Study Unit 1
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IF YOU WANT TO BE
SOMEBODY,
IF YOU WANT TO GO
SOMEWHERE,
YOU BETTER WAKE
UP AND PAY
ATTENTION! ( Sister Act II)
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General Information:
General Principles of Criminal Law(IURI 211
& IURX 211)
Lectures: ADV R Koraan and Mr T. Viljoen
Contact details on Efundi:
[Link]@[Link];
[Link]@[Link]
Prescribed book: 7th edition Snyman’s
Criminal Law
OUTCOMES
After engaging with the materials and activities in
this study unit you should be able to:
➢ Demonstrate basic knowledge and understanding of the basic
principles of Criminal Law;
➢ Demonstrate knowledge and understanding of the place of Criminal
Law in the South African legal system;
➢ Demonstrate understanding regarding the difference between a
crime and a delict
➢ Demonstrate knowledge and understanding of the sources of the
South African Criminal Law.
➢ Demonstrate knowledge and understanding of the the requirements
for criminal liability.
➢ Demonstrate knowledge and understanding of the theories of
punishment
Structure of the Study Unit
Criminal law and the legal system
Crimes and delict
Sources of criminal law
Criminal Liability
Theories of punishment
Criminal law
Place in Legal System
We will focus on:
Material Law
Formal Law
Crime and a delict
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Place in Legal System
Material Law (substantive legal
rules setting out rights and duties
of the state or subjects)
Formal Law (rules setting out the
procedure or methods by which the
rules of substantive law are
enforced)
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Material Law
Private Law
Public Law
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Private Law
Legal relationship between private
individuals –their property (e.g.,
law of succession)
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Public Law
Legal Relationship –State and Private
individuals
Legal Relationship between States
Criminal Law
human conduct constitutes crimes
and what punishment
(e.g., constitutional law)
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Formal law
Law of evidence
Criminal Procedure
Civil Procedure
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Law of evidence
Rules relating to proving facts in
issue in criminal- and civil cases
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Criminal Procedure
Rules setting out procedures and
methods by which law are enforced
in criminal cases (criminals are
brought before court and tried)
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Civil Procedure
Rules and procedures in civil
cases
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Crimes and delicts
Both can be described as unlawful,
blameworthy acts or omissions.
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Crimes and Delict
Crimes Delict
Public interest Private interest
Public law Private law
State prosecutes Private party institutes action
Imposition of sentence Damages /solatium
State decides Injured party decides
Criminal Procedure Civil Procedure
Possible damages not necessary Damages
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Sources of Criminal law
Legislation
Case Law
Common Law
English Law
The Influence of the Constitution
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GENERAL DESCRIPTION OF
CRIMINAL LIABILTY
A person commits a crime if he engages in conduct which
accords to the definitional elements of the crime in
question, which is unlawful and culpable.
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CRIMINAL LIABILITY:
To determine criminal liability, look
at these aspects and in the
particular order:
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Criminal Liability
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1. Legality
a. Is the conduct forming the basis of the charge
recognised in our law as a crime.
b. General Immoral or dangerous do not necessarily
constitute criminal liability, the conduct needs to be
recognised by our law as a crime.
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2. Act or Conduct
a. Conduct through an act or omission;
b. Mere thoughts are not punishable;
c. Omission only punishable if there is a duty to have
acted;
d. The act / conduct needed to have been voluntary –
acts performed while sleepwalking for example are no
punishable as they are involuntary
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3. Compliance with Definitional
Elements
a. Definitional elements refer to the concise description of
the conduct proscribed by law and the circumstances in
which they should take place to constitute a crime;
b. It is how one differentiates between different crimes;
c. Is a description of the conduct, i.e. “removal”, “injure,”
“sexual intercourse” and also by whom an act should be
performed, i.e. “a license holder,” how it should be performed,
“violently,” where it should be performed, on a “public road”
and so forth.
