Learning Units 1 & 2 transcription

This lesson is located in the link below:

https://youtu.be/nFAobFR8iOM

Good day Students! Welcome to General Principles of Criminal Law! We trust that you will enjoy your
study of this module. Criminal law is one of the most interesting and topical law subjects to study. Our
aim is to assist you as much as we can in mastering this module. I am Prof Mollema, one of the lecturers
teaching this course. I am assisted by Ms Museka, who you will get to know in further lectures. You
are more than welcome to contact any one of us for assistance if you experience any difficulty with
the module content.

General Principles of Criminal Law

Introductory Principle of Criminal Participation/
Topics Legality Liability Attempt,
Conspiracy,
Learning Learning unit Learning units 3-13 Incitement
unit 1 2 - Act / Omissions
- Theories of - Concept of - Definitional Learning units
punishment legality Elements /Causation 14-16
(Read only) - Principle of - Unlawfulness - Perpetrators
- Criminal legality - Culpability / Common
liability - Ius acceptum Criminal capacity purpose, joiner -
(Summary ) - Ius praevium - Culpability / Intention in
- Ius certum - Culpability / - Accomplices
- Ius strictum Negligence - Accessories
- Intoxication / after the fact
Provocation /
- Attempt,
Disregard of
culpability / Conspiracy,
Corporate bodies Incitement

The material in the study guide is subdivided into 16 learning units. A learning unit is a unit or section
of the syllabus which deals with a certain topic. You can divide the time you have at your disposal
(from the time you enrol until the time you write your examination) into 16 time units and then study
one learning unit per such time unit. In your Tutorial letter 101 under paragraph 7, we have already
given you a specific study plan to follow if you so wish. Please have a look at this study plan. In this
slide, we have provided the entire course contents at a glance. As you will see, there are four parts in
the course: Introductory topics, the principle of legality, criminal liability and participation, attempt,
conspiracy and incitement. Under each part, various topics with crimes listed under them appear in
the different learning units.

LEARNING UNIT 1
INTRODUCTORY TOPICS
SG: 1 - 11

Criminal liability

Act / Conduct Unlawfulness Culpability

Compliance with
the definitional
elements of the
• Act or omission crime
• Contrary to law • Criminal capacity
• Voluntary
• Seen against = the ability to
appreciate
• Sequence NB! totality of the wrongfulness of
rules of law act + to act in
ACT +
• Grounds of accordance with
Compliance with definitional elements + such appreciation
justification
Unlawfulness + • Intention /
Culpability = Negligence
Liability

The discussion that follows is aimed at giving you a very concise summary of the first part of the study
guide. When investigating the various crimes, we find that they all have certain characteristics in
common. The very first question to be asked in determining a person's criminal liability is whether the
type of conduct forming the basis of the charge is recognised in our law as a crime. Most crimes are
well-known, whether they are common-law or statutory crimes, so this question is answered quite
easily. However, before a person can be convicted of any crime, the following four requirements must
be satisfied: did X commit an act or conduct? If we are satisfied that there was an act, we move on to
the next stage – did X's conduct comply with the definitional elements of the crime in question? If this
question is answered in the positive, then the following question is: was X’s act unlawful? Again, if it
is found that X’s conduct was unlawful, the last question is whether X was culpable when he
committed the unlawful act? If the answer here is also “yes”, then only can X be held liable for the
crime. These questions one must ask when determining the criminal liability of X must follow a specific
sequence in which the requirements are set out above (i.e., act, compliance with definitional
elements, unlawfulness and culpability). The moment it becomes clear that any one of the four
elements is missing (that is, has not been complied with), it follows that there is no criminal liability
(for example, if there is no act, then it becomes unnecessary to enquire whether there is compliance
with the definitional elements of the crime OR when the act is unlawful, one does not have to enquire
into the existence of culpability, and so on. As you can see from the Study Guide units above, these
four elements are discussion in detail from learning unit 1 to learning unit 11. As such, we will not
dwell much longer on this learning unit but move on to learning unit 2.
 LEARNING UNIT 2
THE PRINCIPLES OF LEGALITY
SG: 12 - 26

