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CRW 2602- Criminal law - UNIT 9 pg91 nice summary (pg 69 in general -…

- - - - Specific crimes FIVE broad categories
        
        crimes against the state
        
        crimes
        against the community
        
        crimes against the person
        
        crimes against property
        
        Crimes against administration of justice
- - - - Legislation which outlawed terrorism
        
        Protection of Constitutional Democracy Against Terrorist and
        Related Activities Act 33 of 2004 (assented 2005)
        
        broad definition of “terrorist activities
        
        terrorist activities” PROHIBITED BY SECTION 1:
        
        (a) Any act committed in / outside the Republic which
        
        (i) involves the USE OF VIOLENCE by any means/method
        
        (ii) involves the release into the environment of/ distributing/ exposing public to any dangerous substance / organism;
        
        (iii) endangers the life/violates the physical integrity of any person
        
        (iv) causes serious risk to the health/safety of the public
        
        v) causes the destruction/substantial DAMAGE to ANY PROPERTY
        
        (vi) is designed/calculated to cause serious interference with/serious disruption of an ESSENTIAL SERVICE
        
        (vii) causes any major ECONOMIC LOSS extensive destabilisation of an economic system of a country
        
        (viii) creates a serious public emergency situation/a general insurrection
      - ELEMENTS OF THE OFFENCE
        
        (1) An act
        
        Conduct prohibited comprises
        
        use of violence
        
        release of toxic / harmful substances
        
        conduct that endangers life/physical integrity of any person
        
        causing serious risk to health & safety of public
        
        causing damage to property
        
        an act calculated to cause serious interference with services
        
        causing destabilisation of economy & creation of public emergency/insurgency(riot
        
        (2) Unlawfulness
        
        Act performed under compulsion
        
        justify performance
        
        Provided in Act
        
        act part of protest
        
        dissent (rebellion)/industrial action
        
        not intend harm
        
        par (a)(i)–(iv) of definition - excluded from prohibition.
        
        In accordance with right to freedom of speech & right to strike (ss 10 and 23(2)(c) of Constitution).
        
        (3) A specific intention
        
        The intention has TWO components
        
        1st COMPONENT
        
        intimidate/cause feelings of insecurity
        
        cause feelings of terror, fear/panic in a civilian population
        
        threaten unity and territorial integrity of Republic
        
        2nd COMPONENT
        
        Act be committed with the intention
        
        of the advancement of an
        
        1 more item...
        
        Harbouring & concealment of person committing acts of terrorism
        
        Failure to report presence of persons suspected of intending to commit/having committed an offence
        
        Offences relating to “hoaxes”(jokes/pranks
        
        OBJECT protected = safety & security of REPUBLIC, its INSTITUTIONS & PEOPLE
    - - Definition Elements
        
        is the unlawful and intentional performance of an act, or acts, by a number of persons
        
        which assumes serious proportions and is intended to disturb the public peace and order by violent
        
        means, or to infringe the rights of another.
      - ELEMENTS OF THE CRIME
        
        an act
        
        performed by a number of persons
        
        which assumes serious proportions
        
        which is unlawful
        
        intentional
        
        3 more items...
        
        UNLAWFULNESS
        
        3 more items...
        
        SERIOUS PROPORTIONS =
        
        Reasons for the existence - safety of persons NOT involved in disturbance isTHREATENED
        
        1 more item...
      - THE OBJECT/INTEREST PROTECTED
        
        public peace and order (Salie 1938).
        
        Section 17 of Constition
        
        everyone has the right to peaceful protest
        
        however if the protest turns violent then = public violence
        
        Public violence can overlap with other crimes
        
        assault, malicious injury to property, arson & robbery
        
        due to dangerious dimensions X charged not
        with 1 of these crimes but public violence
      - JOINT ACTION
        
        Not committed by individual acting alone
        
        PUblic peace & order disturbed by number of
        persons acting in concert.
        
        Impossible to specify number of persons required
        
        Terblanche 1938 - 5 persons considered sufficient
        
        HOWEVER
        
        Other cases - was not serious as a result of limited scope & duration - 6, 8 and 10 persons
        
        considered insufficient for the commission of the crime (Mcunu, Salie supra, Nxumalo
        
        respectively).
        