Robbery for example: the violent removal and appropriation of
moveable, corporeal property belonging to another
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4. Unlawfulness
a. If the act committed complies with 1,2 and 3 above,
criminal liability does not yet follow. Unlawfulness still needs
to be present;
b. Unlawful / Unjustified means, “contrary to law,” yet law
in the bigger scheme of things so as to allow an act which is
contradictory to the letter of the law to be permitted in certain
circumstances because it is justified / the law tolerates such
conduct – the act that otherwise would or could have led to
liability, is excused / accepted as just / justified – if so, liability
will not follow; The provisional conclusion of unlawfulness is
reversed.
c. Private defence, putative private defence, consent,
necessity and official capacity are known grounds for
justification
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5. Culpability
a. The answer to one, two, three and four above is in the
positive, one requirement still needs to be met; i.e. culpability;
b. The perpetrator’s actions need to be culpable - In Latin
referred to as mens rea;
c. The focus shifts away form the act to the actor, the
perpetrator himself, his personal abilities, knowledge or lack
thereof
d. Two elements to culpability:
i. Criminal Capacity
ii Intentional / Negligence
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Culpability
i. Criminal Capacity
At the time of the commission of the act, the perpetrator
should have had certain mental abilities. He should have had
the ability to appreciate the wrongfulness of his act
(distinguish between right and wrong) AND the ability to act in
accordance with such an appreciation. Mentally ill (insane)
persons, for example, lack criminal capacity;
ii Intentional / Negligence The act should be either:
Intentional / Negligent.
If intention is required, the perpetrator should will the
fulfilment of the definitional elements, knowing that his
conduct is unlawful or must foresee the possibility of his
conduct fulfilling the definitional elements and be unlawful,
but nevertheless proceed with the conduct. If he does not
foresee or know, his ignorance or mistake excludes intention
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Culpability Continues
Negligence
Crimes such as culpable homicide requires negligence.
In brief, the actions of the perpetrator does not accord with
the standard of care required by the law in particular
circumstances / the perpetrator fails to act in the way a
reasonable person would act / have acted in the
circumstances.
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Theories of Punishment
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Cayle
??????????
Cayle is a 22 year old man. On 27 February
2023, Cayle pleaded guilty and was
consequently convicted of the theft of one loaf
of bread, 2,5kg sugar and a lighter to the value
of R250. Total amount R325. He has no
previous convictions. He does not have a fixed
address and is in and out of shelters. He also
suffers from a heroin addiction.
Which theory(s) of punishment will be
appropriate in Cayle’s case?
YOUR INITIAL THOUGHTS?????
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Theories of Punishment
a. Absolute Theory – Punishment is the actual objective /
aim within itself - not deterrence / prevention / reform.
b. Relative theory – punishment is a secondary end /
purpose. The main aim of these theories is that punishment
should be aimed at another objective, i.e. deterrence,
prevention etc.
i. Retributive Theory (AS THE ONLY ABSOLUTE)
Punishment is what the offender deserves – he is to pay a
debt to society;
The law protects rights, property, physical integrity etc, i.e.
the advantage - yet the reciprocal obligation to refrain from
interfering with other’s rights;
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Retribution Continues
If everybody refrains from interfering with rights, property etc.
of others, the scales of justice are balanced, yet if a crime is
committed the scales become imbalanced;
Retribution aims to restore the balance, thus the: “restoring of
the legal balance that has been disturbed by the commission
of a crime.”
Retribution is strictly speaking not a theory (of punishment),
punishment is the essential characteristic;
Retribution is not vengeance – It does not entail an eye for an
eye (lex talionis) – same harm inflicted by the offender to be
inflicted upon the offender – it aims to restore the balance;
The degree of punishment to be in proportion to the degree of
harm – the less harm, the less the debt owed to society – the
less the punishment.
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Retribution Continues
EXAMPLE: a lessor sentence for someone driving negligently
with no consequence as opposed to driving negligently and
causing the death of / injury another – there is thus a call for
proportionality;
Retribution explains the necessity of the culpability
requirement – Relative theories do not.
What does this mean?
Retributive - Man has free will, acts accordingly and
can be blamed for his actions – if he is at fault (culpa), he can
be blamed or punished.
Relative theories - see the offender committing the
crime as a result of a personality defect / due to psychological
factors / a disadvantaged environment etc – performing the
act thus not his fault (culpa) but due to external factors.
Relative theories (actually) seek to counteract culpability, i.e.
it is not the offender’s fault.
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Retribution Continues
EXAMPLE: a lessor sentence for someone driving negligently
with no consequence as opposed to driving negligently and
causing the death of / injury another – there is thus a call for
proportionality;
Retribution explains the necessity of the culpability
requirement – Relative theories do not.
What does this mean?
Retributive - Man has free will, acts accordingly and
can be blamed for his actions – if he is at fault (culpa), he can
be blamed or punished.
Relative theories - see the offender committing the
crime as a result of a personality defect / due to psychological
factors / a disadvantaged environment etc. – performing the
act thus not his fault (culpa) but due to external factors.
