Criminal Law: South African study guide

About this module

Criminal Law teaches when the state may punish a person for conduct, and what it must prove beyond reasonable doubt to do so. Educational tool, not legal advice. All law is South African.

Level: usually first or second year (LLB); most universities split it into general principles and specific crimes. Prior knowledge: Module 1 (sources, precedent, the Constitution and the Bill of Rights); Module 4 (delict), whose elements of conduct, unlawfulness, fault and causation have close parallels here, with important differences that this module points out.

How this guide teaches

Every chapter is taught like a teacher would: plain language first, a problem to start, "In short" summaries, case boxes (Legal issue / Held / Why it matters; facts only where they help distinguish a case, never amounts), memory aids, common mistakes, and a five-sentence recap. Cases are the prescribed or commonly taught ones, cross-checked across universities; where a prescribed case cannot be found or checked, a verified case on the same point is used and the substitution is recorded. Worked examples use the labels The facts / Issue / Principle / Application / Conclusion.

Common cases in this module

These are the cases taught in boxes in this module. "Read" means the judgment was read on SAFLII for this module (through a summarising tool). "Via" means the case is described from a later judgment or secondary source, and the original was not read.

Cases mentioned but not taught in boxes: Minister van Polisie v Ewels (1975) and Kruger v Coetzee (1966) (from Module 4); R v Smith (1959) (as quoted in Tembani); Ex parte Minister van Justisie: In re S v Van Wyk (1967) (date and subject only); S v Laubscher (1988) (via Eadie); S v Chretien (1981) (reported headnote); S v De Blom (1977) (via Attorney-General, Cape v Bestall, 1988); S v Mgedezi (1989) (via Thebus); S v Safatsa (1988) (reported headnote); R v Davies (1956) (vLex summary); S v Lungile (SCA, 1999) (read on SAFLII). Kani v S (High Court, 2010) was read for one point.

Module blueprint

The module follows the order in which a court decides whether someone is guilty: was there conduct that fits the definition of a crime, was it unlawful, did the accused have criminal capacity, and did the accused act with fault? It then deals with people who help, crimes that are not completed, and the main specific crimes.

Outcomes. By the end, a student can: state and apply each element of criminal liability (LK1 to LK8); apply the rules on participation and incomplete crimes (LK9 to LK10); define and apply the main specific crimes (LK11 to LK12); explain corporate criminal liability (LK13); and answer a full criminal law problem in the Issue / Principle / Application / Conclusion format, citing the leading cases (LK14).

Memory aid. The order of the enquiry: Act, Definition, Unlawfulness, Capacity, Fault: "A Dog Under Close Fire".

Depth. First- or second-year LLB, to the standard of the Rhodes Criminal Law A and B and UNISA CRW2601 and CRW2602 courses. Each chapter follows the template of Modules 1 to 4.

Links back. Delict (Module 4): conduct, wrongfulness, fault and causation have the same names, but the standard of proof is higher, capacity is a separate element, and an accused's subjective state of mind matters more. The Constitution and the Bill of Rights (Module 1): legality, the presumption of innocence, and the rights of arrested and accused persons.

K1: Introduction to criminal law

B. Start with a problem: the new offence, the confession and the stolen bicycle

1. Parliament passes a law on 1 March making it a crime to post a certain kind of video online. The police charge Sam for a video he posted in January.
2. Thabo is charged with robbery. The prosecutor relies on a confession he made to a magistrate. Thabo says the police beat him into making it. A statute says the confession is presumed voluntary unless Thabo proves otherwise.
3. Lindiwe takes a bicycle from outside a shop, believing it is hers. It belongs to someone else.

Think first: Can Sam be convicted? Who should have to prove that Thabo's confession was voluntary? Has Lindiwe committed theft?

C. The big picture

In short: a crime is conduct the law forbids on pain of punishment by the state. The state must prove every element of a crime beyond reasonable doubt. A person can be punished only for conduct that was a crime, clearly defined, when it was committed. Liability is decided step by step: conduct, definitional elements, unlawfulness, capacity, fault.

Criminal law is the most serious way the state can interfere with a person's life: it can take away liberty. That is why the rules about what must be proved, and how clearly crimes must be defined, are strict.

