In South Africa, criminal law has not yet been codified under a single piece of legislation. Instead, it forms part of legal system called common law – which is the system of law that has been used to determine the outcomes of cases and case law. Therefore, common law crimes in South Africa cannot be found in an act, but instead it is up to the judiciary to identify the elements of the crime using previous case law to determine whether or not a crime was committed – this forms the basis of what is called judicial precedent.
However it should be noted that no crime can be in conflict with the Bill of Rights as set out in The Constitution of the Republic of South Africa and all legal proceedings leading up to the arrest, court appearance and sentencing of the accused should fall in line with The Criminal Procedure Act of 1977. There have been calls for criminal law to move away from common law and instead adopt a legislative approach in order to make the definition of various crimes more tangible. A good example of this is Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 which now more clearly defined the common law crime of rape.
Now that we know how define common law, what are some of the crimes that fall under it? Let’s look at a few examples below:
- This is the intentional and unlawful application of force to another person, or according to SAPS “Inspiring a belief in another person that force is immediately to be applied to him or her”.
Contempt of Court
- This is when someone unlawfully and intentionally disrupts the process of the courts or ignores an order of the court. It can also include interfering with the ability of court officials to do their job, thus interfering with the administration of justice.
- Unlike the crime of murder, culpable homicide is the unlawful and negligent killing of another person.
Housebreaking with Intent to Commit a Crime
- This crime occurs when someone intentionally and unlawfully breaks into a building knowing that they are about to commit a crime within.
Although these are just a few examples of common law crimes in South Africa, it is surprising to see how many crimes are in fact not yet defined by legislation. Should you find yourself in need of legal advice regarding a common law crime why not let us put you in touch with the right lawyer for you? Simply send us a query and we refer you to a legal expert that meets your needs.
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