PART ONE (15): MULTIPLE CHOICE

You are asked to identify ONE false statement in each of the questions
below. If you mark more than one statement as false in any one
question – you will receive no mark for that question.
1. Which ONE of the following statements is FALSE?
(a)A person cannot be convicted of a crime if the conduct they
engaged in is not defined as a crime by law.
(b)The principle of legality requires all crimes to be defined with
reasonable precision.
(c) In order for criminal liability to arise the conduct in question
must constitute a crime at the time of its commission
(d)The type and degree of punishment applicable to an offence
must always be detailed in advance.
(e)Crimes must be interpreted narrowly and in favour of the liberty
of the individual.

2. Which ONE of the following statements is FALSE?

(a)As a general rule legal causation is a requirement for liability in
consequence crimes.
(b)Factual causation is a requirement for liability in circumstance
crimes
(c) Voluntary conduct is a requirement for liability in all crimes
(d)In certain circumstances an omission can constitute unlawful
conduct
(e)An accused’s conduct will only be unlawful if it excludes all
defences.

3. Indicate which ONE of the following statements is FALSE. In order

to successfully raise the defence of private defence:
(a)The attack must have commenced or be about to commence
(b)The defence must be directed against the attacker.
(c) The accused’s response must be necessary to avert the attack.
(d)The defence must be reasonable in the circumstances.
(e)The defence must be strictly proportional
4. Indicate which ONE of the following statements is FALSE: a
person can use deadly force to effect an arrest where there are no
other reasonable means of effecting an arrest
(a)if the suspect resists arrest and poses a threat of serious
violence to the arrestor or any other person.
(b)if the suspect resists arrest and is suspected on reasonable
grounds of committing a crime involving the infliction of serious
bodily harm.
(c) if the suspect resists arrest and is suspected on reasonable
grounds of committing a crime involving the threatened infliction
of serious bodily harm.
(d)and it is clear that an attempt to arrest the suspect has been
made and the suspect flees.
(e)and the arrestor is duly authorised to use deadly force in terms
of s 49 of the Criminal Procedure Act 51 of 1977.

5. Indicate which ONE of the following statements is FALSE. For an

act to be justified on the ground of necessity:
(a) a legal interest (inter alia) of the accused must have been
endangered.
(b) the threat to the accused must have commenced or been
imminent.
(c) the threat must have been caused by the accused’s fault,
(d)it must have been necessary for the accused to avert the
danger.
(e)the means used to avert the attack must have been reasonable
in the circumstances

6. Which ONE of the following statements is FALSE?

(a)the defence of consent is assessed subjectively.
(b)the defence of consent requires the complainants consent to
recognized by the law as a possible defence.
(c) consent will only be a valid defence if it is given by person
capable in law of consenting.
(d)consent is not recognised as a defence in South African law in
cases of voluntary euthanasia.
(e)consent can only be successfully raised if it is informed and
given without duress.
7. Indicate which ONE of the following statement is FALSE. In order
to have criminal capacity an accused must
(a)be able to appreciate the wrongfulness of their conduct
(b)be able to act in accordance with the appreciation of their
wrongful conduct
(c) not have been able to act differently in the circumstances
(d) be over the age of 10
(e)have insight and self-control

8. Which ONE of the following statements is FALSE?

(a) It is possible for a person to escape liability for murder because
they were so drunk that they did not know what they were doing.
(b) If a person drinks to give themselves sufficient courage to
commit an offence they cannot raise incapacity as a defence.
(c) A person who escapes conviction on the basis of incapacity
due to intoxication can be charged with the statutory offence of
committing a prohibited act whilst lacking criminal capacity. (s 1 of
Act 1 of 1988)
(d) When a person is charged under s 1 of the Criminal Law
Amendment Act 1 of 1988 the prosecution bears the burden of
proving that the accused lacked criminal capacity at the time of
committing the offence.
(e) Once provocation and emotional stress are established the
finding of incapacity is inevitable.

