act).

In essence, section 4(b) of the Drugs Act provides that:

No person shall use or have in his possession any dangerous dependence-producing

substance or any undesirable dependence-producing substance unless he is a patient who
has acquired or bought any such substance in a lawful manner, as specifically provided for
in the Act. Cannabis is listed as such substance under Schedule 7 of the Medicines Control
Council: Schedules. Section i) supply of cannabis. Subsection (10) provides an overriding
prohibition on the sale or administration of cannabis other than for medicinal business.

The applicants applied to the court that these sections be declared invalid on the grounds
that the criminal prohibition on the use and possession of cannabis in their own homes and
"properly designated places" was unconstitutional (para [11]). In particular, they contended
that, pursuant to the impugned legislation, fundamental rights such as equality, dignity and
freedom of religion and most importantly, the right to privacy were breached (para [11]).

After considering all the evidence, the court found that the respondents did not provide
credible evidence about the uniquely harmful effects of dagga. The respondents did not prove
that the criminalisation of cannabis served an important purpose and that there was no way
to achieve this purpose other than to criminalise the use and possession of dagga. Davis J
concluded that:

“The evidence as set out in this judgment supports the argument that the legislative response
to the personal consumption and use (of dagga) is disproportionate to the social problems
caused as a result thereof” [para 102].

The court declared the disputed provisions (sections 4(b) and 5(b) of the Drugs Act read with
Part Ill of Schedule 2 to the Drugs Act; and section 22A(9)(a)(i) of the Medicines Act and
section 22A(10) thereof read with schedule 7 of GN R509 of 2003 published in terms of
section 22A(2) of the Medicines Act) inconsistent with the Constitution of the Republic of
South Africa 108 of 1996 invalid, but only to the extent that the use of cannabis by an adult
in a private dwelling where the possession, purchase or cultivation of cannabis is for personal
consumption by an adult, is prohibited.

The declaration of invalidity was, however, suspended for a period of 24 months to allow
Parliament to correct the defects in the legislation, as envisaged in this judgment. It was
declared further that until Parliament has made the amendments contemplated by the court,
or the period of suspension has expired, it would be deemed to be a defence to a charge
under the relevant provisions that the possession, or cultivation of cannabis in a private
dwelling is for the personal consumption of the adult accused.

4. ACTIVITIES

A few activities are included in this caput which deal with some of the issues raised above.
Since this is a postgraduate module, we do not provide answers to the questions raised in
these activities. You are supposed to consider these questions after having studied the
various topics above and prepare your own arguments and conclusions.

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ACTIVITY 1
The crime of murder is defined as the unlawful and intentional causing of the death of another
human being. A “human being” is regarded in our law as a person who has been born alive.
X is charged of the crime of attempted murder in respect of Y, a pregnant woman whom he
had shot in the stomach. Y survived the attack, but the foetus that she was carrying, died as
a result of the shot wound. During the trial it is argued on behalf of the state that the definition
of the crime of murder should be extended to also include the killing of an unborn child. The
argument is based on constitutional grounds, namely that an unborn child has a right to life
in terms of s 11 which states that “Everyone has a right to life”. In view of the principle of
legality guaranteed in section 35(3)(l) of the Constitution, consider whether the court may
extend the definition of the crime of murder to include the killing of a foetus.

ACTIVITY 2
X is charged with crimen iniuria on the ground that he called Y a traffic officer, a “baboon with
a uniform”. His advocate argues that the definition of the crime of crimen iniuria is too vague
and therefore amounts to a violation of the principle of legality. The advocate also challenges
the definition of the crime on the ground that it is an unjustifiable limitation of the right to
freedom of expression guaranteed in s 16 of the Constitution. Consider these arguments in
view of existing constitutional jurisprudence.

ACTIVITY 3
Consider whether the new crime of “engaging in sexual conduct for financial or other reward”
in section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 may be challenged on constitutional grounds. You must consider the constitutionality
of this provision from the perspective of the prostitute as well as from the person who
engages the services of a prostitute (the client). You must consider the arguments advanced
in the Jordan case in the majority opinion as well as in the minority opinion and discuss the
views of Le Roux. Indicate whether you agree with the views of Le Roux or not.