Principles of
legality

Definition /
Rules Punishment
Contents
Constitution
s 35(3)(l) Nulla poena
sine lege
Constitution s
Ius Ius Ius Ius 35(3)(n)
Acceptum Praevium Certum Strictum

Common Statutory
law crimes crimes

In learning unit 2, the principle of legality as entrenched in the Constitution of the Republic of South
Africa, 1996 will be discussed. We will first look at the definition and contents of the concept of legality
as found in the Constitution, section 35(3)(l). Then we will examine the five rules embodied in the
principle, i.e. the ius acceptum, the ius praevium, the ius certum, the ius strictum and the nulla poena
sine lege principles.

DEFINITION AND CONTENTS OF

PRINCIPLE OF LEGALITY
• Nullum crimen sine lege - “no crime without a legal provision”

• Section 35(3)(l) of Constitution

An accused,
(1) may not be convicted of a crime -
(a) unless the type of conduct with which he is charged has been
recognised by the law as a crime
(b) in clear terms
(c) before the conduct took place
(d) without it being necessary to interpret the words in def. broadly; and
(2) if convicted, not be sentenced unless the sentence also complies with
the four requirements in 1(a) – (d)

From the first learning unit, you will remember that when determining whether a person is criminally
liable, the first question to be asked is whether the type of conduct allegedly committed by such
person is recognised by the law as a crime. No one can be convicted of any conduct if such conduct is
not prohibited by law. It is this very specific aspect of a person's conduct that lies at the root of the
principle of legality. The principle of legality is also known as the nullum crimen sine lege principle.
This Latin expression means ''no crime without a legal provision". The principle of legality is contained
in section 35(3)(l) of the Constitution. This section states that an accused may not be convicted of a
crime, (a) unless the type of conduct with which he is charged has been recognised by the law as a
crime, (b) in clear terms , (c) before the conduct took place, (d) without it being necessary to interpret
the words in def. broadly; and if convicted, not be sentenced unless the sentence also complies with
the four requirements in (a) – (d).

Rules
(1) Court may not create a crime –
Ius acceptum

(2) Court may only find accused guilty of a crime if act was
recognised as a crime at the time of commission –
Ius praevium

(3) Crimes must not be formulated vaguely –

Ius certum

(4) Court must interpret definition of crime narrowly rather than

broadly –
Ius strictum

(5) Above rules must also apply to sentencing –

Nulla poena sine lege

The five rules embodied in the principle of legality as stated above in the Constitution are given brief
Latin labels - Courts may not create a crime – Ius acceptum; Courts may only find accused guilty of a
crime if act was recognised as a crime at the time of commission – Ius praevium; Crimes must not be
formulated vaguely – Ius certum; Court must interpret definition of crime narrowly rather than broadly
– Ius strictum; and the above rules must also apply to sentencing – Nulla poena sine lege.

Ius Acceptum
• Common law crimes
• No provision in common law – no crime – a court has no legislative
powers – Masiya case.

• Statutory crimes
Parliament creates a crime – Act must declare (1) which type of conduct is a crime,
and (2) what the punishment is.
Distinguish between a
1. Legal norm – Provision in Act creating a legal rule which does not create a
crime
2. Criminal norm – Provision in Act making clear that certain conduct constitutes
a crime
3. Criminal sanction – Provision in Act stipulating what punishment a court must
impose after conviction.
Director of Public Prosecutions, Western Cape v Prins 2012 (2) SACR 183 (SCA):
No crime created in the absence of a penalty clause in the particular legislation –
imposition of punishment is left to the discretion of the court.