        Participants Must Act in concert - with a common purpose
        
        Wilkens;
        Ndaba; Kashion; S v Whitehead).
        
        knowingly and willingly participated -
        
        prosecution need not prove precisely what acts were
        committed by which of the participants
        
        application of doctorine of common purpose applies
        (Wilkens supra; Lekoatla; Mashotonga).
        
        S v Le Roux
        
        Supreme Court of Appeal - in absence of proof of prior agreement/plan to commit
        transgressions
        
        state must prove active association with the acts of public violence of each
        individual accused
        
        proof of presence at scene of the crime not sufficient
        
        Committed in public place & on private property (Cele; Segopotsi).
        
        Participants need not be armed
      - EXAMPLES OF CONDUCT (Behaviour amounting to public violence)
        
        faction fights (Ngubane); Xybele)
        
        joint resistance to police action by a group of persons
        
        POLICE must ACT lawfully
        
        (Samaai; Segopotsi
        supra)
        
        rioting (Dingiswayo)
        
        violent coercion of other workers by a group of strikers (Cele supra)
        
        disrupting & taking over meeting by a gang (Claassens)
- - - - Perjury at common law consists in
        
        unlawful,
        intentional making of a false declaration under oath
        
        Lie under oath
        
        before a court
        
        on a AFFIDAVIT
    - - making of a declaration
        
        which is false
        
        under oath/in a form equivalent to an oath
        
        in the course of a legal proceeding
        
        in an unlawful
        
        intentional manner
        
        2.1.3 FALSE DECLARATION
        
        Must be objectively false
        
        Section 101(1) of Criminal Procedure Act
        
        assumes an objectively false declaration is required
        
        declaration may be oral/in writing (affidavit).
        
        falsehood made expressly/impliedly
        
        Prosecution relies on INNUENDO
        
        2.1.4 UNDER OATH / IN FORM SUBSTITUTED FOR OATH
        
        Must be under oath/in one of the forms allowed to be substituted for an oath
        
        affirmation to
        tell the truth/ warning by presiding official to witness to tell the truth.
        
        Three ways in which witness can undertake to speak the
        truth
        
        most common taking an OATH swearing
        
        1 more item...
        
        may declare that he SOLELMNY CONFIRM his evidence will be the truth
        
        2 more items...
        
        Young children merely WARNED
        
        1 more item...
        
        Witness who intentionally makes a false statement commits perjury
        
        2.1.5 IN COURSE OF LEGAL PROCEEDING
        
        crime only committed if false declaration is made in the course of a legal proceeding
        
        Extrajudicial, false sworn statements
        
        3 more items...
        
        legal proceeding can be a criminal / civil case.
        
        BEUKMAN - decided perjury can be committed by making a declaration OUTSIDE the court/before
        a case has begun, provided that
        
        2 more items...
      - 2.1.6 UNLAWFULNESS
        
        shortly after making false statement (in cross-examination) - witness acknowledges statement
        WAS LIE & then tells the truth - no excuse (Baxter).
        
        fact that false declaration was made by X in vain attempt to raise a defence - no excuse
        
        not every accused whose evidence is rejected as
        false is charged with perjury (Malianga).
      - 2.1.7 INTENT
        
        X must know/at least foresee possibility that his declaration is false – negligence/carelessness not
        sufficient (Mokwena 1984).
  - - - two statements under oath
        
        the statements conflict
    - - difficult to prove to common-law perjury
      - Many people escaped punishment for making false declarations
      - Fact that someone made 2 conflicting statements under 2 diff oaths did not = PERJURY
        
        only be convicted if state proved one of statements was false
        
        that he intended to lie)
        
        X might have changed his mind/could alledge as a defence
        
        what the State has to prove when prosecuting a person for contravention of this subsection
        
        X on 2 diff occasions made 2 statements under oath
        
        that the statements conflict with each other
        
        Ramdas – Appellate Division held – 2 statements must not be capable of reconciliation & they must be
        mutually distructive
      - investigating commission of a crime police take affidavit from those who can throw light
        on the alleged commission
      - Embarrassing to Prosecutor if his witness makes conflicting statements
    - - common-law perjury
        
