INTRODUCTION

TO SUBSTANTIVE
CRIMINAL LAW
LECTURER: MS HAGGLUND

[email protected]
INTRODUCTION TO
SOUTH AFRICAN LAW
WHAT IS LAW?

• Law is defined as “the system of

rules which a particular country or
community recognizes as
regulating the actions of its
members and which it may enforce
by the imposition of penalties.”
WHAT IS THE FUNCTION OF LAW IN A
SOCIETY?

• The law’s hallmark function is the stipulation of rights and duties.

• The law provides reasons for acting or refraining from acting in

prescribed ways and holds people responsible, to each other and to
society at large, when they fail to comply with such reasons.

• The law is important for a society as it serves as a norm of conduct

for citizens, and it sets out how they will be punished should they
transgress the law.
 WHAT IS THE RULE
OF LAW?
• The Rule of Law is the principle that no person is above the
law.

• Governmental authority is legitimately exercised only in

accordance with written and publicly disclosed laws. These
laws are adopted and enforced in accordance with established
procedural steps that are referred to as due process.

• The principle is intended to be a safeguard against arbitrary

governance, whether by a totalitarian leader or by mob rule.

• Hence, State institutions may only act in accordance with the

powers conferred on them by law. This is known as the
principle of legality which the Constitutional Court of South
Africa regards as an incident of the rule of law.

• The main components of such a system include a clear set of

laws that are freely and easily accessible to all literate persons,
strong enforcement structures, and an independent judiciary.
SOUTH AFRICA’S
CONSTITUTIONAL ORDER
• The 1996 Constitution is the supreme law of the land.

• The Constitutional Court is the highest court in South Africa.

• South Africa is founded on the principles of the rule of law,

constitutionalism, democracy, accountability, separation
of powers, checks and balances, co-operative
government and the devolution of power:

Some of these principles are expressly entrenched in the

text whilst others such as constitutionalism and separation
of powers are implicit in the text.

These principles are justiciable in that any law or conduct

which is inconsistent with them will be declared invalid.

• Chapter 2 of the Constitution contains the Bill of Rights.

 SOUTH AFRICA’S CONSTITUTIONAL ORDER -
SOME INFORMATIVE VIDEOS

• Episode 1: South Africa’s Constitution - https://youtu.be/q7LKSns5TiU

• What is the Separation of Powers? - https://youtu.be/_882Xztbh5Q

• Touring the Constitutional Court of South Africa with Justice Albie Sachs -
https://youtu.be/bSH7ToW1NsM

• Press ctrl and click on link.

 A ‘MIXED LEGAL SYSTEM’
• South Africa has a ‘mixed hybrid legal system’ - a hybrid of Roman-
Dutch civilian law, English common law, customary law and religious
personal law.

• The Roman Dutch civilian law and English common law

influence reflects South Africa's history of successive colonial
governance by the Dutch and English.

• The English common law influence can be seen particularly in

procedural law, with adversarial trials, detailed reporting of cases and
adherence to precedent.

• Customary / indigenous law plays an equally important role in South

Africa's hybrid legal system (ss 211(2) & (3) of the Constitution).

• Religious personal and family laws are also part of the hybrid legal
system (s15(3)(a)(i) and (ii) of the Constitution).
 SOURCES OF SOUTH AFRICAN LAW

• The Constitution - the supreme law of the country (Section 2 of the Constitution)
• Legislation (acts of the national, provincial and local legislatures, and governmental
regulations)
• Common law
• Judicial precedent
• Customary / indigenous law
• Custom
• Religious personal laws
• International law
• The writings of authoritative academics of the law.
 THE CONSTITITUTION OF THE REPUBLIC OF
SOUTH AFRICA, 1996

• Justice Ngcobo has stated that our Constitution contemplates

that there will be a coherent system of law built on the
foundations of the Bill of Rights, in which common law and
indigenous law should be developed and legislation should be
interpreted so as to be consistent with the Bill of Rights and with
our obligations under international law. In this sense, the
Constitution demands a change in the legal norms and values of
our society.
 THE CONSTITITUTION OF THE REPUBLIC OF
SOUTH AFRICA, 1996

• The Constitution is the supreme law of the land and prevails over all other laws.

• It provides the legal foundations and frameworks for the three main components of the South African legal
system: the legislature, executive and judiciary.

• Chapter 2 sets out the Bill of Rights to be promoted, and the limitations clause limits their use when there
are competing rights to consider. What are Human Rights? - https://youtu.be/a3MitlspsGs

• Section 36 is responsible for the limitation of any rights contained in the Bill of Rights. These rights
may only be limited by a law of general application, which is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom.
LEGISLATION
• Legislation is a broad term for written law
found in statutes, proclamations,
regulations and by-laws.

