South African criminal law

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South African criminal law is the body of national law relating to crime in South Africa.
Broadly speaking, it defines as criminal such human conduct as threatens, harms or
endangers the safety and welfare of people. It also sets out the punishment to be imposed on
persons who engage in such conduct, provided they have criminal capacity and act
unlawfully and with a guilty mind.[1] In the definition of Van der Walt et al, a crime is
"conduct which common or statute law prohibits and expressly or impliedly subjects to
punishment remissible by the state alone and which the offender cannot avoid by his own act
once he has been convicted."[2] Crime involves the infliction of harm against society. The
function or object of criminal law is to provide a social mechanism with which to coerce
members of society to abstain from conduct that is harmful to the interests of society.
Criminal law (which is to be distinguished from its civil counterpart) forms part of the public
law of South Africa,[3] as well as of the substantive law (as opposed to the procedural).[4] In
South Africa, as in most adversarial legal systems, the standard of evidence required to
validate a criminal conviction is proof beyond a reasonable doubt. The sources of South
African criminal law are to be found in the common law, in case law and in legislation.

Contents

1 Punishment
o 1.1 Retributive theories
o 1.2 Utilitarian theories
1.2.1 Preventive
1.2.2 Deterrent
1.2.3 Reformative
o 1.3 Combination theories
2 Principle of legality
o 2.1 Legality and the Constitution
3 Criminal liability
o 3.1 Actus reus
3.1.1 Conduct
3.1.1.1 Voluntariness
4 Specific crimes
o 4.1 Damage of property
4.1.1 Arson
4.1.1.1 Elements
4.1.1.2 Requirements
5 See also
6 References
o 6.1 Case law
o 6.2 Journal articles
o 6.3 Legislation
o 6.4 Textbooks

7 Notes

Punishment
The criminal justice system in South Africa is aimed at law enforcement, the prosecution of
offenders and punishment of the convicted. Punishment is the authoritative infliction by the
state of suffering for a criminal offence. There are numerous theories of punishment, whose
two main purposes are
1. to justify the punishment imposed; and
2. to define the type and scope of different punishments.
The three main current theories in South Africa are
1. retributive or absolute, which justify punishment on the grounds that it is deserved;
2. utilitarian or relative, which justify punishment on the grounds that it is socially
beneficial; and
3. combination or unitary, which fuse in various measures the other two.

Retributive theories
Retributive or absolute theories aim to restore the legal balance, upset by the crime. They
generally take proportionality into account and consider the perpetrator's record of previous
wrongdoing. They do not seek to justify punishment with reference to some future benefit
which it may achieve, so it is incorrect to describe retribution as a "purpose of punishment;"
it is rather, according to this theory, the essential characteristic of punishment.[5]

Utilitarian theories
There are three types of utilitarian or relative theory of punishment, the first two of which are
deterrence and prevention. These are connected, in that the former's goal is to prevent
recidivism or repeat offending. The third is reformation.
Preventive
According to the preventive theory of punishment, the purpose of punishment is the
prevention of crime. This theory can overlap with its deterrent and reformative counterparts,
since both deterrence and reformation may be seen merely as methods of preventing crime.
On the other hand, there are other forms of punishment (such as capital punishment and life
imprisonment, and the castration of sexual offenders) which are in line with the preventive
purpose, but which do not necessarily serve also the aims of reformation and deterrence.[6]
Deterrent
There is an important distinction to be made between

individual deterrence, which is aimed at the deterrence of a certain individual from the
commission of further crimes; and

general deterrence, which seeks to deter the entire community from committing
crimes.

