Summary CRW2601 ALL chapter Notes.

Study Unit 1 (CRW2601) – Introductory Topics 1.5 Criminal Liability 1.5.1 General For a person to be convicted, the following requirements must be satisfied: 1. Their conduct must be recognised in our law as a crime a. Principle of Legality b. Not regarded as an element of a crime 1.5.2 The 4 elements of criminal liability 1. Act or conduct 2. Compliance with the definitional elements of the crime 3. Unlawfulness 4. Culpability Act or Conduct (By conduct we mean and act or omission) Was there conduct on the part of X (the accused)? Usually ‘the requirement of an act”. Conduct can only lead to liability if it is voluntary. X must be capable of subjecting his movements to his will or intellect. Therefore the movements of a sleepwalker are NOT considered to be acts. An omission can only lead to liability if the law imposed a duty on X to act positively and X failed to do so. Compliance with the definitional elements of the crime Definitional elements of the crime means: the concise definition of the type of conduct and the circumstances in which they must take place in order to constitute and offence. E.g. definitional elements of robbery are: “the violent removal and appropriation of movable property corporeal property belonging to another”. X’s conduct must comply with or correspond to the definitional elements. Unlawfulness Just because it complies with the definitional elements does NOT mean it is a crime. E.g. parent hitting child or policeman knocking down a robber are not assault (even if they correspond with the definitional elements of assault). Must be seen in reference to the law in its entirety. Instances when a seeming unlawful act is actually are called grounds of justification (e.g. selfdefence). Culpability There must be grounds on which X can be blamed for his conduct. Shift here from the actual act to the accused’s personal abilities and knowledge (or lack thereof). Culpability requirement comprises 2 questions (sub-requirements): 1. Criminal Capacity a. Ability to appreciate the wrongfulness of his act (distinguish between right and wrong) b. Ability to act in accordance with such appreciation 2. Intent a. X’s act must be intentional or negligent 1.5.3 Sequence of investigation into presence of elements Investigation into the presence of the 4 requirements of criminal liability must be done in a specific order. E.g. was it voluntary? If not, no further investigation needed, and so on in order mentioned above. Remember the boy with the table, chair and stick trying to retrieve the kite. 1.6Hints on answering problem-type qestions 1. Be able to identify the 4 elements and follow the sequence of investigation into the presence of the elements. (this requires knowledge and understanding of the definitions of concepts (e.g. dolus eventualis)) 2. Discuss the legal principles that are relevant. Most of the principles come from case law. Therefore refer to decided cases whenever a principle is stated. (if you don’t know the case name then just say “it has been decided”…) 3. Apply the relevant legal principles to the facts of the problem. 4. Provide a conclusion to the problem. Address the question you have been asked. Study Unit 2 (CRW2601) – The Principle of Legality as entrenched in the Constitution of South Africa 2.2 The Concept of Legality Read case book 3 – 22 First question of criminal liability is whether the act was recognised by the law as a crime. If something is prohibited by law, it MAY NOT be considered a crime. Not every contravention of a legal rule constitutes a crime. Principle of legality also known as: nullum crimen sine lege (no crime without a legal provision) Principle of legality is in section 35(3)(1) of the Constitution. 2.3.2 Rules embodied in the principle 5 rules: 1. Ius acceptum – court can only find someone guilty of a crime, and cannot ‘create a crime’. 2. Ius praevium – court can only find someone guilty if the crime was a legal crime at the time of the commission of the act 3. Ius certum – crimes cannot be formulated vaguely 4. Ius strictum – court must interpret the definition narrowly rather than broadly 5. Nulla poena sene lege (nulla poena) – when someone is found guilty the above 4 rules must be applied in the sentence Judges function is not to create law, but to interpret it. Diagram from pg 15 here. 2.4 Ius Acceptum – conduct must be recognised by the law as a crime RSA criminal law is not codified, therefore it comes mainly from common law. Even though we use common law, it must be clear that the conduct is considered a crime in common or statutory law. If this is not so, the court cannot convict the accused. In RSA ius acceptum refers to common and statutory law. 2.4.1 Common-law crimes There can be no crime where provision has not been made for such a crime/act in common-law. Case law: Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC)  Legislature (not courts) has mandate of law reform  Balance of powers and functions should be recognised and respected