• National legislation made by Parliament

and assented by the President.

• Provincial legislation made by the

legislatures of its nine provinces and
assented to by their respective Premiers.

• Local legislation made by municipal

councils.
COMMON LAW AND
LEGAL PRECEDENT
• The common law is non-enacted law, that
has its roots in Roman-Dutch law.

• Crimes like murder, theft and treason are

part of the common law.

• The common law has been developed

through the decisions of judges in the
Courts, which is referred to as legal
precedent.
LEGAL PRECEDENT / STARE DECISIS

• Stare decisis (“to stand by previous decisions”) is a legal doctrine that obligates
courts to follow historical cases when making a ruling on a similar case. Stare
decisis ensures that cases with similar scenarios and facts are approached in the
same way. Simply put, it binds courts to follow legal precedents set by previous
decisions.

• A precedent becomes the law, unless it is rejected or changed by a higher court. A

precedent is important because it becomes the new law and so will be used in future
judgments.

• It is important to remember that a precedent set by one High Court, is only persuasive
for another High Court.
CUSTOMARY /
INDIGENOUS LAW

• Customary law comes from indigenous cultures

in South Africa and is also often referred to as
indigenous law.

• Customary law has been defined by the

Constitutional Court of South Africa as having
three different forms: law practiced in the
community; law in statutes, case law or textbooks
on official customary law; and academic law that
is used for teaching purposes (Bhe v
Magistrate Khayelitsha [2005] 1 SA 580 (CC)
at [152]).
 CUSTOM

• Sometimes the courts will recognize that a community will do things in a

particular way. The Courts may even enforce these practices or customs.

• For a custom to have the force of law it must show:

• To be long established,
• Certain,
• Reasonable,
• And uniformly observed.
 INTERNATIONAL
LAW
• Customary international law is law in
the Republic unless it is inconsistent
with the Constitution or an Act of
Parliament (S232 of the
Constitution).

• Prefer interpretation consistent with

International Law than not (S233 of
the Constitution) unless
unconstitutional.

• Examples of International Law

include Treaties, Conventions,
Customary International Law.
 THE WRITINGS OF
ACADEMICS OF THE
LAW

• Textbooks and law journals.

• No inherent authority of their

own, but may have
persuasive influence on the
Courts.

• Thus, secondary source of

law.
COURT
SYSTEM IN
SOUTH
AFRICA
SUBSTANTIVE V
PROCEDURAL LAW

• Substantive law essentially

deals with the contents of a
person’s rights, obligations and
remedies in a given factual
situation. Example is criminal
law.

• Procedural law deals with the

enforcement of rights,
obligations and remedies.
Example is criminal procedure.
PRIVATE V PUBLIC
LAW
• Private law regulates the legal relationship
between individuals on an equal footing, i.e. Family
law, Law of Property; Law of Delict.

• Public law regulates the relationship between the

state and the individual (state in a relationship of
power), i.e. Constitutional Law, Criminal Law,
Administrative law.
INTRODUCTION TO
SOUTH AFRICAN
CRIMINAL LAW
 • Criminal law forms part of the public
law of South Africa as well as of
the substantive law.

INTRODUCTION • SOURCES OF CRIMINAL LAW:

TO CRIMINAL
LAW • Common law (unwritten law, based on
principle and precedent)
• Statute (crimes created by legislation);
• Codified law (common law reduced to
writing)
 THE HISTORY OF SOUTH AFRICAN
CRIMINAL LAW

• South African criminal law, which is not codified, stems primarily from Roman-Dutch
law. Canon law, the law of the Roman Catholic Church, also played a significant
role in shaping Roman-Dutch law due to the Church’s influence over matters during
the Holy Roman Empire.

• Roman-Dutch law was brought to South Africa by the Dutch East India Company,
when its representative, Jan van Riebeeck, established a refreshment station at the
Cape of Good Hope in 1652.

• This was later substantially influenced by English common law when Britain
occupied the Cape in 1795. English case authority was used to decide difficult
points of law, which was assisted by the Transkeian Penal Code which was codified
English law in South Africa.
 THE HISTORY OF SOUTH AFRICAN
CRIMINAL LAW

• However, in 1948, when the Nationalist Government came into

power, they wanted to eradicate the influence of English law and
reversed a number of the concepts and presumptions inherited
from English law replacing them with their Roman-Dutch
counterparts and, in particular, German law.

• However, the rules of criminal procedure and evidence remained

largely replicas of English law.
 THE CONSTITUTIONAL
STATE
• The most important development in South African
criminal law has been the adoption of the South
African Constitution in 1996.

• All conduct and all law, whether statute or common

law, needs to be constitutionally compliant.