The first principle to consider is the ius acceptum principle. Before a court can convict somebody of a
crime, it must be clear that the kind of conduct with which the person is charged is recognised as a
crime in terms of either common law or statutory law. A court cannot convict a person just because
the court believes the conduct must be punished. If there is no applicable crime, the court cannot
create a crime to punish such person – only legislature can create crimes. This is the ius acceptum rule.
The Latin word ius means "law" and acceptum means "which has been received". A free translation of
ius acceptum would read: "the law as it has been received up to date". In South Africa, the ius
acceptum refers to both common and statutory law. The ius acceptem principle in common law crimes
stipulates that where there is no provision in common law, there is no crime, and a court may not
create a crime. In the Masiya case, the court stated that in a constitutional democracy such as ours,
the legislature, and not the courts, has the major responsibility for law reform, and that the delicate
balance between the functions and powers of the courts, on the one hand, and those of the
legislature, on the other hand, should be recognised and respected. With statutory crimes (i.e., crimes
created in Acts of parliament), such crime must expressly declare that that particular type of conduct
is a crime, and what punishment a court must impose upon a person convicted of such a crime. In
order to see whether a provision of an Act has indeed created a crime or not, it is feasible to distinguish
between a legal norm, a criminal norm and a criminal sanction in an Act.

A legal norm in an Act is a provision creating a legal rule that does not simultaneously create a crime,
e.g., No person may travel on a train without a ticket. There is no crime in this legal prohibition. A
criminal norm in an Act is a provision that makes it clear that certain conduct constitutes a crime, e.g.
No person may travel on a train without a ticket, and any person who contravenes this provision
commits a crime. It is clear that the rule has now become a crime. A criminal sanction is a provision
in an Act stipulating what punishment a court must impose after it has convicted a person of that
crime, e.g., No person may travel on a train without a ticket, and any person who contravenes this
provision commits a crime and is punishable with imprisonment for a maximum period of three
months or a maximum fine of R1 000, or both such imprisonment and fine. Here the criminal norm
contains a criminal sanction. In the case of Director of Public Prosecutions, Western Cape v Prins, the
Supreme Court of Appeal held that even in the absence of a penalty clause (prescribed punishment)
in a particular legislation, a crime has still been created if the objective of the legislation was to create
a crime. The imposition of punishment is then left to the discretion of the court, as has always been
the position in the common law.

Ius Praevium

• Creation of a crime with retrospective effect not legal

• Section 35(3)(l) of Constitution

Ius Certum

• Crimes must be formulated clearly, not vaguely

Next, the principle of legality implies that nobody ought to be convicted of a crime unless, at the
moment it took place, the type of conduct committed was recognised by the law as a crime. This
application of the principle of legality is known as the ius praevium rule. ("Praevium" means
"previous". Freely translated, ius praevium means "the law that already exists".) The Constitution
contains a provision that expressly sets out the ius praevium rule. Section 35(3) of this Act provides
that every accused has a right to a fair trial, and paragraph (l) of this subsection provides that this right
to a fair trial includes the right not to be convicted of an offence in respect of an act or omission that
was not an offence under either national or international law at the time it was committed or omitted.
The Masiya case illustrates this principle well. In this case, Mr. Masiya was charged with the rape of a
nine-year-old girl; at the trial, evidence came out that he had penetrated the girl anally which required
a conviction for indecent assault rather than common-law rape. The common-law definition of rape,
at that stage, was the unlawful, intentional penetration of the male sexual organ – the penis – into the
vagina of a woman. The Constitutional Court had to decide on the constitutional validity of the
common-law definition of rape to the extent that it excludes the anal penetration of a penis into the
anus of a female. The Court held that the common-law definition of rape be extended to include acts
of non-consensual penetration of a penis into the anus of a female. However, the Court decided that
the new, extended definition of rape could not be made applicable to Mr. Masiya. The crime could
not be applied retrospectively, so Mr Masiya was only convicted of indecent assault. If the formulation
of a crime is unclear or vague, it is difficult for a person to understand exactly what is expected of him
or her. At issue here is the ius certum rule. (Certum means "clear" – the opposite of "vague".) An
example of an unclear or vague provision is, for example, “any student who, according to the good
sense of the lecturer, deserves to be punished, shall be punished”. What is the “good sense” of the
lecturer? And who says the lecturer actually has good sense??

