Introduction to Legal Studies (ILS41Y0)
LEARNING GUIDE
MODULE 11: CRIMINAL JUSTICE
2025
1
, MODULE 11: CRIMINAL JUSTICE
Purpose of this unit: The criminal justice system constitutes a vital part, or legal
subsystem, within the national legal framework that determines the circumstances and
procedures according to which the State may punish people for criminal conduct.
Therefore, criminal justice serves as the foundation of a fair society, ensuring a balance
between individual rights and the enforcement of law and order. This unit delves into
the fundamental principles of criminal justice, the branches of law that define it, the key
role players in the justice system, and the influence of the Constitution of the Republic
of South Africa, 1996 (hereafter “Constitution”).
TABLE OF CONTENTS
1. INTRODUCTION TO CRIMINAL JUSTICE................................................................................. 3
2. INTERDEPENDENCE BETWEEN SUBSTANTIVE AND ADJECTIVE CRIMINAL JUSTICE .... 7
3. PRINCIPLES OF CRIMINAL LAW ............................................................................................. 9
4. CRIMINAL LIABILITY .............................................................................................................. 10
5. DEFINITIONAL ELEMENTS OF SPECIFIC CRIMES ............................................................... 20
6. INTRODUCTION TO CRIMINAL PROCEDURE ....................................................................... 23
7. INTRODUCTION TO LAW OF EVIDENCE ............................................................................... 38
2
,1. INTRODUCTION TO CRIMINAL JUSTICE
WHAT IS CRIMINAL JUSTICE?
The criminal justice system constitutes a vital part, or legal subsystem, within the national legal framework that
determines the circumstances and procedures according to which the State may punish people and legal entities
for criminal conduct.
To understand what criminal justice entails, we must first unpack the concept of criminal conduct, then examine how
such conduct is regulated within society, and finally consider the principles and processes used to determine whether
an individual should be held criminally responsible.
Criminal justice, as a branch of public law, does not exist as a single body of rules but rather as an interconnected legal
subsystem or framework made up of substantive criminal law and the adjective branches of criminal procedure and
the law of evidence. Each of these plays a distinct yet interdependent role: none can function effectively in isolation, as
they are subsidiary and mutually reinforcing parts of the criminal justice system.
It is also important to recognise that criminal justice is part of public law because the government, through the functioning
of state power, plays a central role not only in proscribing criminal conduct through legislation, but also in enforcing
those prohibitions through investigation, prosecution, adjudication, and sentencing. In this vertical relationship, the
State exercises authority over its inhabitants through the coordinated and collaborative functioning of all three branches
of state authority (legislative, executive, judicial).
In this module, we will explore these aspects in order to develop a foundational understanding of the principles underlying
the South African criminal justice system. Let us begin with the foundational legal question: what is crime?
1.1. What is Crime?
Criminal law relates to criminal conduct. Therefore, before conceptualizing ‘criminal law’, we should consider what ‘crime’
or ‘criminal behaviour’ constitutes.
A crime or offence (or criminal offence) is behavior, either by act or omission, defined by statutory or common law
as deserving of punishment because the conduct or its consequences are harmful not only to some individual but
also to a community, society, or the state ("a public wrong").
Based on this definition, the following characteristics are important to note:
1. A crime is foremost about the conduct of a person, whether act or omission, for which he/she is to blame
(responsible);
2. It is conduct that is against the law or illegal (unlawful), as prescribed by statutory or common law, because either
the act itself is forbidden or the act causes a certain forbidden result;
3. It is an infringement of the interests of justice in society (“a public wrong”), which implies that it is harmful not
only to some individual (or individual interest) but also to affected family members of a victim, a community, society,
the administration of justice, public welfare, or the state; and as a result
4. It warrants “punishment”.
At its core, crime refers to conduct that has been proscribed by law and deemed harmful or threatening to individuals,
communities, or society as a whole. Unlike mere moral wrongs, delicts or breaches of etiquette, a crime carries legal
consequences, as it represents behaviour that the State has chosen to regulate through criminal sanction. Understanding
what constitutes crime is therefore the first step in exploring the criminal justice system, since it shapes how laws are made,
how justice is enforced, and how responsibility is determined.
Generally speaking, crime can be understood as a wrong or injury committed against another person, who is regarded
as the victim. In most instances, such criminal conduct infringes upon the interests of the victim and amounts to a
violation of their constitutionally protected human rights. For example, an assault not only harms the physical integrity
of the victim but also violates the constitutional right to freedom and security of the person.
However, crime is harmful not only to victim’s rights and interests but also to the interests of justice in society as a
whole. In this sense, criminal conduct influences / affects everyone's interests (directly or indirectly), i.e., it is "a
public wrong“. For example, shoplifting results in financial losses for the shop owner and may also lead to higher prices,
3
, affecting everyone. In this sense, we say that crime is against the public interest or against the broader interests of
society. Society must be protected against such criminal behavior.
1.1.1. How is a crime distinguished from a delict?
It should be noted that a crime is more than an injury or wrong to another person. If “crime” is defined in such a tersely
manner, there would seem to be no distinction between crimes a delict.
