lOMoARcPSD|527 054 0
CRW 1501 Notes 2021
- Summary of Study
Guide and Answers to
previous question
papers
Introduction to Criminal Law (University of South Africa)
, lOMoARcPSD|527 054 0
CRW 1501 EXAM SUMMARY 2021
EXPLAIN THE MEANING OF THE TERM “COMMON LAW”.
The term "the common law of South Africa" refers to those rules of law not contained in
an Act of Parliament or in legislation by some other (subordinate) legislative body.
The common law of South Africa is Roman-Dutch law. By Roman-Dutch law we mean that
system or law which originated about 2 500 years ago in Rome, spread during and after the
Middle Ages to Western Europe, was received from the late thirteenth up to the end of the
sixteenth century in the Netherlands, applied after 1652 at the Cape by the officials of the
Dutch East India Company, and which was later accepted and applied in all those colonies
and regions of Southern Africa which formed the Union of South Africa in 1910.
After the annexation of the Cape by England, English law exerted a considerable influence on
our common law. Roman-Dutch criminal law was also considerably influenced by English
criminal law. Our common law was further amended and supplemented by legislation.
FOUR ELEMENTS OF CRIMINAL LIABILITY
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. For the purposes of criminal law, conduct can lead to liability only if it is a voluntary,
human act or omission to act.
COMPLIANCE WITH THE DEFINITIONAL ELEMENTS OF THE CRIME: the next requirement for
criminal liability is that X's conduct must comply with the definitional elements of the crime
in question. It is the concise definition of the type of conduct and the circumstances in which
that conduct must take place in order to constitute an offence. To put it differently, it must
be conduct which fulfils the definitional elements, or by which these definitional elements
are realised.
UNLAWFULNESS: "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.
CULPABILITY: the 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".
o The first of these subrequirements: is that of criminal capacity
o Second subrequirement: 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
CRW 1501 Notes 2021
- Summary of Study
Guide and Answers to
previous question
papers
Introduction to Criminal Law (University of South Africa)
, lOMoARcPSD|527 054 0
CRW 1501 EXAM SUMMARY 2021
EXPLAIN THE MEANING OF THE TERM “COMMON LAW”.
The term "the common law of South Africa" refers to those rules of law not contained in
an Act of Parliament or in legislation by some other (subordinate) legislative body.
The common law of South Africa is Roman-Dutch law. By Roman-Dutch law we mean that
system or law which originated about 2 500 years ago in Rome, spread during and after the
Middle Ages to Western Europe, was received from the late thirteenth up to the end of the
sixteenth century in the Netherlands, applied after 1652 at the Cape by the officials of the
Dutch East India Company, and which was later accepted and applied in all those colonies
and regions of Southern Africa which formed the Union of South Africa in 1910.
After the annexation of the Cape by England, English law exerted a considerable influence on
our common law. Roman-Dutch criminal law was also considerably influenced by English
criminal law. Our common law was further amended and supplemented by legislation.
FOUR ELEMENTS OF CRIMINAL LIABILITY
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. For the purposes of criminal law, conduct can lead to liability only if it is a voluntary,
human act or omission to act.
COMPLIANCE WITH THE DEFINITIONAL ELEMENTS OF THE CRIME: the next requirement for
criminal liability is that X's conduct must comply with the definitional elements of the crime
in question. It is the concise definition of the type of conduct and the circumstances in which
that conduct must take place in order to constitute an offence. To put it differently, it must
be conduct which fulfils the definitional elements, or by which these definitional elements
are realised.
UNLAWFULNESS: "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.
CULPABILITY: the 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".
o The first of these subrequirements: is that of criminal capacity
o Second subrequirement: 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