ACTIVITY 4
X, an outspoken journalist, writes a column in a newspaper, criticising judges of the High
Court of South Africa as “lazy and incompetent fat cats”. X is charged with contempt of court
in the form of “scandalising the court”. You are X’s legal representative. In view of the
judgment in the Mamabolo decision, prepare arguments why, in your view, X cannot be found
guilty of this crime.

ACTIVITY 5
In the Thebus decision the Constitutional Court considered the constitutionality of one aspect
of common-purpose liability namely, through active association with a common purpose in a
fairly large group of persons. Discuss the criticism by Burchell of this decision and indicate
whether you agree with the points that he raises.

ACTIVITY 6
Critically discuss the reasons advanced by the Constitutional Court for its decision in the
Teddy Bear Clinic case. Also discuss the legislation which was subsequently enacted to give
effect to the judgment.

ACTIVITY 7
Discuss the judgment in the Stransham-Ford case and consider whether there is room for
development of the common law to allow for justification for physician assisted suicide (PAS)
in appropriate circumstances.

ACTIVITY 8
Discuss the judgment in Prince v Minister of Justice and Constitutional Development and
Others (Western Cape Division, Cape Town) Case No: 8760/2013 with specific reference to
the reasons provided by the court why the criminalisation of the private use of cannabis is

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 unconstitutional. In your answer you must also refer to counterarguments and evaluate all
the arguments critically.

5. CONCLUSION

We trust that you have found the constitutional jurisprudence relating to criminal law
interesting. You will notice that Burchell discusses various other constitutional issues which
are not discussed above, for example capital punishment. It is not expected of you to know
these other topics for examination purposes. However, you are welcome to read also about
these other constitutional issues which have surfaced in the context of criminal law and
related areas, for example, sentencing. The purpose of the course is for you to develop
analytical skills to evaluate the existing body of criminal law in terms of all the constitutional
imperatives.

Please contact Prof J Le Roux-Bouwer to discuss any difficulty that you may experience with the
above caput.

SECTION III: SPECIFIC CRIMES UNDER INTERNATIONAL CRIMINAL LAW (Primary lecturers: Prof.
N Mollema & Prof. K Naidoo)

1. Content

This section introduces specific crimes which fall within the ambit of international criminal law.
Several current issues from diverse fields of international criminal law research will be examined.
After you have completed this section, you will have knowledge of the following themes within the
ambit of international criminal law:

• the foundations and sources of international law

• international norms as domestic crimes
• the principle of universality
• a capita selecta of specific crimes, which are classified under war crimes, and their material
elements
• crimes against humanity
• genocide
• the prosecution of international crimes
• human trafficking as a domestic and international law crime

At the end of this section, you should have a working knowledge of aspects of the law that relate to
international criminal law and be able to identify and define certain key concepts and apply your
understanding of this legal knowledge. You should be able to formulate legal arguments and to
analyse and evaluate information provided in legal problem-type questions, and consequently be
able to resolve the legal problems or issues pertaining to the basic principles of international criminal
law and be able to substantiate arguments and provide solutions for specific criminal-law issues.

2. Study approach

You must make a proper study of the crimes covered in this caput as well as the relevant provisions
of the Rome Statute. You must have a broad general knowledge and understanding of the selected
specific crimes under international criminal law and must be able to identify and solve legal problem-
type questions using critical and creative thinking.

3. A few remarks on the material you must study

Universal criminal justice dates far back in history but it has only been developed since the 20th
century. This development was aimed at strengthening the position of individuals. International
criminal law protects peace and security in the world and is an instrument to protect human rights.
The following three important milestones have shaped international criminal law:

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1. the Charter of the International Military Tribunal at Nuremberg (Nuremberg Principles)

2. the UN ad hoc tribunals for Rwanda and the former Yugoslavia
3. the Rome Statute of the International Criminal Court (ICC statute)