        1 Statement
        
        can only be committed in the COURSE of legal Proceedings
      - statutory perjury there
        
        2 Statements
        
        neither of the statements need to be made in course of judicial proceedings
  - - - any ACT which
      - defeats / obstructs the course of justice
      - in an UNLAWFUL and
      - INTENTIONAL manner
    - - Obstructing NOT as serious as Defeating
      - X found guilty on charge of defeating the ends of justice
        
        ONLY if proved that justice has in fact
        been defeated
    - - unlawfully inducing (attempt to induce) witness to give false evidence in court
      - to refuse to give evidence
      - give false information to police
      - abscond (as to not give evidence in court)
      - soliciting a complainant by unlawful means to withdraw a charge
      - soliciting prosecutor by unlawful means not to prosecute
      - improperly influencing party to civil case
      - improperly seeking to influence JUDGE
      - prospective witness demands money as quid pro quo for absconding
      - person tampers with documents/exhibits in a case
      - misleads police to prevent detection of crime
    - - not a requirement that a pending case is involved
      - Not even necessary that court case be envisaged
      - Sufficient that X subjectively foresees possibility that his conduct may in ordinary course of
        events lead to the case being prosecuted or investigated
      - Must be possibility of real court case
        
        crime is not committed if X
        merely plays fool with police by telling them crime has been committed
        
        Whereas X knows that no crime has been committed
  - - - THE unlawful
      - INTENTIONAL
      - Violation of the dignity
      - repute or authority
      - of a judicial body or a judicial officer
        
        in his judicial capacity
      - OR The publication of information or COMMENTING
        
        pending judicial proceeding
        
        has the tendency to influence the outcome of the proceeding
        
        or to interfere with the administration of justice in that proceeding.
    - - to protect the administration of justice
    - - Contempt in facie curiae
        
        Committed in the presence of a judicial officer
        
        EG shouting at witnesses in cross-examination
      - Contempt ex facie curiae
        
        Actions/ remarks outside of court
        
        EG
        
        failure to comply with a court order
        
        publications which scandalise the court
        
        a summoned witness who does not appear in court
    - - reasonable terms and in the proper administration of justice
- - - - The crime by the recipient [(a) of the definition]
        
        Acceptance
        
        •agree
        
        •offer
        
        Gratification
        
        Money, gifts, avoidance of loss or penalty
        
        Loans, rights, privileges
        
        Property, employment, favours
        
        Inducement
        
        Y must accept the gratification in order to act in a certain manner
    - - The crime by the giver [(b) of the definition]
        
        GIVING :Offer or agree to give eg Shaik case
        
        Promise, lend, grant or procure, agree to lend
        
        Gratification
        
        Money, gifts, avoidance of loss or penalty
        
        Loans, rights, privileges
        
        Loans, rights, privileges
        
        Inducement
        
        X must give the gratification in order for Y to act in a certain manner
  - - - 2004 Act replaced by
        
        Prevention and Combating of Corrupt Activities Act 12 of 2004
        
        Section 34
        
        makes it an offence to not report crimes of corruption set out in this act
    - - corruption by a giver
        
        conduct of the giver
        
        the agreement by X to give gratification to Y
      - corruption committed by a recipient
        
        conduct of the party who accepted it
        
        the agreement by Y to accept gratification
    - - the acceptance by Y
        
        legislature employs two ways to broaden the meaning of “accept”:
        
        s 3(a) for certain conduct by Y which precedes the acceptance
        
        to agree to accept a gratification
        
        to offer to receive certain favours
        
        S 2(3)(a)
        
        (1) to demand, ask for, seek, request, solicit, receive/obtain gratification
        
        to agree to perform the acts named under (1) To receive GRATITICATION
        
        to offer to perform the acts named under (1)
        
        The following considerations afford Y no defence SEc 25
        
        Y does not have to accept Gratification DIRECTLY
        
        (s 3) - not have to accept gratification
        personally
        
        Making use of a MIDDLEMAN still = CORRUPTION
        
        Y did not in actual fact later perform the act which X had induced him to perform
        
