Topic 1

Question 1

Define criminal law

Answer 1

Criminal law is the branch of national law that defines certain forms of human conduct as crimes and provides for the punishment of those persons with criminal capacity who unlawfully and with a guilty mind commit a crime.

Question 2

What is branch of law is criminal law?

Answer 2

Criminal law is a substantive public law that deals with the creation, operation and extension of rights and duties between the state and the individuals. This is because the state has an overarching interest in the safety of individuals

Question 3

What is criminal procedure and evidence?

Answer 3

Criminal procedure and evidence is procedural law which regulates the enforcement of substantive law such as criminal law.

Question 4

What is the branch of of law is delict?

Answer 4

Substantive private law that involves two individuals engaged in a legal dispute and want the court to assert their respective rights, such as delict.

Question 5

What law governs a crimainl trial?

Answer 5

If a person is charged in court with having committed a crime, the trial is governed by the
rules of criminal procedure

Question 6

Which parties are involved in a criminal case?

Answer 6

• The state is the complainant
• The victim who the crime was committed against
• The accused

Question 7

Which parties are involved in a delict case?

Answer 7

the individual who lays the complaint, they are the plaintiff
they lay a claim against the defendant

Question 8

What is the prupose of a delict case and a crimainal case?

Answer 8

The purpose of a criminal case is punishment. While in delict compensation the main purpose is compensation

Question 9

What will hapen in a criminal case if the victim refuses to prosecute?

Answer 9

In a criminal case, the state will need to prosecute regardless of the victim’s desire if there is adequate objective evidence to do so, this is a technical general rule. However, in practice, if the victim isn’t willing to cooperate it is unlikely that the case will be successful.

Question 10

What is the burden of proof in criminal law?

Answer 10

The burden of proof in Criminal law is beyond a reasonable doubt, they have to prove all elements of criminal liability.

Question 11

Who is the fine paid to in a criminal case?

Answer 11

If a fine is paid in a criminal case it is paid to the state not the victim, however in delict this is paid to the victim

Question 12

How can the defence show a case is not beyond a reasonable doubt?

Answer 12

If the defence can show that another possibility exists that the version presented isn’t the most probable version then the state hasn’t proven it beyond a reasonable doubt.

Question 13

Can a conduct be both a crime and delict?

Answer 13

A conduct can be both a crime and a delict, this can be seen through assault. When the individual wishes to claim financially for the pain and suffering as well as laying a charge of assault.

Question 14

What is the principle res judicata?

Answer 14

A person cannot be held liable for the same issue twice as stated in the principle of Res judicata, this means that the cause of action against two people has to be different even if it came from the same conduct.

Question 15

Where is res judicata codified?

Answer 15

Res judicata is codified in section 35(3)(m) of the Constitution, a person cannot be held guilty of the same crime twice

Question 16

What is the absolute theory of punishment?

Answer 16

The Absolute theory of punishment is that punishment is the end of justice. Under it is there is the restribution theory

Question 17

What is the retribution theory?

Answer 17

Retribution theory- states that through the offender’s punishment, we restore the legal order. In the retributive theory, the degree of punishment must be in proportion to the degree of harm and an expression of society’s condemnation of the crime

Question 18

What is the relative theory?

Answer 18

The Relative theory of punishment is that punishment has a broader reason for the punishment. Punishment is only a means to a bigger purpose.

Question 19

What theroies are under the relative theory?

Answer 19

Prevention theory, Individual deterrence, General deterrence theory and the reformation/rehabilitation theory

Question 20

What is the reformation/rehabilitation theory?

Answer 20

Reformation/rehabilitation theory- Automatically excludes life sentences and the death penalty. We reform them with the view that they will enter society and not re-offend. This is usually high for juveniles or people with lesser offences, as they are more likely to break bad habits. this could be done through specific programs

Question 21

What is the general deterrence theory?

Answer 21

General deterrence theory- If one person is punished for a crime it can prevent another potential criminal from breaking the crime, the success is on how probable it is that an offender will be caught, convicted and serve out his sentence.

Question 22

What is Individual deterrence theory?

Answer 22

Individual deterrence- to teach the person convicted of a crime a lesson which will deter him from committing crimes in the future. Through punishment, the offender is deterred from committing further crimes. Undermined in SA by reoffence rate which is at 90%

Question 23

What is the prevention theory?

Answer 23

Prevention theory- states are punished to stop the crime from happening again

Question 24

Which punishment thoery is used in SA?

Answer 24

SA legal systems use the combination theory, which applies each theory when dealing with crimes.

Question 25

What are the four key considerations that must be taen into account when umposing a sentence?

Answer 25

Four key considerations must be taken into account when imposing a sentence, the crime, the criminal, the interests of the community and the interests of the victim as seen in Matyityi SA case

Question 26

What are the main two principles of legality?