By the end of this chapter you should be able to answer five questions:

1. What is a crime, and how does criminal law differ from delict?
2. What is the principle of legality?
3. Who bears the burden of proof, and to what standard?
4. What are the elements of criminal liability, and in what order are they tested?
5. How has the Constitution shaped criminal law?

Key words

D. Teaching the concepts

K1.1 What a crime is

In short: a crime is a wrong against the community, prosecuted and punished by the state; delict is a private wrong compensated between the parties.

The same act can be both. A drunk driver who kills a pedestrian may be convicted of culpable homicide and also be liable in delict, in practice through the Road Accident Fund (Module 4, D10).

K1.2 The principle of legality

In short: a person may be convicted only for conduct that was a crime when it was committed, and punished only with a punishment that the law then prescribed.

Section 35(3)(l) of the Constitution gives every accused the right "not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted". Section 35(3)(n) gives the right "to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing". Textbooks break legality into four rules:

Case: Masiya v Director of Public Prosecutions, Pretoria (Constitutional Court, 2007)

• Legal issue: May a court develop the definition of a common-law crime, and may the new definition be applied to the accused before it?
• Held: Courts may develop the common law incrementally, leaving major reform to Parliament (paras 30–31, 36); rape was extended to include "intentional penetration of the female anus by a penis without consent" (para 45), with male victims left open (para 46). But "it is appropriate to develop the law prospectively only" (para 51): applying it to the accused would breach the legality principle in s 35(3)(l) (para 57) (Nkabinde J).
• Why it matters: it shows the principle of legality at work. Even when a court develops a crime for good reasons, it cannot apply the new definition to conduct that happened before.

The definition of rape is now statutory and gender-neutral: see K11.

Back to Sam. He posted the video in January, before the law existed on 1 March. Convicting him would breach s 35(3)(l) and the ius praevium rule.

Checkpoint 1. A magistrate thinks that "stealing someone's identity online" should be a crime, though no statute or common-law crime covers it. Can she convict an accused of a new crime of "identity theft"? (Answer: CP1.)

K1.3 The burden and standard of proof

In short: the state must prove every element of the crime beyond reasonable doubt; the accused is presumed innocent and need not prove anything.

Section 35(3)(h) of the Constitution gives every accused the right "to be presumed innocent, to remain silent, and not to testify during the proceedings". If, at the end of the trial, there is a reasonable doubt about any element, the accused must be acquitted (Module 1, T7).

Case: S v Zuma (Constitutional Court, 1995)

• Legal issue: Is a reverse onus that requires the accused to prove that a confession was involuntary constitutional?
• Held: No. The prosecution's duty to prove voluntariness is inherent in the right to silence and the right not to be compelled to confess: "reverse the burden of proof and all these rights are seriously compromised" (para 33). A provision permitting conviction despite a reasonable doubt infringes the presumption of innocence (paras 27–28) and was not justified (paras 36–39) (Kentridge AJ).
• Why it matters: it was the Constitutional Court's first judgment, and it shows that a reverse onus which allows conviction despite a reasonable doubt is likely to be unconstitutional. The court said it was not deciding that every presumption is invalid (para 41).

Back to Thabo. Under Zuma, the state must prove beyond reasonable doubt that his confession was voluntary; he does not have to prove it was not.

K1.4 The structure of liability

In short: a court tests five requirements in order; if one is missing, there is no crime.

Memory aid. "A Dog Under Close Fire": Act, Definition, Unlawfulness, Capacity, Fault.

Compare delict (Module 4, D1): there, accountability is part of fault, the standard of proof is lower, and the plaintiff need only prove negligence in most cases. In criminal law, capacity is tested before fault, and most crimes require intention.

Back to Lindiwe. Theft requires intention, including knowledge that the property belongs to someone else. If she genuinely believed the bicycle was hers, she lacked intention (K7), so she has not committed theft.

Checkpoint 2. Why must capacity be tested before fault? (Answer: CP2.)