        EG : Y GETS caught before he can perform the act
        
        Y is still Guilty of Corruption
        
        Corrupt activity between X & Y was unsuccessful
        
        irrelevant that state/private enterprise concerned with transaction DID NOT suffer as result
        
        Y accepted gratification - did not have the power to ACT in the corrupt manner demanded by X
      - of gratification
        
        according to legislature also mean
        “gratification”:
        
        money
        
        a gift
        
        a loan
        
        property
        
        the avoidance of a loss
        
        the avoidance of a penalty (fine)
        
        employment, a contract of employment/services
        
        any forbearance to demand any money
        
        any “favour/advantage of any description
        
        any right/privilege
      - in order to act in a certain way
        
        (INDUCEMENT)
        
        Y must accept gratification to act in certain manner
        
        b The aims KNOW FOR EXAMS
        
        To act in a manner that amounts to the illegal, dishonest, unauthorised, incomplete/biased ... exercise
        of any powers, duties/functions
        
        misuse/selling of information
        
        abuse of a position of authority, the violation of a legal
        duty/a breach of trust
        
        designed to achieve an unjustified result
        
        improper inducement to do/not to do anything
      - unlawfulness
        
        Act which otherwise amount to corruption would not be unlawful if Y acted under compulsion
        
        A person used as a police trap
        
        not act unlawfully if agrees to receive gratification from another person
        to trap person into committing corruption (Ernst; Ganie)
        
        tips” for services they performed satisfactorily - conduct is socially
        adequate
        
        Waiters
        
        receiving of gifts of reasonable proportion by employees -
        marriage/retirement/completion of a “round number
      - intention
        
        clear intention & not negligence required
        
        present in form of dolus eventualis
        
        Act contains provision - expressly applies principle (dolus eventualis) to this crime
        
        S2(1) - for purposes of Act
        
        dolus eventualis; that “wilfulblindness” amounts to knowledge of a fact & accordingly intention
        
        Fact Y accepted gratification without intending to perform the act which he was induced to
        perform, affords Y no defence (s 25(b))
    - - Anyone that unlawfully and intentionally
        
        A) accepts any gratification from any other person OR
        
        In order to act in a manner that amounts to the illegal exercise of any duties, is guilty of the offence of corruption
        
        B ) Gives any gratification to any other person
        
        In order to act in a manner that amounts to the illegal exercise of any duties, is guilty of the offence of corruption
  - - - the acquisition of
        
        a benefit
        
        by applying pressure
        
        a causal link (between pressure & acquisition of a benefit)
        
        UNLAWFULLY
        
        INTENTIONALLY
        
        Patrimonial
        
        Money or economic value
        
        Non-patrimonial
        
        Any advantage can be extorted (See s1 of the General Law Amendment Act 139 of 1992
        Eg. Threatening to show nude photos of Y
    - - pressure placed by X on Y can take the form of threats, the inspiring of fear and intimidation
      - 3.3.4 Exertion of pressure
        
        Forms of PRESSURE
        
        threats
        
        Threat also take form of harm to third person
        
        negative terms sufficient
        
        inspiring of fear/intimidation
        
        Threat of physical injury
        
        threatened with defamation (Ngqandu);
        
        Dismissal from employment (Farndon
        
        Arrest & prosecution (Lepheana).
  - - - an offence for any person unlawfully and intentionally
        
        to use or have in her possession
        
        any dependence-producing substance
        
        or any dangerous dependence-producing substance
        
        or any undesirable dependence-producing substance
      - S4 of the Drugs and Drugs Trafficking Act
        140 of 1992
    - - THE ACT = that is possession/use of
        
        a drug as described in the Act
        
        unlawfulness
        
        ntention
        
        Culpability in form of intention required
        
        Person unaware dagga in their possession cannot be found guilty of the offence
        
        General meaning of “possession
        
        possession consists of two elements
        
        physical/corporeal element
        
        (corpus/detentio
        
        degree of physical control over the thing
        
        1 more item...
        
        mental element
        
        (the animus
        
        The intention with which somebody exercises control over
        an article.
        