Whilst there are many similarities between crimes and delicts, there are nevertheless also fundamental differences between
the two. Both crimes and delicts may be described as unlawful, blameworthy acts or omissions. Broadly speaking, a delict
is an unlawful, blameworthy act that results in damage to another and entitles the injured party to compensation
from the wrongdoer. Because a delict it is not classified as a crime either by the common law or legislation, the State will
not prosecute the wrongdoer. A delict is ordinarily injurious only to private or individual interests and thus forms part of
private law, particularly the subdivision of the law of obligations. If a person claims damages on the ground of delict, the
trial is governed by the rules of civil procedure.
A crime, on the other hand, is unlawful, blameworthy conduct punishable by the State. The distinguishing features of a
crime can be described as follows: it is conduct which is legally forbidden, which may, in principle, be prosecuted only
by the State, and which always results in the imposition of punishment. A crime is almost invariably injurious to the
public interest, by which is meant, the interests of the State or the community. If a person is charged in a court with having
committed a crime, the trial is governed by the rules of criminal procedure.
Some delicts are also deemed to be crimes and in such cases the wrongdoer may be sued for compensation in civil court
by an injured person, and the State may also prosecute him for a crime in criminal court. For example, if X assaults Y, Y can
claim damages from X on the grounds of delict. He can also lodge a complaint with the police against X on the grounds of
assault, which may lead to X’s conviction and punishment for the crime of assault. This, however, does not mean that all
delicts also constitute crimes.
The most important points of difference between a crime and a delict can be summarised as follows:
Crimes Delicts
Infringes public interests (public wrong) Infringes only private interests
Form part of public law Form part of private law
State institutes prosecution Private party institutes action
Result in the guilty party being ordered to pay damages
Result in the imposition of punishment by the State
to the injured party
Decision to prosecute or not, is made by the NPA
Decision to institute a claim for damages or not is
(National Prosecuting Authority), regardless of the desires
made by the injured party.
of the victim.
Trial governed by rules of criminal procedure Trial governed by rules of civil procedure
Standard of proof is heavier, viz. beyond a reasonable Standard of proof is lighter, viz. a balance of
doubt probabilities
1.1.2. Differences between criminal cases and civil cases
In the table below, we consider some of the most important differences between civil cases (i.e. disputes between legal
subjects in the context of private law) and criminal cases (i.e. disputes between the State and a natural person/s):
Civil case Criminal case
Example of this type of case: Divorce or motor vehicle accident Theft or rape
Example of the name of the
Zwane v Potts S v Makwanyane
case/reference:
4
LEARNING GUIDE
MODULE 11: CRIMINAL JUSTICE
2025
1
, MODULE 11: CRIMINAL JUSTICE
Purpose of this unit: The criminal justice system constitutes a vital part, or legal
subsystem, within the national legal framework that determines the circumstances and
procedures according to which the State may punish people for criminal conduct.
Therefore, criminal justice serves as the foundation of a fair society, ensuring a balance
between individual rights and the enforcement of law and order. This unit delves into
the fundamental principles of criminal justice, the branches of law that define it, the key
role players in the justice system, and the influence of the Constitution of the Republic
of South Africa, 1996 (hereafter “Constitution”).
TABLE OF CONTENTS
1. INTRODUCTION TO CRIMINAL JUSTICE................................................................................. 3
2. INTERDEPENDENCE BETWEEN SUBSTANTIVE AND ADJECTIVE CRIMINAL JUSTICE .... 7
3. PRINCIPLES OF CRIMINAL LAW ............................................................................................. 9
4. CRIMINAL LIABILITY .............................................................................................................. 10
5. DEFINITIONAL ELEMENTS OF SPECIFIC CRIMES ............................................................... 20
6. INTRODUCTION TO CRIMINAL PROCEDURE ....................................................................... 23
7. INTRODUCTION TO LAW OF EVIDENCE ............................................................................... 38
2
,1. INTRODUCTION TO CRIMINAL JUSTICE
WHAT IS CRIMINAL JUSTICE?
The criminal justice system constitutes a vital part, or legal subsystem, within the national legal framework that
determines the circumstances and procedures according to which the State may punish people and legal entities
for criminal conduct.
To understand what criminal justice entails, we must first unpack the concept of criminal conduct, then examine how
such conduct is regulated within society, and finally consider the principles and processes used to determine whether
an individual should be held criminally responsible.
Criminal justice, as a branch of public law, does not exist as a single body of rules but rather as an interconnected legal
subsystem or framework made up of substantive criminal law and the adjective branches of criminal procedure and
the law of evidence. Each of these plays a distinct yet interdependent role: none can function effectively in isolation, as
they are subsidiary and mutually reinforcing parts of the criminal justice system.
It is also important to recognise that criminal justice is part of public law because the government, through the functioning
of state power, plays a central role not only in proscribing criminal conduct through legislation, but also in enforcing
those prohibitions through investigation, prosecution, adjudication, and sentencing. In this vertical relationship, the
State exercises authority over its inhabitants through the coordinated and collaborative functioning of all three branches
of state authority (legislative, executive, judicial).
