INTRODUCTION

Sources of criminal law:  there are 3 main sources of our criminal law:

•Legislation: an Act, Criminal Procedure Act. Constitution of the Republic of SA Act 108 of 1996

Common Law: this refers to those rules of law not contained in an Act of Parliament or Legislation enacted by some other subordinate legislature, such as a provincial legislature but which are nevertheless binding as any legislation.

The common law of SA is Roman-Dutch Law. Roman-Dutch law is that law which originated 2 500 years ago in Rome.

Case Law: the role of Courts in describing and developing our criminal law is vital. A lower court is in principle bound to follow the construction placed upon a point of law by A higher court.
THEORIES OF PUNISHMENT

•Before we can analyse the rules of criminal law we need to discuss or look into certain topics which we ought to have knowledge of before proceeding.

We will discuss the theories of punishment, that is those theories dealing with the possible answers to the following question: why does society punish people? Now in considering the this question we in fact embark upon an investigation into the whole right of existence of criminal law.

•Having convicted an accused, the court must impose a punishment upon him. However, what is the purpose of or justification for punishing offenders? The different answers, as well as arguments justifying the answers which have been given to this question, are called theories of punishment. But considering the theories of punishment we actually consider the whole purpose of criminal law.

•In other words, determining criminal liability is not an end itself. After X has been convicted of a crime he must be sentenced. A sentence usually infringes upon X’s basic human rights, such as his right to freedom of movement, privacy, dignity. In a society which values human rights, this infringement calls out to be justified.

CLASSIFICATION OF THEORIES

•There are a number of theories of punishment. These theories are classified into the absolute theory, the relative theory, and the combination theory. See diagram on pg 10

•Some of these theories are very old some quite modern.

•When distinguishing between the absolute and relative theories it should be noted that there is only one absolute theory namely the retributive theory, while there are a number of relative theories.

•The relative theories are also known as the purpose theories.

According to the absolute theory, punishment is an end in itself, while according to the relative theories, punishment is only a means to a secondary end or purpose. This secondary purpose differs from one relative theory to another:

 

•The preventative theory sees purpose preventing crime, the deterrent theory sees it as deterring the individual or of society from committing a crime, and the reformative theory sees it as reforming the criminal.

RETRIBUTIVE THEORY

Meaning: retributive theory is the restoring of the legal balance which has been disturbed by the commission of the crime. Punishment is the payment of the account which because of the commission of the crime, X owes society

NB: it says or means there should be a direct proportion between the extent of harm and the extent of punishment imposed.

Two scales of justice become balanced again.

 

•Retribution does not mean vengeance…. By vengeance we mean an “eye for an eye” or a “tooth for a tooth” this is a primitive meaning and modern criminal law writers reject this meaning and  they prefer a more enlightened meaning, namely restoring of the legal balance which has been disturbed by the commission of the crime.

•Equal proportion between degree of punishment and degree of harm: according to the retributive theory the extent of the punishment must be proportionate to the extent of the harm done or the violation of the law.

•The less the harm the less the punishment ought to be, because the debt which the offender owes is then smaller.

PREVENTATIVE THEORY

 

Now lets look to the relative theories of punishment: preventative theory can overlap with both deterrent and reformative theories.

•Before the preventive theory can be applied, there must  be possibility that the offender will again commit the crime. Although this is very hard to assume. Unless the accused has previous convictions indicating that he makes a habit in committing these crimes. The court may sentence him a long term of imprisonment in order to prevent him from committing crimes again.

DETERRENCE THEORIES

 

•Theory of individual deterrence:  the offender as an individual is deterred from the commission of further crime. This is to teach the individual person convicted of a crime a lesson which will deter him from committing crimes in future.

•“Question!” why do we have so many repeat offenders in our prisoners? Could it be that this theory is not effective L

Theory of general deterrence: the emphasis here is on the effect of punishment on society in general. This is to deter the society as a whole from committing crime….. Basically its to send out a message to society that crime will be punished. As a result members of society will fear to transgress the law because they will be punished, this fear will result in their refraining from engaging in criminal conduct.

There is a misconception that the effectiveness of general deterrence depends only upon the severity of the punishment, and this theory is accordingly only effective if a relatively severe punishment is prescribed and imposed.

Because of so many reasons general deterrence is not so effective or rather it is of limited value in SA eg. Police fail to trace offenders because of understaffing, bad training and corruption or prosecutor fails to prove an accused’s guilt in court.