9. Which ONE of the following statements is FALSE?

(a)Dolus indirectus is judged objectively
(b)Dolus directus exists when it is the accused’s aim and object to
carry out the unlawful conduct.
(c) Dolus indirectus will exist when accused’s aim and object is not
to carry out the unlawful conduct but he or she foresaw the
unlawful conduct or consequence as virtually certain.
(d)Dolus eventualis will exist when it is not the accused’s aim and
object to bring about the prohibited result but he or she foresees
the possibility of that result occurring.
(e)All forms of dolus require the accused to know that his or her
conduct is unlawful.
10. Which ONE of the following statements is FALSE?
(a)In statutory offences it is assumed that negligence will be
sufficient to fulfil the fault requirement.
(b)If A intends to shoot B and misses and kills C he will be guilty of
murder if he foresaw the possibility that somebody else might
be killed.
(c) If A intends to shoot B, he thinks he has shot B but it turns out
that he shot C he may be guilty of murder.
(d)Negligence is the failure to conform to the standard of conduct
expected from a reasonable person.
(e)The vesari in re illicita doctrine is no longer part of our law.

11. Which ONE of the following statements is FALSE

(a) Strict liabililty requires the prosecution to prove unlawful
conduct but not intention.
(b)Vicarious liability does not require intention or unlawful conduct
on part of the accused.
(c) Vicarious liability in criminal law is a well-established part of
South African common law.
(d)The fact that an employee was not acting within the course and
scope of his employment can be raised as defence to a charge
of vicarious liability.
(e)The liability of corporations is based on vicarious liability

12. Which ONE of the following statements is FALSE?

(a)In determining the criminal liability of a corporation it is not
relevant whether the corporation or its members had knowledge
of the criminal acts or omission.
(b)A corporation will not be liable if the criminal acts of its
employee fall outside the scope of his/her employment even if
she/he is endeavouring to further the interests of the
corporation.
(c) The unlawful act of a third person acting on the instruction of a
director may be imputed to the corporate body.
(d)A director no longer bears the burden of proving that he did not
take part in the commission of an offence by another director.
 (e)A member of an unincorporated association bears a burden to
prove that he or she did not participate in the commission of an
offence by another member of that association.

13 Which ONE of the following statements is FALSE?

(a)Where it is found that there is a common purpose participation in
the common purpose will be sufficient to establish causation for
consequence crimes.
(b)In order for liability to arise from common purpose it is necessary
to not only prove the prior agreement or active association but also
the identity of the perpetrator who actually carried out the unlawful
act.
(c) For a conviction based on common purpose it is essential that fault
on the part of each participant is established.
(d)Where a common purpose arises as a result of active association
the prosecution needs to prove beyond a reasonable doubt that
each accused manifested a sharing of the common purpose with
the perpetrators by performing some act of active association.
(e)Timely and unequivocal notification to the co-conspirators of the
decision to abandon the common unlawful purpose will constitute
effective disassociation.

14 Which ONE of the following statements is FALSE?

(a)The fault element must always be satisfied in respect of
accomplice liability even if the crime committed by the
perpetrator is a strict liability offence;
(b)In consequence crimes there needs to be a causal
connection between the accomplice’s conduct and the
conduct of the perpetrator
(c) An accomplice may not be convicted of robbery with
aggravating circumstances if he does not have intention in
respect of the aggravating circumstances.
(d)A person cannot be an accessory to their own crime.
(e)In establishing accessory liability the prosecution must prove
beyond reasonable doubt that the accused intended to help
the perpetrator to evade justice.

15 Which ONE of the following statements is false?

 (a)An inciter is a person who unlawfully makes a communication to
another with the intention of influencing him or her to commit a
crime.
(b)A conspiracy is an agreement between two or more people to
commit, or to aid or procure the commission of a crime.
(c) An attempt will attract liability once there has been an act of
consummation in relation to the intended completed crime
(d)When two parties agree to commit a crime they cannot escape
liability for conspiracy if they later withdraw from the agreement.
(e)An accused can only escape attempt liability if they withdraw from
the attempt after it is completed.

