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Unit 1: Introduction to Criminal Law
Theme 1: Criminal Law & the legal system
Theme 2: Criminal Law & t...
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KYLIE VAN DER MERWE - NOTES
PBL 410 – CRIMINAL LAW
UNIT 1: INTRODUCTION TO CRIMINAL LAW:
STUDY THEME 1: CRIMINAL LAW & THE LEGAL SYSTEM: 4
1. PLACE OF CRIMINAL LAW: 4
2. WHAT IS LAW? 4
3. DISCTINCTION: PRIVATE VS PUBLIC LAW: 5
4. DISTINCTION: MATERIAL CRIMINAL LAW VS FORMAL CRIMINAL LAW: 5
5. DEFINITION: MATERIALL CRIMINAL LAW: 5
6. 5 REQUIREMENTS OF CRIMINAL LIABILITY: 5
STUDY THEME 2: CRIMINAL LAW AND THE LAW OF DELICT: 6
STUDY THEME 3: THE CONCEPTS ‘CRIMINAL LAW’ & ‘CRIME’: 7
STUDY THEME 5: DETERMINISM & INDETERMINISM: 8
STUDY THEME 6: THE PURPOSE & FUNCTION OF CRIMINAL LAW & CRIME: 9
STUDY THEME 7: THE CLASSIFICATION OF CRIMINAL LAW & CRIMES: 9
UNIT 2: GENERAL PRINCIPLES OF CRIMINAL LAW:
STUDY THEME 1: LEGALITY: 10
1. INTRODUCTION TO LEGALITY: 11
2. DEFINITION OF THE PRINCIPLE OF LEGALITY: 12
3. IMPLICATIONS OF THIS DEFINITION: 13
4. NB! RECOGNITION OF THE PRINCIPLE OF LEGALITY IN THE CONSTITUTION: 14
5. IUS ACCEPTUM IS DIVIDED INTO COMMON LAW CRIMES & STATUTORY CRIMES: 15
6. BUILDING BLOCK TEST: 16
7. CASE LAW APPLICATION: 17
8. NULLA POENA SINE LEGE – LEGALITY IN PUNISHMENT: 21
STUDY THEME 2: THE DEED/ ACT: 24
1. PRACTICAL ILLUSTRATION: 25
2. ‘CONDUCT’, ‘ACT’, ‘OMISSION’: 25
3. DEFINITION OF AN ‘ACT’: 25
4. 2 IMPORTANT FUNCTIONS OF AN ACT: 26
5. REQUIREMENTS OF AN ACT: 27
STUDY THEME 3: CAUSATION: 33
1. GENERAL/ SUMMARY OF RULES FOR DETERMINING CAUSATION: 34
2. FACTUAL CAUSATION – CONDITIO SINE QUA NON: 35
3. LEGAL CAUSATION: 36
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, KYLIE VAN DER MERWE - NOTES
4. NB! CASE LAW – CRITERION APPLIED BY COURTS – POLICY CONSIDERATIONS: 40
5. TREATMENT OF CERTAIN CONCRETE SITUATIONS: 44
STUDY THEME 4: UNLAWFULNESS (contra boni mores/ against the convictions of society): 47
1. PRACTICAL ILLUSTRATION: 50
2. GROUNDS OF JUSTIFICATION: 50
I. PRIVATE DEFENCE (SELF-DEFENCE): 51
II. NECESSITY: 56
III. IMPOSSIBILIY: 60
IV. CONSENT 60
V. UNATHORISED ADMINISTRATION/ PRESUMED CONSENT: 62
VI. AUTHORITY/ OFFICIAL CAPACITY: 63
VII. ORDERS/ OBEDIENCE TO ORDERS: 64
VIII. OTHERS: 65
STUDY THEME 5: CAPACITY: 66
1. GENERAL: 68
2. DEFINITION - CAPACITY: 69
3. TWO REQUIREMENTS FOR CAPACITY: 70
4. THREE FUNCTIONS OF PERSON’S MENTAL FACULTIES: S V VAN DER MERWE-CASE: 70
5. WHEN DEALING WITH THE CAPACITY OF CHILDREN - THE CHILD JUSTICE ACT: 71
6. DEFINITION – MENTAL ILLNESS: 72
7. DISORDERS ITO DSM-V (DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS):
73
8. PERSONALITY DISORDERS: 73
9. SECTIONS 77-79 OF THE CRIMINAL PROCEDURE ACT: 77
STUDY THEME 6: FAULT: 84
1. GENERAL: 86
I. STRICT LIABILITY: 86
II. VICARIOUS LIABILITY: 88
III. VERSARI IN RE ILLICITA: 89
2. FORMS OF FAULT: 90
I. INTENTION: 91
II. NEGLIGENCE: 101
3. EXCUSES: 105
I. GENERAL: 105
II. TWO REQUIREMENTS: 106
III. DIFFERENCE BETWEEN MISTAKE OF FACT AND A MISTAKE OF LAW: 106
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, KYLIE VAN DER MERWE - NOTES
IV. MISTAKE OF FACT: 106
V. MISTAKE OF LAW: 114
STUDY THEME 7: MULTIPLE DEDFENCES: 117
1. GENERAL: 118
2. INTOXICATION IN GENERAL: 118
I. VOLUNTARY INTOXICATION: 119
II. INVOLUNTARY INTOXICATION: 123
III. STATUTORY INTOXICATION: 125
3. PROVOCATION: 128
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, KYLIE VAN DER MERWE - NOTES
UNIT 1: INTRODUCTION TO CRIMINAL LAW:
STUDY THEME 1: CRIMINAL LAW & THE LEGAL SYSTEM:
Study Aims: Knowledge and understanding of the place of criminal law vis-à-vis other disciplines in
the legal system.
