CRW2602 EXAM PREP ( Questions With Answers )

CRW2602 EXAM PREP ( Questions With Answers ) Name the three general speed limits and the roads to which they apply in terms of section 59(1) of the National Road Traffic Act 93 of 1996. (6) The three general speed limits and the roads to which they apply in terms of section 59(1) of the National Road Traffic Act 93 of 1996 are: 60km – A public road within an urban area. 100km – A public road outside an urban area. 120km – a freeway. (b) Read the following scenario and answer the questions below: Pot People for Peace, a group of cannabis smokers, is very upset that the movement towards the decriminalisation of the possession of cannabis is taking too long. They decide to march to the office of the Minister of Justice and Constitutional Development to hand over a petition from cannabis smokers all over South Africa complaining about this lack of transformation and the manner in which smokers have been treated since the Western Cape High Court ruling that any law disallowing the use and cultivation of cannabis by an adult in a private dwelling was unconstitutional and therefore invalid. They do not have permission to march, but decide to continue nevertheless. The police request them to disperse in a peaceful manner but they refuse. Some of the protesters throw stones at the police and some try to enter the office of the Minister by breaking down the door. The police throw teargas at them and the protestors run away. The police succeed in arresting five of the protesters. (i) Can these five people be convicted of any crime? Discuss. (8) The five protesters can be found guilty of public violence. Public violence is the unlawful and intentional performance of an act or acts by a number of persons which assumes serious proportions and is intended to disturb the public peace and order by violent means, or to infringe the rights of another. The public peace and order is disturbed by means of joint resistance to police action by a group of persons who are acting unlawfully and intentionally with common purpose. The act is accompanied by violence (throwing of stones and breaking down the door). Students also received bonus marks for mentioning that the placing of stones in itself is not public violence (Mei case), or the Salie- or Cele cases. The protesters are also guilty of the crime of malicious injury to property. The property must be corporeal and either movable or immovable. They have unlawfully and intentionally damaged property belonging to other persons by breaking down the door. (ii) When the police search the property of the five arrested Pot People for Peace protesters, they find 100kg of an extremely high quality cannabis and 10kg of cocaine in their garages. The police also find a field full of cannabis ready for harvesting in a nearby uninhabited wood. One of the protestors claim that they only grew cannabis for private use and sold the cocaine to solve their financial troubles. Can these five people be convicted of any crime in these circumstances? (5) The five protesters may be charged under the Drugs and Drug Trafficking Act 140 of 1992 with the use or possession of drugs. It is an offence for any person unlawfully and intentionally to use or have in their possession any dependence-producing substance or any dangerous dependenceproducing substance or any undesirable dependence-producing substance (section 4 of the Act). As decided in the case of Prince v Minister of Justice and Constitutional Development and Others, and subsequent Constitutional Court case, the use of cannabis by an adult in a private dwelling where the possession, purchase or cultivation of cannabis is for personal consumption by an adult is not unlawful. However, in the scenario provided, 100kg of cannabis is too much for private use. The field of cannabis in a nearby uninhabited wood is clearly also not considered a private dwelling in terms of the Act. They may also be found guilty of dealing in drugs, as they sold cocaine. (c) Discuss ONE of the following cases: (i) Nkosi 2012 (1) SACR 87 (GNP) Facts: Police were tipped off as to a stock theft on a farm and on arrival discovered two of nine cattle tied to a post. The appellant’s bakkie with a trailer was stuck in the mud 200m away. He was arrested and charged with stock theft and convicted. Legal question: On appeal the question was whether the appellant was guilty of completed stock theft or merely attempted theft. Judgment and reasons for judgment: The conviction was set aside by the court and replaced by the crime of attempted theft. The mere assumption of control over property is insufficient to constitute completed theft. Before a court can find that a completed theft has been committed, it must be shown that the owner was effectively deprived from his property. The cattle were not removed nor could X remove them as his bakkie was stuck in mud and he had not completed the act. In this case the appellant’s acts amounted to acts of execution or consummation and therefore attempted theft was committed. OR (ii) S v Mshumpa 2008 (1) SACR 126 (E) (6) Facts: A young pregnant woman (S) was ‘hijacked’ together with the father of the child (B). She was shot in the stomach and the baby was stillborn. B was shot in the shoulder and valuables were taken. It transpired the father of the child (B) arranged for the incident. B and M (the ‘hijacker’) were both charged with various offences including: attempted murder; assault; robbery; attempting to defeat the course of justice and unlawful possession of firearms. M and B were found guilty of the attempted murder of S. Legal question: Can they (B and M) be charged with murder of an unborn child/ foetus? Judgment and reasons for judgment: One cannot be found guilty of the murder of an unborn child since not included in definition of murder It will violate the principle of legality. If the definition of murder is to be broadened, the legislature must effect such change. Constitution does not afford a right to life to an unborn child. Development of common law (as allowed in the Masiya case) must be done incrementally and cautiously in accordance with dictates of Constitution. Practical difficulties with including killing of unborn child in definition of murder (see para 59 of judgment for the various difficulties and award marks to students who discuss these difficulties). QUESTION 2 (a) Name the elements of the crime of perjury at common law. (6) The elements of the crime of perjury at common law are: (1) the making of a declaration (2) which is false (3) under oath or in a form equivalent to an oath (4) in the course of a legal proceeding (5) in an unlawful and (6) intentional manner (b) NOTE THE CHOICE YOU HAVE IN THIS QUESTION (i) Name six ways in which the crime of defeating or obstructing the course