CRW2601 EXAM PACK

CRW 2601 CWR2601 May/June 2018 Multiple choice questions (1) (4) (2) (3) (3) (2) (4) (3) (5) (3) (6) (5) (7) (3) (8) (1) (9) (5) (10) (1) Section B Question 1 1. (a) Four elements of criminal liability: (i) Act or conduct (ii) Complies with the definitional elements of the crime (iii) Unlawful (iv) Culpable (b) In Director of Public Prosecutions, Western Cape v Prins 2012 9 SACR 183 (SCA), it was contended that no crime is created in the absence of a penalty clause in the particular legislation (prescribed punishment). In other words, the contention was that a person accused of a statutory offence cannot be charged and found guilty of such an offence if there is not also a sentence or punishment prescribed for the offence in the particular legislation. The Supreme Court of Appeal rejected this contention. The court found that there was no support for this contention in the case law. Although the presence or absence of a penalty clause (prescribed punishment) is an important factor in determining whether a crime has, in fact, been created (at par 15), the court was of the view that it is not an essential factor, since it may otherwise be very clear from the particular legislation that a crime was actually created. Apart from focusing upon the language used in the Act, a court must consider, in particular, the objectives of the particular legislation. If it is clear from the objectives of the legislation (expressed in the title and preamble to the Act) and the entire context of the Act that the intention was to create a crime or crimes, then a person may be charged with such (a) crime(s) and be found guilty, even if no penalty is prescribed in the particular Act. The imposition of punishment is then left to the discretion of the court, as has always been the position in the common law. (c) (i) “Ius strictum” literally means “strict law”. Freely translated, it means “a legal provision that is interpreted strictly (i.e. the opposite of ‘widely’)”. (ii) Yes it did. (iii). The Court explained that this meant that the rules of criminal law should be clear and precise, so that an individual may easily behave in a manner that avoids committing crimes. In other words, fairness to the accused required that the extended meaning of the crime of rape not apply to him, but only to those cases that arose after judgment in the matter had been handed down. X could therefore be convicted of indecent assault only, and not of rape. (iv) Ius Praevium, creation of a crime with retrospective effect (i.e. the ex post facto creation of crimes) is at variance with the principle of legality, not legal. (“Praevium” means “previous”. Freely translated, ius praevium means “the law that already exists”.) (v) Masiya case, taking into account the Ius Praevium principle, Constitutional Court ruled that the extended definition of the crime of rape be applied prospectively only. Meaning, because the field of application of the crime was extended only after the accused had performed the prohibited act (i.e. non-consensual penetration of the anus of a female), he could not be convicted of rape, but only of indecent assault.