Answer 26

The principle of legality is in favour of liberty, it states that there would be no crime without law (Nullem crimen sine lege) or no punishment without law (nullem poena sine lege).

Question 27

What is the components Ius acceptum of principles of legality?

Answer 27

Ius acceptum- the accused conduct must be accepted and recognised as a crime by society

Question 28

What is the components Ius paevium of principles of legality?

Answer 28

Ius paevium- the accrued conduct must be prohibited at the time of the commission of the crime

Question 29

What is the components Ius certum of principles of legality?

Answer 29

Ius certum - A crime should be certain and must not be formulated vaguely

Question 30

What is the components Ius strictuim of principles of legality?

Answer 30

Ius strictuim - When a crime is vague it should be narrowly defined to give certain to the principle of favourem libertas (the favour of liberty)

Question 31

What is the components nalla poena of principles of legality?

Answer 31

Nalla poena- When convicted the sentencing should be clear

Question 32

What is the significance of the five components of the principles of legality?

Answer 32

1. Criminal law must be accessible 2. The definition of crimes must be clear and settled 3. Statuary offences should be created in express terms so that it is clear what the statute is trying to criminallies 4. Punishment can only be pursued for crimes created and that existed before the violation of the crime, as seen in section 35(3)(l) of the Constitution

Question 33

Where is the principles of legality codified?

Answer 33

The principles of legality are codified in the rights of arrested, detained and accused persons are set out in s 35 of the Constitution of the Republic of South Africa, 1996.

Question 34

What does section 35(3)(h) of the Constitution state?

Answer 34

S 35(3)(h) of the Constitution is the right to be presumed innocent, to remain silent and not to testify during proceedings is part of the right to a fair trial

Question 35

What was the facts of DPP v Masiya?

Answer 35

In DDP v Masiya, Mr Masiya was charged with raping a small girl anally, however, at the time of this case the common law definition of rape was a male penis into a female vagina unlawful without consent anal rape was charged as indecent assault.

Question 36

What was the outcome of DPP v Masiya as stated in the magistrate court?

Answer 36

The magistrate stated he was charged with rape, therefore extending the definition of rape to include anal rape on females specifically, the reasoning was seen that Mr Masiya knew his act was wrong whether he knew where penetration was.

Question 37

What was the outcome of DPP v Masiya as stated in the CC?

Answer 37

The CC found that the extended version of the common law definition of rape only applied prospectively and as stated in section 35(3)(l) of the Constitution that shows an accused person cannot be charged with an offence if at the time it didn't constitute an offence. Further, at the time Mr Masiya anally penetrated the little girl it wasn't rape but indecent assault and it is only after this case the development applies. The judge stated that to charge Mr Masiya with rape would undermine the principle of legality as seen in section 35(3)(l) and he was charged with indecent assault

Question 38

What was held in Veldman in regards to retrospective crimes?

Answer 38

In Veldman, Nkabinde J concluded that it would be unfair, and indeed unconstitutional, to convict the accused of an offence in circumstances where the conduct in question did not constitute an offence at the time of commission

Question 39

What is the Ius praevium principle?

Answer 39

Ius praevium principle to punishment is that a person can only be found guilty of a crime if the act was recognised as a criminal offence at the time it was committed

Question 40

What was held in section 35(3)(n) in the Constitution?

Answer 40

Section 35(3)(n) of the Constitution provides that the right to a fair trial includes the right 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.

Question 41

What are the two things that need to be met for criminal liability to be met?

Answer 41

- Actus Reus- Conative elements. This deals with the act or conduct - Mens Rea- Cognitive elements. This deals with the mind of the accused

Question 42

What is actus reus elements subdivided into?

Answer 42

- Conduct- Commission positive conduct, an omission or a failure to act or a state of affairs that deals with the - Voluntariness- This needs to be controlled by your own conscious will - Causation- this must be factually linked to the crime - Unjust or unlawfulness - This looks at whether an action is unlawful or not.

Question 43

What are justified defences in Actus reus?

Answer 43

Justified defences: Private defence, Necessity, Consent, Impossibility, Superior orders, Public authority and De minimus non curat lex (the law doesn't deal with trivial matters)

Question 44

What is mens reus elements subdivided into?

Answer 44

- Capacity insight- the ability to appreciate what wrong - Capacity self-control- the persons must be available to act on this appreciation - Fault Intention (dolus eventualis)- this is foresight of a real possibility and reconciled with this eventuality - Negligence (culpa)- When you fall short of a reasonable man standard

Question 45

What can Mens rea elements of capacity be detoured by?

Answer 45

Capacity can be detoured by: - Youth - Insanity - Intoxication - Severe emotional distress such as provocation or circumstances

Question 46

What are the requirements of the actus reus?

Answer 46

- There must be an act or an omission; - Committed by a human or through the agency of an animal [Eustace/Fernandez]; - The act or omission must be unlawful; - It must be voluntary; - There must be a causal link between the conduct and the unlawful consequence.