Individual deterrence may be said to be aimed primarily at the prevention of recidivism, or

repeat offending, although the rate in South Africa is around ninety per cent,[7] which would
seem to suggest that it is not meeting with success.
Reformative
The third of the utilitarian or relative theories of punishment is the reformative theory, which
is encapsulated by the judgment in S v Shilubane,[8] where the court found "abundant
empirical evidence" (although it cited none) that retributive justice had "failed to stem the
ever-increasing wave of crime" in South Africa.[9] The courts must therefore "seriously
consider" alternative sentences, like community service, as viable alternatives to direct
imprisonment.[10] A reformatory approach would "benefit our society immensely by
excluding the possibility of warped sentences being imposed routinely on people who do not
deserve them."[11]

Combination theories
The most-cited and -generally accepted of the combination theories is that laid out in S v
Zinn,[12] which provided a basic triad of sentencing considerations:
1. the crime;
2. the offender; and
3. the interests of society.[13]
In S v Makwanyane,[14] which eliminated capital punishment in South Africa, Chaskalson P
provided a clearer combination of the other theories of punishment, laying emphasis on
deterrence, prevention and retribution.[15] S v Rabie,[16] meanwhile, held that "punishment
should fit the criminal as well as the crime, be fair to society, and be blended with a measure
of mercy according to the circumstances."[17]
The court in S v Salzwedel[18] held that among the aggravating factors to be considered in
sentencing was racial motivation in the commission of a serious offence, because racism
subverted the fundamental premises of the ethos of human rights which now, after the
negotiated settlement, permeated South Africa's processes of judicial interpretation and
discretion. The court decided that a substantial term of imprisonment, for a murder
committed out of racism, would give expression to the community's legitimate feelings of
outrage. It would also send out a strong message that the courts would not tolerate and would
deal severely with serious crimes perpetrated in consequence of racist and intolerant values
inconsistent with the ethos of the Constitution.
In S v Combrink[19] the court held that, given the public ire with sentences which appear to
favour a particular group in society, the court must exercise judicial sensitivity in cases which
appear to have racial or discriminatory connotations. The public interest against
discrimination is not necessarily in discrimination between black and white, but rather
between people in general who perceive others, with prejudice, to be different or inferior to
them. In order properly to combat hate crimes, decision makers in the criminal justice system

should be attuned to the fact that the effects go far beyond the victims, serving to traumatise
whole communities and damaging South African society.

Principle of legality
According to the principle of legality, "punishment may only be inflicted for contraventions
of a designated crime created by a law that was in force before the contravention."[20] This is
summed up in the dictum nullum crimen sine lege, "no crime without a law." This principle,
"basic to criminal liability in our law," as the court put it in S v Smit,[21][22] is supplemented by
that of nullum crimen sine poena, "no crime without punishment."[23][24] In R v Zinn,[25]
although the court did not make the assumption that, if an enactment is to create a crime, it
should provide either expressly or by reference for a punishment, it was thought "improbable
that if the lawgiver had intended that the Besluit should create a crime, he would not have
taken the precaution of inserting a penaltymore particularly as this is what appears
generally to have been done."[26] The court in R v Carto held that "to render any act criminal
in our law, there must be some punishment affixed to the commission of the act," and that
"where no law exists affixing such punishment there is no crime in law."[27]
Another important principle is nulla poena sine lege, "no punishment without a law." In order
to apply the principle of legality, it is important that the definitions both of common-law and
of statutory crimes be reasonably precise and settled. Penal statutes should be strictly
construed, and the law should be accessible.[28] Finally, there is the dictum nullum crimen,
nulla poena sine praevia lege poenali, "laws and punishments do not operate
retrospectively."

Legality and the Constitution

The South African Constitution is committed to the principle of legality, with, for example,
its provision that "every accused person has a right to a fair trial, which includes the right
1. "not to be convicted for an act or omission that was not an offence under either
national or international law at the time it was committed or omitted; [and]
2. "to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing."[29]
In terms of the ius certum principle, the crime must not, as formulated, be vague or unclear,
so that the subject may understand exactly what is expected of him. Although the
Constitution does not expressly provide that vague or unclear penal provisions may be struck
down, it is "quite possible and even probable," according to Snyman,[30] that the first
provision above will be interpreted in such a way that vaguely defined statutory crimes may
be declared null and void. This "void-for-vagueness" rule may be based either on the right to
a fair trial in general or on the principle that, if a criminal norm in legislation is vague and
uncertain, it cannot be stated that the act or omission in question actually constituted an
offence prior to a court's interpretation of the legislation.
It is also possible to base the operation of the ius certum provision on section 35(3)(a) of the
Constitution, which provides that the right to a fair trial includes the right to be informed of
the charge with sufficient detail to answer it. In S v Lavhengwa[31] it was held that the right