of justice can be committed. Defeating or obstructing the course of justice can be committed in the following ways: • unlawfully inducing (or attempting to induce) a witness to give false evidence in court, • to refuse to give evidence, • to give false information to the police, • to abscond (so as not to be able to give evidence at a trial); • soliciting a complainant by unlawful means to withdraw a charge; • soliciting a prosecutor by unlawful means not to prosecute; • improperly influencing a party to a civil case; • improperly seeking to influence the judiciary by exhorting them not to give any credence to certain types of evidence, contrary to their duties, • unlawfully releasing a prisoner, • laying a false charge against X or, e.g., that your car has been stolen (if there is a possibility of a real court case ensuing). OR (ii) In terms of section 1(2) of the Criminal Law (Sexual Offences and Related Matters Amendment Act 32 of 2007 “consent” means “voluntary and uncoerced agreement”. Set out the circumstances in which such consent is deemed to be absent in terms of the said Act. (6) Circumstances in respect of which Y does not voluntarily or without coercion agree to an act of sexual penetration include, but are not limited to, the following: Where Y submits or is subjected to such a sexual act as a result of (1) the use of force or intimidation by X against Y or Z (a third person) or against the property or a threat of harm or against property (2) where there is an abuse of power or authority by X (3) where the sexual act is committed under false pretences or by fraudulent means (4) where Y is incapable in law of appreciating the nature of the sexual act; including where Y is, at the time of the commission of such sexual act ― (i) asleep; (ii) unconscious; (iii) in an altered state of consciousness, including under the influence of any medicine, drug, alcohol or other substance, to the extent that Y's consciousness or judgment is adversely affected; (iv) a child under the age of 12 years; or (v) a person who is mentally disabled). (c) X makes a telephone call to Y, the owner of a shop, in which he threatens to kill Y the next day if he does not give him money when he (X) arrives at the shop. The next day X arrives at Y’s shop and points a toy gun at Y, claiming the money. Y thinks it is a real gun and hands over the money. Answer the following questions and give reasons for your answers: (i) Can X be convicted of the crime of assault purely on the ground of the threat made over the telephone? (4) No, X cannot be found guilty of assault. Assault may be caused by unlawfully and intentionally applying force directly or indirectly to another person or inspiring a belief that force will be immediately applied. The threat must be one of immediate violence, therefore a threat to cause Y some physical harm in the future (next day) would not qualify as assault in this form (ii) Can X be convicted of the crime of robbery relating to the event that occurred at the shop? (3) Yes, X can be found guilty of robbery. Robbery consists of the theft of property (money) by unlawfully and intentionally using threats of violence (the pointing of a gun – Y believed it to be a real gun). The is a causal connection between violence or threat of violence and acquisition of property. See the case of Ex parte Minister of Justice: In re R v Gesa, R v De Jong. (iii) Can X be convicted of fraud relating to the event at the shop? (3) Yes, X can be convicted of fraud. Fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial. There must be a deception by means of a falsehood. X represented to Y that he was pointing a real gun towards him whereas it was a toy gun which is a misrepresentation which caused actual prejudice (handing over of money). (iv) Can X be convicted of the statutory crime of “pointing of a firearm” in terms of section 120(6) of the Firearms Control Act 60 of 2000. (3) Yes, X can be convicted of pointing of a firearm provided that the toy gun is such that it is likely to lead a person to believe that it is a real gun. The crime consists of the pointing of a firearm or other article at any person or anything that is likely to lead a person to believe it is a firearm unlawfully and intentionally without good reason to do so. (d) Indicate whether the following statements with regard to fraud are correct or incorrect: (5) (i) The misrepresentation can be either express or implied. Correct (ii) The misrepresentation may be made by a positive act only. Incorrect (iii) If X misrepresents to her insurance company that her insured camera was stolen and the company reimburses her for the camera, the company will have suffered actual prejudice if the allegation that the camera had been stolen was false. Correct (iv) Prejudice must have been suffered by the representee only. Incorrect (v) Laying a false charge with, or making a false statement to the police is an example of the causing of non-patrimonial prejudice. Correct QUESTION 3 (a) Briefly discuss whether a person who steals electricity may be convicted of common-law theft. (5) In Mintoor, the court held that electricity cannot be stolen since it is not a particular material but rather a movement of molecules; a form of energy. But in Ndebele, it was held that a person who steals electricity may be convicted of common-law theft. In Ndebele the courts have moved away from the physical handling of the property to a more abstract requirement of appropriation such as the manipulation of credit. There need not be physical removal but rather the deprivation of a characteristic and depriving the owner of a characteristic. Energy by electricity consists of electrons and the characteristic attached to electrons is energy which is consumed and is capable of theft. (b) Define the crime of theft by false pretences. (4) A person commits theft by false pretences if she unlawfully and intentionally obtains movable, corporeal property belonging to another, with the consent of the person from whom she obtains it, such consent being given as a result of a misrepresentation by the person committing the offence, and she appropriates it. (c) Merely state, without any discussion, the legal interest(s) protected by each of the following crimes: (i) Terrorism (2) The crime of terrorisms protects the safety and security of the Republic, its institutions and people. (ii) Defeating or obstructing the course of justice (1) Defeating or obstructing the course of justice protects the course or administration of justice by the courts. (iii) Driving in excess of the speed limit (1) Driving in excess of the speed limit protects the physical safety of the general public. (iv) Kidnapping (2) The crime of kidnapping protects the freedom of movement and against a parent’s or a custodian’s control over a child.