INTRODUCTION

•Welcome to the second module in criminal law. I trust that you will enjoy the study of  this module.

•Unlike the first module (criminal law A) which dealt with the general principals of criminal law, this module deals mainly with the specific crimes.

•We will look into their degree of seriousness, type of punishment imposed for each and the form of culpability required for each.

•The crimes will be discussed in four broad categories namely:

oCrimes against the state and the administration of justice;

oThose against the community;

oThose against a person and

oThose against property.

 

CRIMES AGAINST THE STATE AND THE ADMINISTRATION OF JUSTICE

•High Treason: a person commits high treason if owing allegiance to the republic of South Africa. She/he unlawfully engages in conduct within or outside the Republic with the intension of

a)Overthrowing the government of the Republic;

b)Coercing the government by violence into any action or inaction.

c)Violating, threatening or endangering the existence, independence or security of the Republic; or

d)Changing the constitutional structure of the Republic.

●

a)The perpetrator must owe allegiance to the Republic

Please note:  only persons owing allegiance to the republic can commit high treason. The category of persons owing allegiance is wider than the category of people who are citizens. therefore people who owe allegiance include:

•Citizens of the Republic

•People who have sworn an oath of allegiance to South Africa

•People who are domiciled in South Africa

•People who are resident in South Africa

•

Foreign diplomats who are stationed in South Africa (residing here) obviously do not owe allegiance to South Africa.

b) Conduct/act of high treason

oRole of intention in determining whether there is a treasonable act, the hallmark of high treason is not a certain type of act but the hostile intent with which an act is committed. Any act committed however innocent it may seem can be viewed objectively and may constitute high treason if it constituted with the necessary hostile intent. This may be illustrated as per page311

oCommitting high treason by omission, this refers to every person who owes allegiance to the state and hears or becomes aware of the fact that high treason is being committed or that there is plan to do so, has a duty to report such to the authorities soonest. Failure to do so constitutes high treason.

oActs of treason in time of war and of peace, this is by assisting the enemy by fighting for it against the Republic or against one of its enemies. Furnishing information, committing acts of sabotage etc. Taking part in or instigating an armed revolt or rebellion against the Republic, plotting the overthrow of government, attacking of police station, concealing quantities of weapons in a certain place for a later use by the people wishing to overthrow the government.

Please note: the act of high treason may be committed either within or outside of the territory of the Republic of South Africa.

c) Unlawfulness this element of crime prevents a member of an opposition party, who strives for change of government or of the constitution in a lawful, constitutional way, from committing high treason.

d) Intention the intention which must company the act can be described as the definitive element of high treason. It is known as hostile, therefore X acts with hostile intent if she intends to overthrow the government unlawfully.

A fair interpretation of the relevant authorities is that hostile intent comprises the following, namely an intention (unlawfully) (a) to overthrow the government of the Republic; (b) to coerce the government by violence into any action or inaction; (c) to violate, threaten or endanger the existence, independence or security of the Republic; or (d) to change the constitutional structure of the Republic.

•Treason is the betrayal of the allegiance that a person owes to a country by unlawfully attempting to overthrow or coerce the government of that country. Note that for a crime to be treason, there must be a “hostile” intent against the state, although it may be absent in the cases of public violence and sedition. Hostile intent has been described as intent to treat the state as an enemy, no motive needs to be proved in cases of treason.

•Hostile intent is said to be present when a person should foresee that the consequences of his or her actions might be to overthrow or coerce the State, but proceeds with these actions nevertheless.

sedition

What is Sedition? it is taking part in a concourse of people violently or by threats of violence challenging or defying or resisting the authority of the state of the Republic of South Africa or causing such a concourse. It is crime that is not aimed at the individual but at the authority of the state.

•Elements of the crime: (a) taking part in a concourse of people (b) accompanied by violence or threats (c) challenging the authority of the state (d) unlawfulness (e) intention

The difference between Sedition and other crimes against the State areas follows:

•For high treason there must be a  hostile intent whereas for Sedition only intention to resist or challenge the authority of the State is required.

•Sedition can only be committed by a number (2 or more)of persons acting together unlike treason which can be committed by one person acting alone.

•For Sedition, no allegiance to the Republic is required.

Please note that Sedition differs from public violence in that it is aimed at authority of the State, whereas public violence is aimed at public peace and tranquillity

•State v Twala 1979 3 SA 864 (T)869 F-G

These were 11 members of Soweto Students Representatives Council who were convicted and sentenced to imprisonment.

•S v Zwane (3) 1989 3 SA 253 (w) 261E-F

 

Public violence

Public violence consist in the unlawful and intentional commission by a number of people of an act or acts which assume serious dimensions and which are intended forcibly to disturb public peace and tranquillity or to invade the rights of others.

•Elements: (a) an act (b) by a number of people (c) which assumes serious proportions (d) which is unlawful and (e) intentional/intention to disturb the public peace and order by violent means or to infringe the rights of others.

•Interests protected here are public peace and security

•Public peace and tranquillity must be disturbed by a number of people acting in concert (with a common purpose)

•Please note S17 of the constitution

Examples: violent mob or forcible coercion by strikers of other workers

 

crimes against the administration of justice

CONTEMPT OF COURT

In South African law,  two basic forms of contempt of court are criminalised

1.Contempt of court in facie curiae (that is contempt in the court-literally-in the face of the court)

2.Contempt of court ex facie curiae (conduct outside the courtroom)

The underlying rationale for the crime of contempt is to protect the dignity and institution of courts and the Administration of Justice. If the dignity and structure of courts are not respected, the justice system will not be able to function and in the long run it will collapse.