In this module, we will explore these aspects in order to develop a foundational understanding of the principles underlying
the South African criminal justice system. Let us begin with the foundational legal question: what is crime?
1.1. What is Crime?
Criminal law relates to criminal conduct. Therefore, before conceptualizing ‘criminal law’, we should consider what ‘crime’
or ‘criminal behaviour’ constitutes.
A crime or offence (or criminal offence) is behavior, either by act or omission, defined by statutory or common law
as deserving of punishment because the conduct or its consequences are harmful not only to some individual but
also to a community, society, or the state ("a public wrong").
Based on this definition, the following characteristics are important to note:
1. A crime is foremost about the conduct of a person, whether act or omission, for which he/she is to blame
(responsible);
2. It is conduct that is against the law or illegal (unlawful), as prescribed by statutory or common law, because either
the act itself is forbidden or the act causes a certain forbidden result;
3. It is an infringement of the interests of justice in society (“a public wrong”), which implies that it is harmful not
only to some individual (or individual interest) but also to affected family members of a victim, a community, society,
the administration of justice, public welfare, or the state; and as a result
4. It warrants “punishment”.
At its core, crime refers to conduct that has been proscribed by law and deemed harmful or threatening to individuals,
communities, or society as a whole. Unlike mere moral wrongs, delicts or breaches of etiquette, a crime carries legal
consequences, as it represents behaviour that the State has chosen to regulate through criminal sanction. Understanding
what constitutes crime is therefore the first step in exploring the criminal justice system, since it shapes how laws are made,
how justice is enforced, and how responsibility is determined.
Generally speaking, crime can be understood as a wrong or injury committed against another person, who is regarded
as the victim. In most instances, such criminal conduct infringes upon the interests of the victim and amounts to a
violation of their constitutionally protected human rights. For example, an assault not only harms the physical integrity
of the victim but also violates the constitutional right to freedom and security of the person.
However, crime is harmful not only to victim’s rights and interests but also to the interests of justice in society as a
whole. In this sense, criminal conduct influences / affects everyone's interests (directly or indirectly), i.e., it is "a
public wrong“. For example, shoplifting results in financial losses for the shop owner and may also lead to higher prices,
3
, affecting everyone. In this sense, we say that crime is against the public interest or against the broader interests of
society. Society must be protected against such criminal behavior.
1.1.1. How is a crime distinguished from a delict?
It should be noted that a crime is more than an injury or wrong to another person. If “crime” is defined in such a tersely
manner, there would seem to be no distinction between crimes a delict.
Whilst there are many similarities between crimes and delicts, there are nevertheless also fundamental differences between
the two. Both crimes and delicts may be described as unlawful, blameworthy acts or omissions. Broadly speaking, a delict
is an unlawful, blameworthy act that results in damage to another and entitles the injured party to compensation
from the wrongdoer. Because a delict it is not classified as a crime either by the common law or legislation, the State will
not prosecute the wrongdoer. A delict is ordinarily injurious only to private or individual interests and thus forms part of
private law, particularly the subdivision of the law of obligations. If a person claims damages on the ground of delict, the
trial is governed by the rules of civil procedure.
A crime, on the other hand, is unlawful, blameworthy conduct punishable by the State. The distinguishing features of a
crime can be described as follows: it is conduct which is legally forbidden, which may, in principle, be prosecuted only
by the State, and which always results in the imposition of punishment. A crime is almost invariably injurious to the
public interest, by which is meant, the interests of the State or the community. If a person is charged in a court with having
committed a crime, the trial is governed by the rules of criminal procedure.
Some delicts are also deemed to be crimes and in such cases the wrongdoer may be sued for compensation in civil court
by an injured person, and the State may also prosecute him for a crime in criminal court. For example, if X assaults Y, Y can
claim damages from X on the grounds of delict. He can also lodge a complaint with the police against X on the grounds of
assault, which may lead to X’s conviction and punishment for the crime of assault. This, however, does not mean that all
delicts also constitute crimes.
The most important points of difference between a crime and a delict can be summarised as follows:
Crimes Delicts
Infringes public interests (public wrong) Infringes only private interests
Form part of public law Form part of private law
State institutes prosecution Private party institutes action
Result in the guilty party being ordered to pay damages
Result in the imposition of punishment by the State
to the injured party
Decision to prosecute or not, is made by the NPA
Decision to institute a claim for damages or not is
(National Prosecuting Authority), regardless of the desires
made by the injured party.
of the victim.
Trial governed by rules of criminal procedure Trial governed by rules of civil procedure
Standard of proof is heavier, viz. beyond a reasonable Standard of proof is lighter, viz. a balance of
doubt probabilities
1.1.2. Differences between criminal cases and civil cases
In the table below, we consider some of the most important differences between civil cases (i.e. disputes between legal
subjects in the context of private law) and criminal cases (i.e. disputes between the State and a natural person/s):
Civil case Criminal case
Example of this type of case: Divorce or motor vehicle accident Theft or rape
Example of the name of the
Zwane v Potts S v Makwanyane
case/reference:
4
