South African criminal law is a perfect trifecta of common law, case law and legislation, and it is the primary source for defining crimes and prosecuting criminal acts committed in South Africa. It forms part of the public law branch of the South African legal system. Although there are numerous types of crimes, it is important for the understanding of criminal law to determine an overarching definition from which these crimes can stem. Primary legislative sources of criminal law in South Africa include the Constitution of the Republic of South Africa No. 108 of 1996 and the Criminal Procedure Act 51 of 1977, although there are numerous pieces of legislation that influence the development of criminal law in this country, such as acts that deal with specific types of crime.
The most popularly accepted definition of a crime comes from Van der Walt et al in the book “Criminology: an introduction”. Here crime is defined as “conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted”.
In order for a person to be found guilty of a crime under criminal law principles in South Africa, they must be found guilty beyond a reasonable doubt. This means that during a trial the prosecution must provide indisputable proof that a crime took place and was committed by the accused. If any doubt could be created, the accused cannot be found guilty.
Under South African criminal law, we focus heavily on the liability of the accused as well making strong reference to intent as an element of the crime. And as such, to put it simply, there can be no crime where there was no intention to commit a crime - for example, if a person is unaware of the legality of their actions, are they still at fault? Scholars of criminal law in South Africa will often debate this question and it is one that the courts have tried to answer for decades.
Criminal law in South Africa is also heavily aimed at the punishment of the offenders, this makes it lean more toward the concept of retributive theories - in which punishment is doled out as it is seen to be deserved. This does not justify an “eye for an eye” though, and the law must be careful to not lean too far into retribution to the point that it becomes vengeance. Criminal law also serves a utilitarian function within the South African legal system in the sense that its presence acts as a deterrent to criminals while also providing a means for rehabilitation through punishments like community service.
When speaking criminal law in South Africa it is also important to distinguish between what is considered a crime of consequence and a crime of circumstance. For example, should someone be in possession of an illegal item, that is a crime of circumstance, since the circumstances are which cause the illegality. Conversely, a crime of consequence is one that results from an action, such as murder where the consequences of the actions of the accused is the crime.
Because South African criminal law is adversarial in nature, it allows for both sides of the story to be heard in a court of law. Thus the prosecution and the defence are both able to argue the facts and present evidence in order to prove that the facts either do or do not corroborate the charge.
There are many elements to proving criminal liability under criminal law in South Africa, but the three most important to consider are:
- Was the conduct voluntary (actus reus)
- Did the person have criminal capacity (the ability to commit a crime)
- And lastly, were they at fault either through negligence or intention (mens rea)
In general, conduct is the first yardstick in determining criminal liability, because if the conduct was not voluntary there would logically be no capacity or intent to follow. Of course, each individual crime has its own definition of what would constitute unlawful conduct.
It is worth noting that there is such a thing as automatism, where a person may conduct themselves unlawfully but are unaware of their actions, and therefore may not be liable under criminal law in South Africa. Some of these instances include:
There are also mitigating factors to criminal culpability and these factors may influence how harshly the accused is punished or what degree of a crime they may be prosecuted for. Some of these factors include the ability of the accused to comprehend how wrongful their act was, as well as biological factors like a person’s age and mental capacity.
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