Question 1

Albert awakes in the middle of the night and hears footsteps in the garden outside his
bedroom window. His house has recently been broken into and his wife attacked.
Suspecting that this might happen again, he has built a six foot wall around his property and
kept the gate locked.

After hearing the footsteps he picks up a loaded gun that lies next to his bed and fires a shot
through the metal burglar bars of the open window at a figure in the dark outside his
bedroom. The intruder is struck in the thigh by the bullet discharged from Albert's gun. It
transpires that the person struck by the bullet is Albert's neighbour, who had tried
unsuccessfully to reach Albert on the telephone in order to help him (the neighbour) get his
sick son to hospital. The neighbour eventually climbed over Albert's wall to seek help as he
knew Albert was at home.

Albert rushes his neighbour, who has lost a lot of blood from the bullet wound, and the
neighbour's son, to a nearby clinic. Although Albert tries to stop the bleeding his neighbour,
who is a haemophiliac (a chronic bleeder whose blood does not clot quickly) dies from loss
of blood before he reaches the hospital.

Albert is charged with the murder/culpable homicide of his neighbour. Consider the criminal
liability of Albert on this charge.

Would it make a difference to your answer if the neighbour were not a haemophiliac and
Albert had managed to stop the bleeding but, when the neighbour was operated on by a
young doctor in the clinic, the doctor had severed an artery in removing the bullet and the
neighbour had died from loss of blood during the operation?
QUESTION 2

H and W have been married for two years. The marriage has been turbulent from the start.
H has a short temper and the couple have had many fierce arguments some of which have
ended in H physically striking W with an open hand or, on occasions, with his fist in her face.
H is possessive about W and constantly checks her cell phone to determine who she has
contacted.

On the night in question, after returning from work, H starts drinking beer as he waits for W
to come home from her work as secretary to a small building company. When W unlocks the
front door and enters the living area, H, who has by now consumed six beers, calls out to
her from the sofa where he is lying:

“Where the hell have you been?”

W replies that she’s been at the staff party.
“So you’ve been with your boss, have you?
“Of course, I have, stupid. How could we have a staff party without him?” she responds. H
stumbles from the sofa and pushes W up against the kitchen counter.
“I’ll teach you a lesson, you bitch,” he shouts, ripping her skirt open, pulling her panties
down and unzipping his trousers.
W leans back, grabs a kitchen knife lying on the counter and plunges the knife into H’s
stomach.
H falls on his back with the knife stuck in his stomach, gasping “Help me!”

W uses her cell phone and contacts the emergency services, telling them where she lives
and that her husband has been stabbed in the stomach. The emergency services indicate
that they will be there immediately, but instruct her not to remove the knife. While she is
giving her details to the emergency services on her cell phone, H is screaming:

“Help me... stop the pain... take the knife out!”

W ends the call, puts her cell phone in her bag, places a dish cloth around the handle of the
knife and removes the knife from H’s stomach. He bleeds to death within a matter of
minutes. W carefully puts the knife back into H’s hand and places the bloodied dish cloth in
her bag. When the emergency services arrive she tells them that H removed the knife
himself.

Consider the criminal liability of W in the following two scenarios arising from the above
facts:

(i) On a charge of assault with intent to do grievous bodily harm resulting from W stabbing H
in the stomach, consider whether W could successfully raise any defence/s;

and
(ii) On a charge of murdering H, consider W’s criminal liability.
Where appropriate deal with onus of proof.

Question 3

Adam and Brett are crew members of a fishing vessel The Piranha. Adam captains the vessel
on its fishing expeditions from Hout Bay and Brett works on board in the engine- room
during these fishing trips. For six months the crew of The Piranha have been part of a
syndicate of fishing vessels that have been catching large quantities of the rare white
Steenbras—a fish protected by environmental legislation which imposes heavy criminal
penalties on those convicted of catching this particular species. Adam, Brett and the rest of
the crew are aware of the fact that the catching of white Steenbras is prohibited by law.