•Criticism against this theory please read on them and they will be discussed on next lecture!!!

vACTIVITY

At this stage you should have a fair idea of the application of the theories of retribution, prevention and deterrence. Let us suppose you are a magistrate. Accused 1, 2, 3 are appearing before you on charges of theft. You find all of them guilty of this crime. You now have to sentence them. The evidence before you is the following: accused 1 has stolen one chicken and has no previous convictions,

Accused 2 also has stolen one chicken but has two previous convictions- one of theft of a radio and the other theft of a watch. Accused 3 has stolen a 4x4 motor vehicle worth about 150 000. the evidence also shows that chicken theft is very prevalent in the district. Apply the theories of retribution, prevention and general deterrence to these facts.

The theory of retribution requires that the extent of the punishment be proportionate to the extent of the damage caused. Because the value of the stolen things are different, it follows that punishment for theft of the motor vehicle should be far more severe than punishment for chicken theft.

However, if only the retributive theory is applied, the same punishment must be imposed on all the chicken thieves -the value of the objects stolen is the same.

The theory of prevention requires that a more severe punishment be imposed on A2 than on A1. Because he (A2) already has two previous convictions for theft, he must be prevented, as far as possible, from continuing to contravene the law.

According to the theory of general deterrence, punishment need not necessarily be proportionate to the damage caused.

The fact that chicken theft is so prevalent in the district is a ground for imposing heavier sentences on A1and A2 for stealing chickens than the sentences that would be imposed if someone were to steal a chicken in an area where such theft is not prevalent.

REFORMATION

 

This theory is referred to as the rehabilitation theory, now according to it the purpose of punishment is to reform the offender as a person that he may become a normal law-abiding member of the community one again.

Here the emphasis is not on the crime, harm caused or the deterrent effect which punishment may have but on the person or the personality of the offender

According to this theory an offender commits a crime because of some personality defect or psychological factors flowing from his background, e.g.  unhappy or broken home, disadvantaged background or bad influences from friends

Criticism on this theory please read on them will be discussed on next lecture!!!

COMBINATION THEORY

 

•Our courts emphasise that three factors must b taken into account when sentencing, namely the crime, the criminal, and the interests of society. By bearing these three key  factors in mind, a court normally applies all the theories set above.

Zinn 1969 (2) SA 537 (A)…. PLEASE READ

There must be a healthy balance between these three factors and concentrate on a specific one only. It is however impossible beforehand to determine a certain combination of factors with specific weight attached to each of these factors, and then to use this as a rigid formula in all cases. Each case is unique and each accused differs from another.

 

CRIMINAL LIABILITY/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.

A court may not convict a person and punish him merely because it is of an opinion that his conduct is immoral or dangerous to society because in general terms the “person deserves” to be punished.

 

A court must certain that X’s alleged conduct( the removing of a minor from her parental home without the consent of her parents in order to marry her- which amounts to a crime of abduction) is recognised by law as a crime. This principle is known a the principle of legality.

 

b) Act or conduct: Assuming that the law regards the conduct as a crime, the first step in enquiring whether X is criminally liable is to enquire whether there was conduct on the part of X. By ``conduct'' is meant an act or an omission. Since the punishment of omissions is more the exception than the rule, this requirement of liability is mostly referred to as the ``requirement of an act''.

The word ``act'' as used in criminal law does not correspond in all respects with the ordinary everyday meaning of this word; more in particular it should not be treated as synonymous with a muscular contraction or bodily movement.

It should rather be treated as a technical term of art which is wide enough in certain circumstances to include an omission to act.

 

For the purposes of criminal law, conduct can lead to liability only if it is voluntary. Conduct is voluntary if X is capable of subjecting his bodily or muscular movements to his will or intellect. For this reason the bodily movements of, for example, a somnambulist[sleepwalker] are not considered by the law to amount to an ``act''.

An omission -that is a failure by X to act positively -can lead to liability only

if the law imposed a duty on X to act positively and X failed to do so.

 

c) Conduct must comply with definitional elements of a crime: x’s conduct must comply or correspond with the definitional elements of a crime in question.

To put it differently it must be conduct which fulfils the definitional elements or by which these definitional elements are realised.

d) Unlawfulness: The mere fact that the act complies with the definitional elements does not necessarily mean that it is also unlawful in the sense in which this word is used in criminal law.

 If a father gives his naughty child a moderate hiding in order to discipline him, or a policeman gets hold of a criminal on the run by knocking him to the ground in a tackle, their respective acts are not unlawful and they will therefore not be guilty of assault, despite the fact that these acts comply with the definitional elements of the crime of assault.