        There are 2 ways the state must prove the element of possession
        
        As an owner
        
        Possessio civilis
        
        Keeping it for/ on behalf of someone else
        
        Possessio naturalis
    - - an offence unlawfully and intentionally
        
        to deal in any dependence-producing substance
        
        or any dangerous dependence-producing substance
        
        or any undesirable dependence-producing substance
      - S1 of the Act
        
        “deal in” drugs defined as including performance of any act in connection with the
        
        transshipment
        
        importation
        
        cultivation
        
        collection
        
        manufacture
        
        supply
        
        prescription
        
        administration
        
        sale
        
        transmission/exportation of drugs.
  - - - Any person who possesses a firearm
        
        without a licence, permit or authorisation issued
        
        in terms of the Act
        
        for that firearm, commits an offence
    - - Firearm = lethal weapon
        
        s1 of The Firearms Control Act 60 of 2000
        
        defines a firearm as
        
        any device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant
        
        can be licensed
        
        max 15 yrs’ imprisonment
      - prohibited firearm = more ominous & destructive - amounting weapons WAR = cannon & rocket launcher
        
        prohibited firearm cannot (few exceptions) be licensed
        
        max 25 yrs’ imprisonment
    - - the possession of
        
        a firearm
        
        unlawfulness
        
        culpability
    - - somebody else possesses a firearm illegally & to fail to report this to the police
      - cause bodily injury to a person/damage to property by negligently using a firearm
      - handle a firearm while under influence of a substance which has intoxicating/narcotic effect
      - discharge a firearm in a built-up area/public place
      - Failure to Safe Custody
        
        lose a firearm due to failure to lock it away in a safe, strongroom/safe-keeping device/due to failure to
        
        take reasonable steps to prevent its loss/due to failure to keep the keys to the safe, strongroom/device
        
        in safe custody
  - - - In TERMS of this ACT it is an OFFENCE
        
        exceed the speed limit
        
        S59 of the NRTA provides that
        
        general speed limit in respect both Public ROADS in both URBAN and RURAL areas shall be prescribed
        
        Elements of the offence MUST KNOW
        
        Driving (ACT)
        
        means any person who drives/attempts to drive
        
        pedal cycle
        
        horse and cart
        
        any vehicle
        
        must constitute voluntary act
        
        If you FORCED to act unlawfully you are not guilty of a crime
        
        automatism/from epileptic fit. you not guilty
        
        CASE LAW- Rooyen = who was under influence of alcohol pushed his vehicle by exercising
        control over the steering wheel & handbrake from outside the vehicle
        
        Court held that accused had
        driven the vehicle as he had control of the movements of the vehicle
        
        CASE LAW Ekstraal -was held that if someone sits behind the steering wheel of a vehicle/controls the movements
        of the steering wheel of a vehicle while being towed
        
        situation also qualifies as driving.
        
        To drive” means to have control of a vehicle which is
        propelled by its own mechanical power
        
        Vehicle
        
        means a device designed/adapted mainly to travel on wheels/crawler tracks
        
        includes vehicles being towed
        
        a train is therefore not a vehicle in terms of this Act
        
        on a PUBLIC ROAD
        
        any road, street/thoroughfare/any other place
        
        commonly used by the public/any section thereof/to which the public
        
        1 more item...
        
        TWO requirements for a road to be considered PUBLIC ROAD=
        
        must be commonly used by public/section of public
        
        public/section of public must have right of access to it (Kriel; Dillon
        
        In excess of speed limit (general or prescribed by road sign)
        
        three general speed limits set out in section 59(1) of the NRTA
        
        A public road within an urban area (60 km/h)
        
        A public road outside an urban area (100 km/h)
        
        A freeway (120 km per hour)
        
        Unlawfulness
        
        Culpability
        
        engage in reckless driving
        
        Section 63 of the NRTA
        
        No person shall drive a vehicle on a public road recklessly negligently.
        
        any person who drives a vehicle in wilful or wanton disregard for the safety of persons or property shall be deemed to drive that vehicle recklessly
        
        considering whether subsection (1) has been contravened
        
        court shall have regard to all the circumstances of the case, including
        
        the nature, condition and use of the public road upon which the contravention is alleged to have been committed
        
        amount of traffic which at the relevant time
        
        and the speed at and manner in which the vehicle was driven.
        