The Piranha has been at sea for a few days and on the day in question her crew net a large
haul of white Steenbras. While they are loading the fish into the hold some slip back into the
ocean and, as is often the case on these trips, a few large sharks following the vessel enjoy
easy pickings. The day in question is no exception and at least one large Great White shark is
seen trailing the fishing vessel.

After storing the Steenbras in the hold, Adam, Brett and the other four deck hands are making
their way back to Hout Bay when they are intercepted by a coast guard vessel manned by
members of the newly formed ‘blue scorpions’ unit which specialises in marine conservation
contraventions. The captain of the coastguard vessel, who has received a tip off that The
Piranha has been fishing illegally, calls upon The Piranha to slow down and permit the blue
scorpions to board. His intention is to arrest the captain and crew for illegally catching white
Steenbras.

The Piranha does slow down and two blue scorpion officers prepare to climb from the
coastguard vessel onto the deck of The Piranha via a rope ladder that has been lowered by the
deckhands of The Piranha. Adam waits until the officers have started their precarious ascent
and then rushes into the engine-room, points a gun at Brett and orders him to give immediate
full throttle to the powerful engines of The Piranha. Brett has heard the

coastguard announcements and is terrified by the sight of Adam wielding a gun. He

immediately complies with the order of Adam and The Piranha lurches forward under full
throttle. The two coastguard officers, who are about to clamber onto the deck of The Piranha
lose their balance as a result of the surge in the vessel’s power and are thrown from the ladder
into the sea below. One of the officers is retrieved and pulled back to safety by the crew of
the coastguard vessel but the other, who has cut his arm in the fall and is bleeding, is eaten by
the Great White shark before the captain of the coastguard vessel and his remaining crew can
rescue him.

The captain of the coastguard vessel shouts to the crew of The Piranha that he is arresting
them and fires a warning shot above the escaping boat. The Piranha continues to make its
getaway and the captain of the coastguard vessel fires another shot at the figures standing on
deck and the bullet strikes and kills a deckhand on The Piranha. Adam, who is on deck still
wielding a gun, orders the rest of the crew to throw the Steenbras overboard to the sharks and
proceed on their journey.
When The Piranha returns to Hout Bay, Adam and Brett are arrested and charged with the
murder/culpable homicide of the blue scorpion officer who was eaten by the shark when
attempting to board The Piranha.

1. (i) Consider the criminal liability of Adam and Brett for the death of this blue
scorpion officer and consider whether Brett could successfully raise any defence on
such a charge.
2. (ii) Also consider whether the coastguard captain could successfully raise a defence
to the killing of the deckhand struck by his second bullet.

[20 MARKS]

Question 4

Mrs. May, a 50-year-old woman living in Cape Town, who has been married to her
husband for 25 years, is suffering from a humiliating disease that causes
progressive muscle weakness. This muscle weakness progresses from severe
weakness of the arms and legs to the muscles controlling speaking and swallowing
and finally to the muscles controlling breathing, so leading to respiratory failure and
pneumonia. No treatment can prevent the progression of the disease.

Mrs. May was diagnosed with this disease in 2000 and the disease is now in an
advanced stage where she is essentially paralyzed from the neck downwards and is
fed by a tube. Her life expectancy is measured in months.She is still mentally alert
and has sufficient power of speech to communicate with her husband. She requests
him to petition the DPP to grant an undertaking not to prosecute him if he assists his
wife to commit suicide, since she no longer has the physical capacity to do so
herself.

The DPP refuses to give such an undertaking and it is argued on behalf of Mrs. May
before the Constitutional Court that this decision of the DPP unreasonably and
unjustifiably violates her right to dignity, privacy and equality under the South African
Constitution.

You appear for Mrs. May in the Constitutional Court. How would you frame your
legal argument?Would it make a difference to your approach if:

(i) Mrs. May had signed a 'living will' prior to her contracting the life - threatening
disease (giving her consent in advance to the withholding of life support if she ever
got into a terminally-ill condition); or
(ii) The initial request to the DPP had included a petition to the DPP to decline to
prosecute if the health authorities (as opposed to her husband) allowed Mrs. May to
die with dignity by withholding life support?