created in section 35(3)(a) implies that the charge itself must be clear and unambiguous. This,
according to the court, would only be the case if the nature of the crime is sufficiently clear
and unambiguous to comply with the constitutional right to be sufficiently informed of the
charge. It was further held that, in order to comply with the requirement of sufficient clarity,
one should bear in mind
1. that absolute clarity is not required, and reasonable clarity is sufficient;[32][33] and
2. that a court, in deciding whether a provision is clear or vague, should approach the
legislation on the basis that it is dealing with reasonable people, not foolish or
capricious ones.[34][35]
It is not only statutory criminal provisions that may, on the ground of vagueness, be declared
null and void in terms of the Constitution, but also provisions of common law that are vague
and uncertain. In S v Friedman[36] it was argued on behalf of the accused that the rule in
regard to the crime of fraud (that the prejudice need be neither actual nor of a patrimonial
nature) was unconstitutional on the ground of vagueness. Although the court rejected the
argument, it is noteworthy that nowhere in its judgment did it call into question the principle
that rules of common law may be declared null and void on the ground of vagueness.

Criminal liability
Probably the most important principle of criminal liability is captured in the dictum actus non
facit reum nisi mens sit rea, or "an act is not unlawful unless there is a guilty mind." To
establish criminal liability, the State must prove, beyond a reasonable doubt, that the accused
has committed

voluntary conduct which is unlawful (actus reus); accompanied by

criminal capacity; and
fault (mens rea).

Actus reus
Burchell lists the elements of unlawful conduct as

conduct;
causation; and
unlawfulness.

For Snyman, it is the following:

1.
2.
3.
4.

conduct;
compliance with the definitional elements;
unlawfulness; and then
capacity and fault, which go together to establish culpability.

Conduct
The conduct must

be carried out by a human being;

be voluntary; and
take the form either of a commission or an omission.

Voluntariness

The element of voluntariness is important in the first place because of the defence of
automatism. As described in A-G for Northern Ireland v Bratty,[37] automatism is any act
which is performed by the muscles without any control of the mind, such as spasm, reflex or
convulsion, or an act by a person who is unconscious because he is asleep. Formerly the
courts would draw a distinction between "sane" and "insane" automatism, although there has
in recent years been a move away from this, because of the confusion it causes, given that the
defence of "insane automatism" is actually nothing more or less than the defence of mental
illness.
Examples of automatism include cases of epilepsy[38][39][40] and intoxication.[41][42]
Another defence is force, which may take the form either of vis absoluta (or absolute force)
or vis compulsiva (or relative force). The case of S v Goliath[43] is important here.

Specific crimes
Damage of property
Arson
A person commits arson if he unlawfully and intentionally sets fire to

immovable property belonging to another; or

his own immovable insured property, in order to claim the value of property from an
insurer.

Elements

The elements of the crime are the following: (a) setting fire to (b) immovable property (c)
unlawfully and (d) intentionally.
Requirements

Arson is only a particular form of the crime of malicious injury to property.[44] The crime can
be committed only in respect of immovable property:[45][46][47] that is, "buildings and other
immovable property."[48] If movable property is set alight, the crime of malicious injury to
property may be committed, provided that the other requirements are met. The crime is
completed only at the moment that the property has been set alight.[49][50] If the arsonist is
caught at a stage before the property has been set alight, he is guilty of attempted arson only,
provided that his conduct has, according to the general rules governing liability for attempt,
proceeded beyond mere acts of preparation.[51]
As in malicious injury to property, one cannot in principle commit arson in respect of one's
own property. The courts, however, including the appellate division, in R v Mavros,[52] have

held that a person commits arson if he sets fire to his own property in order to claim its value
from the insurer.[53] In the estimation of Snyman, "It would have been better to punish this
type of conduct as fraud instead of arson, but the courts will in all probability not depart from
the appeal court's view."[54]
Intention, and more particularly the intention to damage property by setting fire to it, thereby
causing patrimonial harm to somebody, is also required.[55][56][57] Dolus eventualis in this
regard is sufficient.

See also

Crime in South Africa

Law of South Africa
South African criminal procedure