I. Common mistakes

J. Recap in five sentences

1. A crime is conduct forbidden by law on pain of state punishment, proved beyond reasonable doubt.
2. The principle of legality forbids conviction for conduct that was not a crime, clearly defined, when it was committed (s 35(3)(l)).
3. Courts may develop a common-law crime only incrementally and prospectively (Masiya).
4. The accused is presumed innocent, and a reverse onus that permits conviction despite reasonable doubt is likely unconstitutional (Zuma).
5. Liability is tested in order: act, definitional elements, unlawfulness, capacity, fault.

Back to the problem. Sam cannot be convicted (no crime when he acted). The state must prove Thabo's confession voluntary (Zuma). Lindiwe lacked intention, so no theft.

Explain it to a friend. In about 100 words, explain why a person cannot be jailed for doing something that only became a crime afterwards.

K1 practice

Checkpoint answers

Worked example: the vague by-law

The facts. A municipal by-law makes it a crime to "behave inappropriately in a public place". Nomsa is charged for singing loudly in a park.

Issue. Is the by-law consistent with the principle of legality?

Principle. A crime must be defined clearly enough for people to know what is forbidden (ius certum); an accused may not be convicted for conduct that was not clearly an offence (s 35(3)(l)).

Application. "Inappropriately" gives no fixed standard: one person's singing is another's nuisance. Nomsa could not know in advance whether her conduct was forbidden.

Conclusion. The by-law is very likely too vague to found a conviction, and is open to constitutional challenge.

Started for you. A trial court is not sure, beyond reasonable doubt, that the accused was the person who fired the shot, but thinks it more likely than not. Because the state bears the burden of proof beyond reasonable doubt…

Your task: finish in two sentences. Model answer: …a probability is not enough; a reasonable doubt remains about an element of the crime. The accused must be acquitted (s 35(3)(h)).

Try it yourself. In 2027 the Constitutional Court develops a common-law crime to cover new conduct. The state wants to use the developed definition against an accused whose conduct took place in 2026. Hint: Masiya paras 51, 57.

Model answer (outline): the development applies prospectively only; applying it to conduct before the judgment would breach s 35(3)(l); the accused can be convicted only of whatever crime his conduct fitted when he acted.

Flashcards (15)

Quiz (38 marks, about 45 minutes)

Section A (6 marks, 1 each).

1. The standard of proof in a criminal trial is: - A. a balance of probabilities. - B. beyond reasonable doubt. - C. clear and convincing evidence. - D. prima facie proof.
2. The rule that a crime must be clearly defined is: - A. ius acceptum. - B. ius praevium. - C. ius strictum. - D. ius certum.
3. In Masiya, the Constitutional Court: - A. developed the definition of rape prospectively only. - B. convicted Mr Masiya of rape. - C. made rape gender-neutral. - D. abolished the crime of indecent assault.
4. In S v Zuma, the court struck down a provision that: - A. created the crime of robbery. - B. allowed trial by jury. - C. placed the burden of proving an involuntary confession on the accused. - D. banned confessions.
5. Capacity is tested: - A. after fault. - B. before fault. - C. only for children. - D. only in delict.
6. Section 35(3)(l) of the Constitution protects the right: - A. to remain silent. - B. to legal representation. - C. to a public trial. - D. not to be convicted for conduct that was not an offence when committed.

Section B (12 marks).

7. Explain the four rules of the principle of legality, with an example of each. (6)
8. Explain the decision in S v Zuma and its importance for the presumption of innocence. (6)

Section C (20 marks).

9. Advise Sam, Thabo and Lindiwe in section B of this chapter. (10)
10. "Masiya shows that courts are too timid in developing criminal law." Discuss. (10)

Answer key

Q7 (6). Ius acceptum, praevium, certum, strictum, each explained with an example (1½ each).

Q8 (6). Facts and the reverse onus (2); holding: inherent in right to silence; conviction despite reasonable doubt; invalid (3); limits: not every presumption (para 41) (1).

Q9 (10). Sam: legality, s 35(3)(l) (3). Thabo: Zuma, state's burden (3). Lindiwe: no intention, mistake (K7) (4).

Q10 (10). Majority's reasons: incremental development, separation of powers, legality (4); Langa CJ's gender-neutral view (2); later statutory reform (K11) (2); evaluation (2).

K1 source notes