• In particular, the death penalty was declared

unconstitutional in S v Makwanyane and sodomy
(consensual sexual intercourse between males) was
decriminalised in S v Kampher.
 CHAPTER 9 INSTITUTIONS IN SOUTH
AFRICA

• Chapter 9 of the Constitution creates institutions designed to protect and support

democracy.

• These institutions include the Public Protector; the South African Human Rights
Commission; the Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities; the Commission for Gender Equality; the Auditor-
General; the Electoral Commission and the Independent Authority to Regulate Broadcasting.

• The Public Protector investigates improper behaviour or actions by government

representatives.

• The Auditor-General monitors and reports on government spending. It also receives

complaints from the public.
SOME INFORMATIVE VIDEOS

• What are Chapter 9 Institutions? -

https://youtu.be/6Bm9nbYRtwo

• What is the Role of the Public Protector? -

https://youtu.be/mY_RZc9QWUc

• Press ctrl and click on link.

 THE DEFINITION OF CRIME

• ‘Any conduct defined by law as a crime and for which punishment

is prescribed.’

• 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."
 THE DEFINITION OF CRIME

• Crime is unlawful, blameworthy conduct

punishable by the state.

• Every type of crime has its own very detailed and

precise definition to which the conduct in question
must apply.
 THE FUNCTION OF
CRIMINAL LAW

• The criminalization of conduct in

modern societies arises in
response to four main factors or
pressures:

• The protection of basic human

interests and rights;
• Public morality;
• The promotion of public welfare;
• The need to ensure the
preservation of the State.
 WHAT IS ECONOMIC CRIME?

• Crimes committed with the aim of gaining some economic advantage, usually
by means of some form of dishonesty.

• Also referred to as Financial Crime, White Collar Crime, Corporate Crime.

• What is Financial Crime? - https://youtu.be/KRH58PL0slo

ECONOMIC CRIME

• Common Law Examples:

• Theft;
• Embezzlement;
• Theft by false pretences;
• Fraud;
• Forgery;
• Uttering.
 ECONOMIC CRIME

• Examples of Statutory Offences

• Prevention and Combating of

Corrupt Activities Act 12 of 2004:-

• General crime of corruption;

• Specific forms of corruption

within the public & private
sectors.
ECONOMIC
CRIME

• Examples of Statutory Offences

• Prevention of Organised Crime

Act 121 of 1998 (POCA):-

• Crime of racketeering;
• Participating in
racketeering activity;
• Crime of money
laundering;
 ECONOMIC
CRIME
• Examples of Statutory Offences

• Prevention of Organised
Crime Act 121 of 1998
(POCA):-

• Crime of participating
in criminal gang
activity;
• Asset forfeiture
provisions.
 ECONOMIC
CRIME
• Examples of Statutory Offences

• Companies Act 71 of 2008:

• Breach of
confidence;
• Making of false
statements/
falsification of
records;
• Reckless trading.
 ECONOMIC CRIME

• Each of these economic crimes will be discussed during lectures by Mr Kruger

later on in the course.

• You will need to be able to identify these economic crimes from a case scenario,
know the definition of the crimes as well as the elements that must be proved.

• I will be going through the elements of criminal liability with you first.
 WHAT DO WE MEAN BY CRIMINAL LIABILITY?

(Taken from Snyman, Criminal Law, 7th Ed (2021)

Chapter 1
Requirements for liability:
a) Legality The very first question to be asked in determining somebody’s criminal liability is whether the type of conduct forming the
basis of the charge is recognised in our law as a crime.
b) Act or conduct Once it is clear that the law regards the conduct as a crime, the next step is to enquire whether there was conduct on
the part of X. By “conduct” is meant an act or an omission.
c) Conduct must comply with the definitional elements of the crime in question
d) Unlawfulness The mere fact that X had committed an act and that such act complies with the definitional elements of the crime does
not necessarily mean that it is also unlawful in the sense in which this word is used in criminal law. If X’s conduct corresponds with the
definitional elements, the conduct may be described as “provisionally unlawful”. Before one can finally describe it as unlawful, it must
be clear that there is no justification for the conduct.
e) Culpability Even if the conduct corresponds not only to the definitional elements but is also unlawful, it still does not necessarily
mean that X is criminally liable. There is still one last important requirement which must also be complied with, namely that X’s
conduct must have been culpable. This element is described by the Latin expression mens rea. The culpability requirement means
that there must be grounds upon which X may, in the eyes of the law, personally be blamed for his unlawful conduct. The first of these
sub-requirements is that of criminal capacity. The second sub-requirement (or “leg” of the culpability requirement) is that X’s act must
be either intentional or negligent.
 QUESTIONS?

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