        negligent/inconsiderate
        driving
        
        drive while under the influence of alcohol/drugs
- - - - revamped the laws on sexual offences
      - RAPE
        
        NEW EXPANDED Definition of RAPE
        
        Any person (X) who unlawfully and intentionally commits an act of sexual penetration with a another person (Y) without his/ her consent is guilty of the offence of rape (s3)
        
        Sexual Offences Act 2007 repeals common law offence rape
        
        Old definition -unlawful, intentional sexual intercourse by male with female without
        consent
        
        THEREFORE Other forms of sexual penetration without consent - not rape
        
        The old definition of RAPE was to narrow so it was repealed
        
        Chapter 2 - Sexual Offences Act 2007 expanded definition of rape
        
        two new statutory offences
        of rape
        
        RAPE
        
        act of sexual penetration
        
        1 more item...
        
        COMPELLED RAPE
        
        compelled another person unlawfully & intentionally to commit “an act of sexual penetration
        
        1 more item...
        
        DEFINITION
        
        3 more items...
        
        AIM of the LEGISLATION - to Punish all forms of sexual penetration without consent, irrespective of gender
        
        no age prescription for the crime of rape
      - Sexual assault
        
        DEFINITION
        
        A person (X) who unlawfully and intentionally sexually violates a complainant (Y)
        
        without the consent of Y
        
        or inspires a belief
        
        in a complainant (Y) that Y will be sexually violated
        
        is guilty of the offence of sexual assault (s5)
        
        Apart from two specific offences of rape - Act repeals common law crime indecent assault
        
        replaces INDECENT ASSAULT with
        
        sexual assault
        
        X violates Y
        
        compelled sexual assault
        
        A person who unlawfully and intentionally compels a third person
        
        to commit an act of sexual violation
        
        1 more item...
        
        forcing 3rd party to do it to someone else (Y)
        
        compelled self-sexual
        assault
        
        Forcing Y to do it to themselves
      - 4.4 SEXUAL OFFENCES AGAINST PERSONS 18 YEARS/OLDER
        
        Forcing such persons to witness sexual offences, sexual acts with another or self-masturbation
        
        Flashing
        
        Exposure or display of child pornography
        
        The engagement of such persons in sexual services
        
        Prostitution
      - 4.5 INCEST
        
        DEFINITION
        
        Persons who may not lawfully marry each other
        
        Because they are related by blood (consanguinity)
        
        or due to affinity (by marriage)
        
        or an adoptive relationship
        
        and who unlawfully and intentionally engage in an act of sexual penetration with each other
        
        DESPITE mutual Consent
        
        will be guilty of INCEST
      - 4.6 BESTIALITY
        
        person who unlawfully & intentionally commits an SEXUAL act with and ANIMAL see pg 53 of nice summary notes
      - 4.7 SEXUAL OFFENCES AGAINST CHILDREN 12 -16 years old (BELOW 18 YEARS old)
        
        Consensual penetration of children (12-16yrs
        
        NB of these crimes 1st one - sexual penetration of children below the age of 16 ys even with their
        consent
        
        Sexual violation (12-16 yrs)
        
        Compelling children to witness sexual crimes
        
        Sexual exploitation
        
        Sexual grooming
        
        Flashing
      - 4.7.2 Consensual sexual penetration of children 12 - 16 years old
        
        Definition
        
        person (X) who commits an act of sexual penetration with a child (Y)
        
        despite the consent of the CHILD Y to the sexual act
        
        guilty of the offence of having committed an act of consensual sexual
        penetration with a child (s 15).
        