Ius Strictum

• Provisions creating crimes must be interpreted strictly

• Where doubt exists concerning interpretation – accused
must be given benefit of the doubt
• Court is not authorised to extend crime’s field of application
• Court may extend field of application in exceptional
circumstances; to promote the values enshrined in the
Constitution ( Masiya-case)
• Extension of definition of rape

The fourth application of the principle of legality is the ius strictum rule. The ius strictum rule implies
that a court is not authorised to interpret the words or concepts contained in the definition of the
crime widely, or to extend a crime's field of application by means of analogy to the detriment of the
accused. Provisions creating crimes must be interpreted strictly, and where doubt exists concerning
the interpretation – the accused must be given the benefit of the doubt. However, in Masiya case, the
Constitutional Court held that a High Court may, in exceptional circumstances, extend the field of
application of a crime in order to promote the values enshrined in the Constitution. Remember though
that the extended definition did not apply to Masiya. The Constitutional Court found that the
common-law definition of rape needed to be adapted to comply with the particular fundamental
human rights of women that are violated by the definition, namely the rights of women to dignity,
sexual autonomy and privacy. The trauma associated with non-consensual anal penetration is just as
humiliating, degrading and physically injurious as that associated with non-consensual penetration of
the vagina. Please read the summary of the Masiya case in your Study Guide as well as in the Reader
(4-18), and critically consider Snyman's criticism of the judgment in Criminal Law 39-41.
 Principle of legality in punishment
• Nulla poena sine lege - No penalty without a
statutory provision or legal rules
• Ius Acceptum – Court can only impose punishment
prescribed by statutory or common law
• Ius Praevium – If punishment is increased, may not
be imposed to detriment of accused
• Ius Certum – Punishment ought to be defined
clearly
• Ius Strictum – An ambiguous punishment must be
interpreted strictly

In the discussion so far, we have considered the application of the principle of legality to the creation,
validity, formulation and interpretation of crimes or definitions of crimes. When dealing with the
imposition of punishment, the ius acceptum, ius praevium, ius certum and ius strictum rules are also
applicable. The application of the principle of legality to punishment is often expressed by the maxim
nulla poena sine lege – no penalty without a statutory provision or legal rules. The application of the
rules to punishment is as follows: A court can only impose punishment prescribed by statutory or
common law (ius acceptum); if punishment is increased, it may not be imposed to detriment of
accused (ius praevium), the punishment ought to be defined clearly (ius certum) and an ambiguous
punishment must be interpreted strictly (ius strictum).

Summary of the effect of the rules embodied in the principle of legality

Principle Effect on definition of the crime Effect on punishment

Ius • Conduct should be recognised by law • Punishment must be recognised and
Acceptum as crime prescribed by law
• Courts may not create crimes • Courts may not create punishment
• S 35(3) (l) of Constitution • Inferred from S 35(3)
Ius • Act must be recognised as crime at • Punishment, increased after
Praevium commission commission, may not be imposed to
• S 35(3) (l) of Constitution detriment of accused
• S 35(3) (n) of Constitution
Ius • Crimes must be defined clearly • Punishment must be clear
Certum • Inferred from S 35(3) of Constitution • Inferred from S 35(3) of Constitution
Ius • Court should interpret definitions • Courts should interpret description of
Strictum strictly punishment strictly
• Inferred from S 35(3) of Constitution • Inferred from S 35(3) of Constitution
And that is it for this learning unit! For your convenience, we have summarised in table format the
principles and the effect they have on the definition of the crime as well as on punishment. After this
lecture, this information should already look familiar to you.

PS: These notes used in the discussion class are

merely supplementary
(in addition) to your prescribed material
i.e. your study guide, reader
and textbook remain the prime sources
from which to study!

Lastly, please note that the notes used in the lecture are merely supplementary (i.e., in addition) to
your prescribed material — your study guide, reader and textbook which remain the prime sources
from which to study!

THANK YOU FOR YOUR ATTENDING THIS

LECTURE.

SEE YOU AT THE NEXT SESSION!

Thank you for attending this lecture and see you at the next session!