5. After hearing the good news that they have passed their LLB examinations,
Waldo and his friends go to town to celebrate with some drinks. After Waldo
has consumed 8 beers he becomes involved in an argument with Rocky, who
has insulted Waldo's girlfriend, by calling her a 'whore'. Waldo takes a wild
swing at Rocky with the bottle he has in his right hand and the bottle breaks
against Rocky's forehead. Rocky falls to the ground. Waldo's friend, Roshan,
tries to calm Waldo but, in trying to restrain him, Waldo lacerates Roshan's
arm with the broken bottle.

Rocky dies as a result of the attack on him by Waldo and Roshan requires
numerous stitches in his arm to repair the injuries caused by the broken bottle,
wielded by Waldo.

Consider the criminal liability of Waldo for the murder/culpable homicide of Rocky
and for assault with intent to cause grievous bodily harm regarding Roshan.
Consider the success of any defence/s that Waldo might wish to raise.

6. Pablo is a South American visitor to South Africa for the 2010 World Cup. In
order to keep in touch with his family and business interests in Colombia he
purchases a cell phone, SIM card and starter pack from Vodacom in
Cavendish. The person from whom he purchases these items (Yasmin) tells
him that if he were a South African citizen or a permanent resident in South
Africa he would have to produce proof of identify, place of residence and
register his SIM card but that, as he is a South American national only here
for the duration of the soccer tournament, she is under the impression that
these fairly new requirements under the Regulation of Interception of
Communications Act do not apply to him and she therefore does not formally
register his SIM card or record any further details.

Pablo makes many calls on his new cell phone to contacts in South America, but
when he tries to leave South Africa after the soccer tournament, he is stopped at the
airport and arrested under the Regulation of Interception of Communications Act
which requires ‘everyone who has an active cell phone number or purchases a new
pre-paid starter kit, to register the SIM card’ and lays down stiff penalties for non-
compliance. Pablo claims that Yasmin at Vodacom assured him that he did not need
to register as he was a foreign national visiting South Africa for the duration of the
World Cup Soccer Tournament. Yasmin is also arrested for failing to comply with the
service provider’s obligations under the legislation, which include recording the ‘full
name and surname, identity number and at least one address of such person and
the country where the passport was issued’ of a person who ‘is not a South African
citizen or who is not permanently resident in the Republic, and who requests that a
SIM card be activated…’.

Both Pablo and Yasmin raise the defence that they did not know that they were
required, as is the case, by law to register the SIM card of a temporary visitor to
South Africa or record any particular details relating to the purchaser/user of the cell
phone. Consider the criminal liability of both Pablo and Yasmin under the Regulation
of Interception of Communications Act. In the course of your answer mention the
issue of onus of proof.

Could Vodacom, as a juristic entity, be liable for failing to record Pablo’s details and
register his SIM card?

1. Alfred is a teacher in a small rural school on the West Coast. Badow, who is
eleven years’ old and a pupil in Alfred’s class, has been disruptive at school.

On the day in question, Badow throws a heavy wooden blackboard cleaner which
breaks a window. Alfred decides to discipline Badow in order to bring order to the
class. He calls Badow to the front of the room and, after telling him to face the wall,
administers three blows across Badow’s buttocks with a long plastic ruler.

When Badow returns home and tells his mother what has happened, she decides to
lay a charge against Alfred for assaulting her son. Would Alfred be able to
successfully raise any defence(s) to this charge?

When George, Badow’s father, becomes aware of Alfred’s disciplinary action against
his son and is told of his wife’s decision to instigate a prosecution against Alfred for
assault, he slaps the back of his son’s bare legs twice with his open hand—shouting:
‘No son of mine behaves like that. Perhaps this will teach you some manners!’ Is
George guilty of assaulting his son?