International criminal law places duties and liabilities on both individuals and states. Crimes under
international law encompass crimes which involve direct individual criminal responsibility. These
core crimes are war crimes, genocide, crimes against humanity and crimes of aggression which are
all subject to the jurisdiction of the International Criminal Court. These crimes all have one common
characteristic, namely the use of force. The sources of international criminal law include the general
principles of international and national law, international treaties, and statutes (e.g., the ICC statute
as its main source), principles of law as interpreted by courts in their previous decisions and
customary international law (general practice which has been accepted as law). Other sources
include, inter alia, the ICTY and ICTR statutes of Yugoslavia and Rwanda respectively, the
Nuremburg Charter, the Geneva Conventions, Hague Regulations, resolutions of the UN General
Assembly and Security Council, decisions of international courts, tribunals and national courts,
national legislation, and international law commission drafts.

International criminal law has been defined by Cassese (International Criminal Law (2008) at 3) as
being a:

Body of international rules designed both to proscribe certain categories of conduct (war
crimes, crimes against humanity, genocide, torture, aggression, and terrorism) and to
make those persons who engage in such conduct criminally liable.

Crimes under international law encompass crimes which occur beyond the borders or jurisdiction of
a single state. International criminal law is the body of law which provides for individual criminal
responsibility and the prosecution of such individuals for the contravention of international laws (for
definitions of international criminal law, see Chapter 46 of Kemp et al Criminal Law in South Africa,
e-book, the link to which has been provided in this tutorial letter).

There are four core crimes, namely:

A. Genocide
B. Crimes against humanity
C. War crimes
D. Crimes of aggression.

The substantive elements of international crimes can be divided into the following elements:

1. There must be a violation of international law whether by breach of international customary

or conventional law which provides that a specific crime is a crime under criminal international
law.

2. There must be a universal interest in preventing these crimes.

3. The purpose of the rules in place which have been violated are to ensure the protection of
values that are deemed important to the international community.

4. There must be a contextual element that distinguishes specific international crimes from other
crimes (See: A Marsavelski “The crime of terrorism and the right of revolution in international
law” (2012 – 2013) 28 Conn. J. Int'l L. 243 at 260 – 262).

South Africa has adopted the principles in the Rome Statute with the Implementation of the Rome
Statute Act 27 of 2002. Liability for crimes under international criminal law is based on the material
elements of the crime such as conduct, consequences and circumstances, a mental element (intent
and knowledge) and grounds for excluding liability. The universality principle allows any state which

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 falls under international law to prosecute a person who commits a crime under international criminal
law regardless of the nationality of such person or the place where the crime was committed.

THE CRIME OF GENOCIDE:

The crime of genocide is defined as meaning any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;(1)
(e) forcibly transferring children of the group to another group. Liability for genocide beyond the
general principles contained in Article 6

It is evident that the crime of genocide consists of five (5) acts in terms of Article 6 of the Rome
Statute (see discussion in Chapter 47 of Kemp et al, Criminal Law in South Africa, e-book, the link
to which has been provided in this tutorial letter).

Killing
members of a
group

Forcibly Serious
transferring bodily or
children to mental harm
th

Imposition of Inflicting
measures to conditions of
prevent births life designed
t bi
There are several groups that are protected in terms of the crime of genocide. These groups include
racial, religious, ethnic, and national groups. The crime of genocide also requires dolus specialis (a
specific intent). This means that the deliberate unlawful killing of members of a group is insufficient
and that an additional (specific) intent to destroy such group whether ‘in whole or in part’ must occur.
See Akayesu case, and Zahar and Sluiter’s views on 155-196 and Chapter 47 of Kemp et al, Criminal
Law in South Africa, e-book, the link to which has been provided in this tutorial letter, for a discussion
of this requirement).

CRIMES AGAINST HUMANITY:

Crimes against humanity include any of the following acts committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the attack: murder;
extermination; enslavement; deportation or forcible transfer of population; imprisonment; torture;
rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other
form of sexual violence of comparable gravity; persecution against an identifiable group on political,

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racial, national, ethnic, cultural, religious or gender grounds; enforced disappearance of persons;
the crime of apartheid; persecution and other inhumane acts of a similar character intentionally
causing great suffering or serious bodily or mental injury. (See Zahar & Sluiter 197–218 and Chapter
47 of Kemp et al, Criminal Law in South Africa, e-book, the link to which has been provided in this
tutorial letter).