Relative theories (actually) seem to counteract / deny
culpability, i.e. it is not the offender’s fault. 34
Retribution Continues
Retribution respects human rights – the offender is treated as
a free, responsible human being and held accountable – in
essence there is respect for human dignity – offender not just
an object toward / for another purpose.
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Relative Theories
a. The Preventative Theory;
b. The Deterrent Theory – Individual and
General deterrence; and
c. The Reformative Theory.
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a. The Preventative Theory
Aims to prevent the perpetrator the ability to commit crime
(again);
Examples of pure preventative theory: capital punishment, life
imprisonment, forfeiture of assets, a gun or driver’s licence
for example, life imprisonment;
In its purist form, the aim is to incapacitate any offender to /
from re-offend(ing).
See Criticisms – P 13 Snyman.
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b. The Deterrent Theory
Individual deterrence
The punishment seeks to deter the individual perpetrator not
to re-offend – to teach him a lesson which will deter him from
committing crimes in the future;
Shockingly high rate or recidivism, i.e. offender reoffending
even after punishment presupposed on deterrence,
undermines the success / effectiveness of the theory.
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Deterrent Theory Continues
General Deterrence
The emphasis is on the effect the punishment will have on
society – will the punishment of the individual deter the public
at large not to commit crime;
The imposition of punishment sends a message to society
that crime will not be tolerated, punished and fear thus
instilled in society not to commit crime;
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Deterrent Theory Continues
Misconceptions or Criticisms
The effectiveness of general deterrence is linked to the
severity of the punishment – the more severe the punishment,
the more the deterrence - this may lead to courts handing out
severe punishment even for minor crimes only to deter
effectively;
If punishment is premised upon such, proportionality
becomes an issue – the punishment doesn’t fit the crime, the
(too harsh) a punishment serves another purpose – to deter
(and not to punish) proportionately.
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Misconceptions or Criticisms continues
Can it be empirically proven that punishment (of another) actually
deters? Do (potential) perpetrators exercise the rational thinking of
“there will be punishment” before they continue to act, especially in
crimes committed in the spur of the moment;
The success of the theory (actually) depends on society’s thoughts or
perceptions on whether they, if committing a crime, will actually be
traced, arrested, charged and convicted and (also) punished;
If the view, as seems to be the case in SA, that due to lack of expertise,
inundated court roles, thus over-loaded prosecutorial responsibilities,
the general lack of effectiveness within the prosecutorial sphere, the
above does not seem to be the case – the theory thus not fit for purpose
in SA.
Other criticisms – Culpability as cornerstone for liability cannot be
explained – One could even punish a criminally insane person and this
will still serve to deter – deterrence is the aim, not the punishment as a
result of actual culpability.
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c. The Reformative Theory
The aim is to reform the offender:
The focus is not on the crime, the harm caused or the deterrent effect of punishment,
but on the personality of the offender.
Crime is committed, not due to fault (culpa) of the offender, yet informed by external
reasons i.e. personality defects, psychological factors stemming from an unhappy
background, broken parental home etc, etc…..
Criticism
It does not accord with the principle of culpability as prerequisite to liability – in
essence it denies that there is culpa on the side of the offender – it is NOT his fault;
Punishment may be disproportionate – even a petty thief may be punished with a long-
term sentence especially if time to him being deemed as “reformed” is extensive;
Can older offenders really be reformed – it is often difficult if not impossible to break
old habits and change set ideas;
Experience has taught that reform is an ideal, not a reality. High rates of recidivism
tends to support this conclusion.
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The Combination Theory
Our Courts, at least attempt to, not fucus on or accept or reject any
single theory.” The aim to apply a combination to reach appropriate
punishment;
SCA 2011, Matyityi v S – the judgment of the SCA states that courts
should also consider the interests of the victim when considering the
appropriate punishment;
If one looks at case law on sentencing, it seems as if deterrence has
become the most important objective of punishment – see criticisms of
this theory;
Snyman, and other commentators, are of the view that, especially due to
the pitfalls of the deterrence (and other) theories, that the retributive
theory should be the main theory, with others supporting, upon which
punishment should be premised. See discussions on p 17 and 18 of
Snyman.
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Cayle
??????????
Cayle is a 22 year old man. On 27 February
2023, Cayle pleaded guilty and was
consequently convicted of the theft of one loaf
of bread, 2,5kg sugar and a lighter to the value
of R250. Total amount R325. He has no
previous convictions. He does not have a fixed
address and is in and out of shelters. He also
suffers from a heroin addiction.
Which theory(s) of punishment will be
appropriate in Cayle’s case?
WHAT ARE YOUR THOUGHTS NOW????
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