Lecture Outline: Criminal Law and the Legal System: Snyman 3-9
1) Distinction: Private Law/Public Law
2) Distinction: Material Criminal Law VS Formal Criminal Law VS Criminal Law of Evidence
3) Definition: Material Criminal Law
1. PLACE OF CRIMINAL LAW:
2. WHAT IS LAW?
• Normative definition of law in general:
o A body of rules governing human behaviour, prescribed by society, applied by the
courts, and enforced by the executive.
• De lege lata VS de lege ferenda:
o De lega lata – constitutes the law as it is (e.g., the law on sexual offences).
o De lega ferenda – constitutes the law as it should be, the ideal towards which we
strive.
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, KYLIE VAN DER MERWE - NOTES
3. DISCTINCTION: PRIVATE VS PUBLIC LAW:
PRIVATE LAW: PUBLIC LAW:
✓ Regulates the legal relationship between ✓ Regulates the legal relationship between
private individuals (legal subjects) on a state/public entities on a horizontal
horizontal application. application.
✓ BUT also between state/public entities and
individual (legal subjects) on a vertical
application e.g. criminal law.
4. DISTINCTION: MATERIAL CRIMINAL LAW VS FORMAL CRIMINAL LAW:
MATERIAL CRIMINAL LAW: FORMAL CRIMINAL LAW:
✓ Also known as substantive criminal law. ✓ Also known as criminal law of evidence.
o It prescribes for e.g., what is a crime/
what are the requirements for criminal ✓ Rules setting out the procedure or methods
liability. by which the rules of substantive law are
enforced.
✓ Substantive legal rules setting out the rights
& duties of subjects or of the state.
5. DEFINITION: MATERIALL CRIMINAL LAW:
BURCHELL’S DEFINITION OF MATERIAL CRIMINAL LAW:
✓ That branch of national law that defines certain forms of human conduct as crimes and provides
for the punishment of those persons who unlawfully and with a guilty mind commit a crime.
✓ More in-depth than Snyman’s definition (definition mentioned above).
STUDY THEME 2: CRIMINAL LAW AND THE LAW OF DELICT:
Study Aims: Knowledge and understanding of the similarities and differences between criminal law
and the law of delict.
Lecture Outline: Criminal Law and the Law of Delict: Snyman 3-5
1) Similarities between crimes & delicts
2) Differences between crimes & delicts
a) Formal Differences
b) Material Differences
• Similarities between crimes & delicts: Both crimes & delicts may be described as unlawful,
blameworthy acts/ omissions.
• Delict: Is an unlawful, blameworthy act/ omission resulting in damage to another and in a right
on the part of the injured party to compensation.
o The injured party may, if he so wishes, institute an action for damages against the
offender.
• Crime: Unlawful, blameworthy conduct punishable by the state.
• One and the same act may constitute both a crime and a delict.
o E.g., If X assaults Y, Y can claim damages form X on the grounds of delict. He can also
lodge a complaint with the police against X on the grounds of assault, which may lead
to X’s conviction and punishment for the crime of assault.
• However, this DOES NOT mean that all delicts also constitute crimes.
o 2 examples of conduct constituting a delict but not a crime are the negligent causing
of damage and seduction.
o E.g., high treason, perjury, bigamy and the unlawful possession of drugs, are not
delicts.
• Crime can also lead to delictual liability (but it is dealt with separately and the outcome of a
criminal case does not have an effect on the outcome of a civil case).
MATERIAL DIFFERENCES BETWEEN CRIME & DELICT
CRIME: DELICT:
Infringes community interests. Infringes private interests.
Form part of public law. Form part of private law.
It is the state who prosecutes. Individual himself who institutes an action of
damages.
Result in the imposition of punishment by the Result in the guilty party being ordered to pay
state. damages to the injured party.
The state prosecutes perpetrator irrespective Injured party can choose whether he wishes to
whether the individual wishes to prosecute or claim damages or not.
not.
FORMAL DIFFERENCES BETWEEN CRIME & DELICT
CRIME: DELICT:
Trial governed by rules of criminal procedure. Trial governed by rules of civil procedure.
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