MODULE 1:

INTRODUCTION

(page 3-9 and 29- 36 Snyman)

Criminal law (CL), which falls under Public Law, is the part of law which determines what conduct would be punishable and under what

circumstances and what the punishment should be.

Some background on the history of CL… SA = hybrid system of law Meaning that it has developed from various different legal systems: 1. Classical law of Rome 2. Law of Western Europe 3. Roman Dutch Law

Common law This is the law that comes from the Roman and Roman- Dutch law Eg. murder, rape, culpable homicide, robbery (things that have “always” been crimes)

Legislation Offences created by Acts of law Eg. drunk driving, reckless driving, selling and possession of drugs (things that become crimes through time and are contained in legislation = statutory crimes)

The Constitution of the RSA (Bill of Rights – BoR )

Both CL and criminal procedural law have been influenced by the Constitution Eg. abolishment of corporeal punishment and also of the death penalty

Case Law Judgements of the SA courts

Customary Law Things that have become “law” through usage

the part of law which determines the CONTENT and meaning of the

different legal rules or principles

“WHAT” “You may not steal a

car”

the part of law which regulates the ENFORCEMENT of

substantive law by determining the manner in which cases are handled where a legal rule has

allegedly been violated “HOW”

A car thief will be arrested, have a first appearance for bail,

brought to trail, sentenced and imprisoned or fined

regulates the relationship between 1) the State (in an

authoritative position of power)and its subjects 2)the

different branches of State and 3) different States

the part of Public Law which

determines what conduct would be punishable under

which circumstances and

what the punishment

therefore should be

Criminal Law Criminology Penology

the body of law that relates to crime. It regulates social conduct and proscribes threatening, harming, or otherwise endangering the health, safety, and moral welfare of people. It includes the punishment of people who violate these laws.

the scientific study of the nature, extent, causes, and control of criminal behaviour in both the individual and in society. Criminology is an interdisciplinary field in the behavioural sciences, drawing especially upon the research of sociologists (particularly in the sociology of deviance), psychologists and psychiatrists, social anthropologists as well as on writings in law.

a section of criminology that deals with the philosophy and practice of various societies in their attempts to repress criminal activities, and satisfy public opinion via an appropriate treatment regime for persons convicted of criminal offenses.

(Burchell page 18)

These are only hints for you to follow as guidelines.

You are required to look this up in your Burchell

textbook

Def: “a crime is unlawful guilty conduct of an accountable person which as a consequence constitutes a crime the prohibited result of

which is punishable by the State”

Crimes have certain elements

ALL crimes have these 6 elements (although specific crimes also will have

extra specific elements of their own) 1. Legality 2. Conduct 3. Causation (only for consequence

crimes) 4. Unlawfulness 5. Criminal accountability – capacity 6. Fault

CRIME DELICT

Public Law – directed against the public interest

1 Private Law – directed against private interests

Criminal Law 2 Law of Delict

State prosecutes 3 Private parties institute actions or applications

Results in punishment by the State 4 Results in the liable party being ordered to pay damages to the injured person

State prosecutes perpetrator irrespective of the desires of the private individual

5 The injured party can decide whether he wants to claim damages or not

Trial governed by rules of criminal procedure

6 Trial is governed by rules of civil procedure

Constitutional Court (CC)

Higher Courts: Supreme Court of Appeal (SCA), Provincial and Local Divisions of the High Court

Lower Courts: Regional Courts (Magistrates’ Court) and District Courts

Small Claims Court and “Specialist Courts”

CC = the CC is the highest court regarding constitutional matters Judgements of the CC bind ALL other courts.

SCA = the highest court regarding all matters other than constitutional matters Bound to own judgements, unless incorrect Binds all the subordinate courts in RSA

High Courts Bound by the judgements of the Appellant Division If there is no Appelant Division, they are bound by their own judgements unless they were incorrect A single judge is bound by the decisions of a full bench (2 or more judges) HCourts in one province are NOT bound by the decisions of HCourts in other provinces (persuasive power only)

Lower Courts Bound by the SCA as AS WELL AS the HCourts in their own province Lower court judgements do not serve as precedents

when courts of the same status give contradictory judgements, the case with the most similar facts to the one you are dealing with must then be followed

Go find out what each Court’s jurisdiction is. Geographical and matter

jurisdiction.

The doctrine of precedence depends on judgements and cases being reported and published Case law is reported in law reports (not all cases are reported!) Cases thus have special references to make it easier to find the case once reported

S v Eadie 2002 (3) SA 719 (SCA)

Case name

Year and volume case was reported

Series of law

reports

Page where the case

report starts

Court where case was decided

S v Eadie 2002 (3) SA 719 (SCA)

See handout:

SELF STUDY

Case referencing and summary handout