        Two defences
        
        X was deceived about his or her (Y’s) age (reasonable)
        
        X and Y both children and age difference not more than 2 years
      - Offences against the mentally disabled
      - failure to report sexual offences against children and mentally disabled persons
      - Trafficking in persons for sexual purposes
      - Attempt, conspiracy and incitement to commit sexual offences
- - - - To “kill” unborn foetus & separate it from mother’s body – treated in our law as abortion – not murder
        
        S239(1) of Criminal Procedure Act 51 of 1977
        
        presumption of live birth if child breathed
        
        Remains possible for X to prove that even if it breathed child was dead before completely expelled from
        mother’s body
      - Neither suicide nor attempted suicide is a crime
    - - MUST be UNlawful
        
        Certain defences to taking of life
        
        private defence (including sellf-defence), necessity, official
        capacity/obedience to orders – may justify otherwise unlawful killing
    - - Murder = intentionally
      - Culpable Homicide = negligent
      - Motive = Irrelevant
  - - - court had free discretion as to period of imprisonment imposed on conviction of murder
    - - Makes provision for min sentences imposed for certain crimes - murder in certain circumstances
        
        min sentences not applicable in respect of a child who was under age 16
        at time of commission of the crime
    - - According to S51(1) **Criminal Law Amendment Act 10**5 of 1997 Courts must impose a life sentence under the following circumstances
        
        Circumstances are
        
        (1) murder planned/premeditated
        
        (2) Y was law enforcement officer (police) who has been murdered while performing his functions
        
        (3) Y somebody who has given/was likely to give material evidence at a criminal proceeding - wrt a schedule 1 offence
        
        (4) Y’s death caused by X committing/attempting to commit rape / compelled rape
        
        (5) Y’s death caused by X committing/attempting to commit robbery with aggravating circumstances
        
        (6) murder committed by person, group of persons/syndicate acting in execution/furtherance of common
        purpose/conspiracy
        
        7) Y killed to unlawfully remove any part of his body
        
        (8) Y’s death resulted from certain crimes mentioned in Witchcraft Suppression Act 3 of 1957
      - Even tho Life sentence replaces Death sentence - convict can still get parole
    - - if Circumstances for life sentence is NOT present then
        
        Then X does not qualify for Life imprisonment
        
        S51(2) – in such situations high/regional court – nevertheless obliged to impose following min period of
        imprisonment
        
        (1) 15 yrs – 1st offence
        
        (2) 20 yrs – 2nd offence
        
        (3) 25 yrs – 3rd/subsequent offender
    - - Subsection (3)(a) of S51 – legislature created mechanism whereby courts DOES NOT have to impose min sentences
        
        if substantial & compelling circumstances which justify imposition of lesser
        sentence than prescribed
- - - - 1.applies force, directly or indirectly, to the person of another, or
      - 2.inspires a belief in another person that force is immediately to be applied to her
    - - common law assault was a comprehensive crime known as inuria
        
        was NOT known as an independent crime
      - English law - assault in our law developed into independent crime
        
        iniuria committed against another’s dignity (dignitas) punished in our law as crimen iniuria
        
        iniuria against another’s good name (fama) punished criminal defamation
        
        Assault is nothing other than iniuria against the physical integrity (corpus) of another
    - - **6.1.5 Application of force
        
        Direct
        
        X punches Y with her fist, or
        
        kicks her, or
        
        slaps her in the face
        
        X commit the crime even if only spits in Y’s face/trips her so that she stumbles
        
        Indirect
        
        X commits act - results in Y’s physical integrity being infringed
        
        X sets vicious dog on Y, or
        
        X snatches away chair from under Y just as she is about to sit
        
        X derails train on which Y is travelling,
        
        X frightens horse on which Y is riding - Y falls from the horse
        
        Case law examples
        
        Marx -X gave 3 glasses of wine to drink to each of 2 children (5&7)
        children drank the wine & became sick as result
        
        A - X a policeman forced Y who he just arrested & taken to police station to drink his own urine
        X convicted of assault
      - 6.1.7 Inspiring fear of immediate force
        
        Inspiring fear/a belief in Y that force is immediately to be applied to her - constitutes act of assault
        no physical contact with/impact on, Y’s body
        