WAR CRIMES

There is no universally defined concept of a war crime. Schomburg states that:

Conduct is punishable as a war crime only if there is an armed conflict at the time
when and at the place where the crime is committed and if there is a sufficient nexus
between the crime and the armed conflict

And

This nexus requirement serves to exclude any criminal conduct that is not sufficiently
connected with an armed conflict from the realm of international criminal law. The
armed conflict must play a substantial part in the perpetrator's ability to commit the
crime, his decision to commit it, the manner in which it is committed, or the purpose
for which it is committed (Schomberg at 130).

It is the nexus requirement that is the overriding factor as random instances will not qualify. The
following acts which constitute war crimes can be distinguished:

i. Crimes against persons

ii. Crimes against property
iii. Prohibited means of warfare
iv. Prohibited methods of warfare

(See detailed discussion in Chapter 47 of Kemp et al, Criminal Law in South Africa, e-book, the link
to which has been provided in this tutorial letter).

CRIMES OF AGGRESSION

The crime of aggression is still a developing crime and is distinguishable from other core crimes as
a ‘leadership crime’. It is defined as an “act of commission by persons in a position effectively to
exercise control over or to direct the political or military action of a state.” (See detailed discussion
in Chapter 47 of Kemp et al, Criminal Law in South Africa, e-book, the link to which has been provided
in this tutorial letter).

General

You must be able to discuss the principle of nullum crimen sine lege from an international criminal
law perspective (article 22) as well as the principles of individual criminal responsibility (article 25).
You should also be able to discuss international norms as domestic crimes as well as the principle
of universality (see Zahar & Sluiter 490-503). You must know which acts are criminalised in the
Rome Statute (ICC statute) and when criminal responsibility will be excluded under article 31 of the
ICC statute. Have a look at article 6 in this regard. You must also be able to discuss South Africa’s
implementation of the ICC statute as well as the prosecution of ICC crimes on SA soil (see article:
Du Plessis “Bringing the International Criminal Court home - the implementation of the Rome Statute
of the International Criminal Court Act 2002” 2003 (16) SACJ 1; Du Plessis “South Africa's
Implementation of the ICC Statute: An African Example” 2007 (5) J Int Criminal Justice 460).

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 Specific crimes under international criminal law

You must know what is meant by genocide, crimes against humanity, crimes of aggression and war
crimes, and be able to define and discuss these crimes and their elements in detail (see especially
the ICC Statute and the Elements of Crimes 2002).

You must also be able to explain the forms of genocide and critically discuss genocide as an
international crime with reference to all prescribed case law (see especially Akayesu, and Zahar and
Sluiter’s views on 155-196). You must know what is meant by intent and knowledge as material
elements of genocide. The requirement of mens rea in genocide and war crimes must be analysed.
The concepts of “specific intent” and “genocidal intent” in the crime of genocide must also be
examined. You should also be able to argue whether ethnic cleansing is genocide or not.
Furthermore, you should be able to discuss Zahar and Sluiter’s views on crimes against humanity
and the codification of ethnic cleansing (see 197-218).

You must be able to identify and explain situations where the law of war is applicable (and be able
to explain what is meant by torture as a crime against humanity and as a war crime. Furthermore,
you must be able to explain the requirements for torture. You must be able to identify and explain
what problems are encountered when defining terrorism under international criminal law.

Rape as a crime against humanity, as a war crime and as a form of genocide must be examined and
critically analysed. You must know what is meant by coercion and be able to discuss rape as a
“weapon of war”. It is also important that you must be able to critically compare rape as a crime
under domestic and international law.

