CRIMINAL LAW

THEORIES AND SOURCES OF PUNISHMENT

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SOURCES OF CRIMINAL LAW

•Legislation- what is a legislation?

•Case Law- What is case law ?

•Common Law- What is common Law?

•The Bill of rights and its relationship with Criminal Law

•What sections in the Bill of rights direct impact on the

Criminal Justice System?

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 THEORIES OF PUNISHMENT

•RETRIBUTIVE THEORY

The punishment is justified because the offender

deserves to be punished: societal equilibrium/ balance:
1.Rebirth of this theory
2.Vengeance
3.Proportionality test
4.Societal Interests
5.Freedom of Will- Culpability requirement
6.Respect for human dignity

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•PREVENTIVE THEORY

The aim here is that punishment must focus on prevention or

deterrent of criminal activities.
It overlaps with reformative theory as they both foster
prevention of crime and is divided in the following:
1.Individual Deterrence – focuses on the offender as an
individual;
2.The general deterrence focuses on the entire community
meaning community members are given a lesson:

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Criticisms of the theory:
1. Utilitarian.
2. No empirical evidence.
3. Culpability requirement not met.
4. Absence of proportionality for the offender.

• REFORMATIVE THEORY

The punishment must focus on reforming the

offender as a person. The focus here is not on the
harm, deterrence but on the person or personality.
Forgiveness is one of the focal point here.

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• COMBINATION THEORY

The courts normally do not reject any of the theories

Or prefer one over the other, however, the apply what
has been termed combination theory.

The courts emphasise the three main considerations

to be taken into account:

1. The Crime.
2. Interests of the community.
3. The Criminal/ personal circumstance of the
offender. See S V Zinn 1969 (2) SA (A) 540 – S V
Rabbie1975 (4) SA 855.
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