Module 8

CRIMINAL
LAW
I N T RO D U C T I O N TO C R I M I N A L
L AW & A S P E C T S O F
C R I M I N A L L AW
 CRIMINAL LAW IN ESSENCE
• Criminal law defines which human conduct or behavior constitutes
a crime in terms of common law and legislation, and the
punishment that may be imposed upon conviction
• Forms part of substantive law and more specifically, public law

• In criminal law we will engage with general principles such as:

✓ The requirements for criminal liability
✓ The definition of different offences and their unique elements;
✓ Defenses/grounds of justification;
✓ Applicable punishments and sentences.

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 UNDERSTANDING
CRIMINAL LAW CASES IN
RELATION TO CIVIL CASES
 CIVIL vs. CRIMINAL CASES
CATEGORIES
1) Classification;
2) Burden of proof;
3) Onus of proof;
4) Who initiates proceedings (dominus litis);
5) Aims of proceedings; and
6) The outcome of each case.
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 CIVIL vs. CRIMINAL CASES

1) Classification
CIVIL CASE CRIMINAL CASE
Private law Public law
Individuals enforce their rights State prosecutes the accused
against one another Case citation e.g. S v
Case citation e.g. Rafoneke v Makwanyane (Pre 1961 cases
Minister of Justice and cited as R v [the accused])
Correctional Services
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 CIVIL vs. CRIMINAL CASES

2) Burden of proof
The degree of proof required to prove allegations

CIVIL CASE CRIMINAL CASE

On a balance of probabilities Beyond a reasonable doubt

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 CIVIL vs. CRIMINAL CASES

3) Onus of proof
Who must prove?
General principle: “He who alleges must prove”
• CIVIL CASE

CIVIL CASE CRIMINAL CASE

The party who alleges must The State bears the onus of
prove. proof.

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 CIVIL vs. CRIMINAL CASES

4) Who initiates the proceedings (dominus litis)

CIVIL CASE CRIMINAL CASE

The plaintiff/applicant The state initiates prosecution

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 CIVIL vs. CRIMINAL CASES

5) Aim of the proceedings

CIVIL CASE CIVIL CASE

To provide remedies (e.g. To punish offenders.
compensation) and to gain
clarity on a disputed legal
position.

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 CIVIL vs. CRIMINAL CASES

6) Outcome of each case

CIVIL CASE CRIMINAL CASE

The application or action is A conviction (guilty) or an
granted or dismissed. acquittal (not guilty).

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 OVERLAP BETWEEN CRIMINAL AND CIVIL CASES

• In some instances, there can be an overlap between a criminal matter

and a civil
• Put differently, a single set of facts can be applicable in both a criminal
law context and in civil law
• One can be prosecuted, convicted and sentenced (criminal case), then
the victim can also institute civil proceedings against the perpetrator for
damages in terms of the Law of Delict (civil case)
• Both types of proceedings will be heard at different times

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SOURCES OF CRIMINAL
LAW
 COMMON LAW

• A primary source of our criminal law.

• Some crimes, for example, incest, are punishable in terms of the Roman
– Dutch Law.
• In essence, crimes that are not punishable by statute will be punishable
in terms of the common law.
• The content of offences and applicable sentences can be found in case
law.

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 LEGISLATION
• Certain forms of human conduct become unacceptable over time
• This leads to statutory offences
• Examples of relevant legislation within criminal law:
✓ The Criminal Procedure Act 51 of 1977: The most important piece of legislation for criminal
law and the law of criminal procedure.
✓ The Drugs and Drug Trafficking Act 140 of 1992: prohibits possession and dealing in drugs
such as, cocaine, mandrax and heroine.
✓ Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007:
regulates all matters relating to sexual offences in a single statute. Repeals and replaces
various common law crimes incl. rape, incest, indecent assault
✓ The Child Justice Act 75 of 2008: regulates all criminal matters in respect of child offenders.

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 CATEGORIES OF
CRIMINAL OFFENCES
 CATEGORIES OF CRIMINAL OFFENCES

1) Crimes against one’s person;

2) Crimes against one’s property;
3) Crimes against the State;
4) Crimes against the administration of justice;
5) Crimes against community mores / good morals; and
6) International crimes.
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 CRIMES AGAINST ONE’S PERSON

• The most serious crimes in this category

are those that threaten human life (for
example murder and culpable
homicide);
• As well as crimes that injure others or
harm them severely (for example
common assault or assault to grievous
bodily harm)

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 CRIMES AGAINST ONE’S PROPERTY

• Crimes that infringe property rights, for

example:
✓ Theft and robbery;
✓ Housebreaking with the intent to
steal; and
✓ Malicious damage to property

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 CRIMES AGAINST THE STATE
• Crimes that affect the security of the state
as a whole
✓ Treason – attempting to overthrow the
government of the Republic/coercing
the states into action/inaction through
violence
✓ Terrorist activity

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 CRIMES AGAINST THE ADMINISTRATION OF JUSTICE

✓ Perjury – lying under oath verbally

or in a sworn statement
✓ Defeating or obstructing the
administration of justice
✓ Contempt of court
✓ Impersonating a police officer /
legal practitioner

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 CRIMES AGAINST COMMUNITY MORES
• Most serious crimes include:
✓ Crimes against children – pedophilia (also
“paedophilia”), child pornography, child
grooming)
✓ Incest
✓ Corruption
✓ Drug possession and dealing
✓ Selling liquor to minors (recall Enyobeni Tavern
saga)
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 INTERNATIONAL CRIMES

• These include: genocide, war crimes and crimes against humanity.

• Regulated through international law, particularly the Rome
Statute, to which South Africa is still a signatory (despite an
attempt to withdraw)

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