Under international criminal law, rape has been prosecuted before tribunals as a form of torture or
enslavement (see Akayesu and Kunarac cases). Lack of consent is not a requirement under the
latter offences. The Gacumbitsi Appeal Judgment (Prosecutor v Gacumbitsi No ICTR-2001-64-A
para 151 (Sept 28, 2004)) dealt with the rape of women by objects, and support was expressed for
the case of Kunarac in that where rape is prosecuted as a war crime or as a crime against humanity,
the presence of coercive circumstances should be focused on as true consent cannot be possible
under such circumstances. It has been argued that the concept of consent is negated in armed
conflict situations due to the coercive circumstances under which rape is committed (see:
Schomburg & Peterson “Genuine Consent to Sexual Violence Under International Criminal Law”
2007 (101) Am. J. Int'l L. 121 at 123, where it is stated that consent could be used as an affirmative
defence). Furthermore, it has been suggested that rape could perhaps be treated in the same light
as torture and enslavement, which are also violations of international criminal law where non-consent
need not be proved (Schomburg & Peterson at 123).

One needs to bear in mind that as far as the issue of consent is concerned in international law and
domestic law, a distinction is usually drawn in international law on the basis that the latter generally
focuses on the interests of a group which means that the consent of one person, or the lack thereof,
cannot be taken to be the consent, or lack thereof, of the group as a whole. The focus of a definition
of rape may therefore be placed on lack of consent or agreement, or coercion, or even both
(MacKinnon at 941).

Human trafficking

Human trafficking is a serious transnational crime. The most important international instrument to
combat this crime is the UN’s Protocol to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children (the Trafficking Protocol), which was introduced on 15 November
2000. The Trafficking Protocol defines human trafficking as:

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the recruitment, transportation, transfer, harbouring or receipt of persons, by means

of the threat or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the giving or
receiving of payments or benefits to achieve the consent of a person having control
over another person, for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of others or other forms of sexual exploitation, forced labour
or services, slavery or practices similar to slavery, servitude or the removal of organs.

It is evident from the definition provided above that human trafficking covers a wide array of offences,
such as slavery, rape, assault, torture, and murder, amongst others. If one examines the definition
as well as the four core crimes of international criminal law, one realises that the relationship between
human trafficking, enslavement and crimes against humanity are overlapping, however the concepts
still do not seem to coincide. This is evident in an analysis of case law of the International Criminal
Tribunal for the Former Yugoslavia and the European Court on Human Rights. See, for example,
the Kunarac case in this regard. One problem is, for example, that enslavement is only a crime
against humanity if it is committed in a widespread or systematic manner by an organization which
displays state-like features.

Human trafficking may in certain circumstances be considered “modern-day slavery” or enslavement

(a crime against humanity) in which case international criminal tribunals and the International
Criminal Court will have jurisdiction. However, human-trafficking offences are most likely to be
prosecuted in the relevant national courts of State Parties to the Trafficking Protocol. South Africa
signed the instrument on 14 December 2000, but only became an official party to it on 20 February
2004. Under the Protocol, the government was obligated to introduce comprehensive legislation to
combat the crime, which was complied with when the Prevention and Combating of Trafficking in
Persons Act 7 of 2013 was signed into law on 29 July 2013. Please see Chapter 49 of Kemp et al,
Criminal Law in South Africa, e-book, the link to which has been provided in this tutorial letter for an
introduction to the concept of human trafficking in international and domestic law. It is important that
you must be able to critically compare human trafficking as a crime under domestic and international
law. You must also be able to distinguish human trafficking from crimes against humanity. In this
regard, the discussions in Zahar & Sluiter 197-218; Chapter 47 of Kemp et al, Criminal Law in South
Africa, e-book, the link to which has been provided in this tutorial letter, on crimes against humanity.
Gallagher and Holmes as well as Mollema provide more information.

4. The content of the topic

NB: This is not a complete list and serves merely as a guideline for your studies. You should NOT
study only these aspects but also all the work prescribed in the textbooks, articles, legislation, and
cases.

Please contact Prof Mollema or Prof Naidoo for any further queries or problems you may have
relating to this section.

13. IN CLOSING
Please contact us by e-mail if you are experiencing problems with the content of this tutorial letter or
with any academic aspect of the module. We would like to wish you an interesting and satisfying
journey through the learning material, and trust that you will complete the module successfully. We
sincerely hope that you enjoy the journey!

PROF K NAIDOO (MODULE LEADER: CMP5904)

PROF J LE ROUX-BOUWER
PROF N MOLLEMA
DR BJ GORDON

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