Unlawful'', of course, means ``contrary to law'', but by ``law'' is meant here not merely the rule contained in the definitional elements, but the totality of the rules of law, and this includes rules which in certain circumstances allow a person to commit an act which is contrary to the ``letter'' of legal prohibition or norm.

In practice there are a number of well-known situations where the law tolerates an act which infringes the ``letter'' of the definitional elements. These situations are known as grounds of justification

Well-known grounds of justification are private defence (which includes self-defence), necessity, consent, right of chastisement and official capacity.

 In the examples above the act of the father who gives his son a hiding is justified by the ground of justification known as right of chastisement, while the act of the policeman is justified by the ground of justification known as official capacity

e) Culpability: The following and last requirement which must be complied with is that X's conduct must have been culpable. The culpability requirement means that there must be grounds upon which X may personally be blamed for his conduct.

 Here the focus shifts from the act to the actor, that is, X himself his personal abilities, knowledge, or lack thereof. The culpability requirement comprises two questions or, as it were, ``sub-requirements''

The first of these sub requirements is that of criminal capacity (often abbreviated merely to ``capacity''). This means that at the time of the commission of the act X must have had certain mental abilities. A person cannot legally be blamed for his conduct unless he is endowed with these mental abilities. The mental abilities X must have are:

(1) the ability to appreciate the wrongfulness of his act (i.e. to distinguish between` `right'' and ``wrong'') and

(2) the ability to act in accordance with such an appreciation

Examples of categories of people who lack criminal capacity are the mentally ill(``insane'') persons and young children. The second sub requirement (or ``leg'' of the culpability requirement) is that X's act must be either intentional or negligent. Intention is a requirement for most offences, but there are also offences requiring only negligence. Briefly then, we can say that the four general requirements for a crime are the following:

(1) conduct

(2) which complies with the definitional elements of the crime

(3) and which is unlawful

(4) and culpable

THE PRINCIPLES OF LEGALITY

 

DEFINITION AND CONTENTS OF THE PRINCIPLE

A definition of the principle of legality embodying its most important facets can be formulated as follows:

An accused may

(1) not be convicted of a crime:-

(a) unless the type of conduct with which she is charged has been recognised by the law as a crime

(b) in clear terms

(c) before the conduct took place

(d) without it being necessary to interpret the words in the definition of the crime broadly in order to cover the accused's conduct; and

(2) if convicted, not be sentenced unless the sentence also complies with the four requirements set out above under 1(a) to (d)

Rules embodied in the principle

 

If one analyses the principle of legality, one finds that it in fact embodies five rules. In order to facilitate reference to the different rules, we shall give each of these rules a brief Latin label. These five rules are the following:

(1) A court may find an accused guilty of a crime only if the kind of act performed is recognised by the law as a crime - in other words, a court itself may not create a crime. This is the ius acceptum rule.

(2) A court may find an accused guilty of a crime only if the kind of act performed was recognised as a crime at the time of its commission. This is the ius praevium rule.

(3) Crimes ought not to be formulated vaguely. This is the ius certum rule.

(4) A court must interpret the definition of a crime narrowly rather than broadly. This is the ius strictum rule.

(5) After an accused has been found guilty, the above-mentioned four rules must also be applied when it comes to imposing a sentence; this means that the applicable sentence (regarding both form and extent) must already have been determined in reasonably clear terms by the law at the time of the commission of the crime, that a court must interpret the words defining the punishment narrowly rather than broadly, and that a court is not free to impose any sentence other than the one legally authorised.

This is the nulla poena sinelege rule, which can be further abbreviated to the nulla poena rule.

IUS CERTUM

 

 

The rule described above may be described as the ``ius acceptum rule''. The Latin word ius means ``law'‘ and ``acceptum'' means ``which has been received''. A free translation of ius acceptum would read: ``the law as it has been received up to date''. In South Africa the ius acceptum refers not only to the common law, but also to the existing statutory law.

This principle implies that a court may not find a person guilty of a crime unless the type of conduct he performed is recognised by the law as a crime. In other words a court it self may not create new crimes.

RECOGNITION OF THE PRINCIPLE OF LEGALITY IN THE SA CONSTITUTION

The principle of legality is incorporated in S35(3)(l) and (n) of the constitution of SA, Act 108 of 1996

S35 (3) provides that every accused person has a right to a fair trial, and paragraph l to this subsection provides that this right to a fair trial includes the right not to be convicted for an act or omission that was not an offence at the time it was committed.