        (1) threat - 1 of violence to the person of Y
        
        Threat to Property does NOT QUALIFY
        
        (2) threat 1 of immediate violence
        
        threat which applies in the future - next day does NOT QUALIFY
        
        (3) threat 1 of unlawful violence
        
        Threatening an intruder on you property does NOT qualify
        
        personal defence does not qualify
        
        Parents disciplining child does not qualify
        
        Official Capacity
        
        Consemt
        
        (4) Y (complainant) must subjectively believe X intends to carry out threat
        
        if Y does NOT fear the threat then there is no Assault
        
        X commits this form of assault even though she does
        not perform any act/gesture but merely threatens Y verbally
    - - Previously -assumed attempted assault impossible - reason
        
        coz if X attempted to assault Y but failed It would still mean X inspired belief of assault and therefore committed a Assault
        
        exceptional cases possible X’s blow at Y which misses her may not arouse any fear in Y - such cases only
        attempted assault committed
        
        Y may be unaware of X’s words/conduct in instances where she is blind/deaf/unconscious/under
        
        influence of liquor/she does not understand X’s threatening words - Even where she is aware &
        
        understands the threat she may be completely unperturbed
    - - all requirements for assault apply to this crime – addition there must be intent to do grievous bodily harm
        
        whether grievous bodily harm is in fact inflicted on Y immaterial
        
        whether X had intent to do grievous bodily harm is factual question
        
        factors which may indicate X had such intention
        
        nature of weapon/instrumentused
        
        way it was used
        
        degree of violence
        
        part of body aimed at
        
        persistence of attack
        
        nature of injuries inflicted if any
    - - All requirements for ordinary assault applicable – in addition there must be intent to commit the further
        crime
        
        assault with intent to commit rape, robbery/murder
    - - S120(6) of the Firearms Control Act 60 of 2000
        
        Definition
        
        it is an offence to point:
        
        (a) any firearm, an antique firearm or an airgun, whether or not it is loaded
        
        or capable of being discharged, at any other person, without good reason to do so
        
        (b) anything which is likely to lead a person to believe that it is a firearm, an antique firearm or an airgun at any other person, without good reason to do so.
        
        What is a firearm
        
        A firearm means any device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant
- - - - the unlawful, intentional & serious infringement of the dignity/privacy of another.
    - - crimen iniuria
        
        violations of a person’s dignity & privacy are made punishable
        
        only two parties involved
        
        wrongdoer (X) – says/does something which violates dignity/privacy of
        
        complainant
      - Criminal defamation
        
        violations of a person’s good name/reputation are made punishable
        
        person’s reputation refers to what others think of him
        
        violation of reputation always involves three
        parties:
        
        person who makes the defamatory statement
        
        complainant (Y) - person about whom defamatory statement is made
        
        third party (one/more other people) to whose knowledge defamatory statement must come
    - - interests that are being protected
        
        Dignity
        
        aims to protect person’s dignity/dignitas
        
        dignitas mean
        
        Melius de Villiers (The Roman and Roman-Dutch Law of Injuries) classical description
        
        That valued & serene condition in his social/individual life
        
        which is violated when a person is,
        
        1 more item...
        
        subjected by another to offensive & degrading treatment
        
        1 more item...
        
        Dignity can also mean
        
        mental tranquillity, self-respect or feeling of chastity
        
        Privacy
        
        can be infringed without Y being aware of the infringement eg X watches Y undressing
        
        Bill of Rights in SA Constitution recognises person’s right to dignity & right to privacy in different
        sections.
        
        S10 recognises person’s right to dignity
        
        s14 his right to privacy
        
        Subjective and objective elements of infringement
        
        SUBJECTIVE
        
        With the infringement of dignity
        
        Y must be aware of X’s offending behaviour and feel degraded or humiliated by it
        
        EXCEPTIONS = children and mentally disabled
        
        differs from the rule for privacy i.e. need not be aware
        
        OBJECTIVE
        
        X’s conduct must offend at least the feelings of a reasonable person
      - Infringement of legal interest may lead to both civil claim and criminal prosecution
      - 7.2.8 Violation of dignity/privacy must be serious
        
        Grounds of justification are consent, necessity, official capacity
        
        Factors to take into account are
        
        ages of the parties
        
        Gender
        
        nature of the act
        
        relationship between the parties
        
        persistence of the conduct
        
        publicity
        
        Sexual impropriety
        
        Y’s public standing
      - crime only committed intentionally
  - - - Criminal defamation consists in the unlawful & intentional publication of matter concerning another
        which tends to injure his reputation
    - - the publication
        
        Publication of defamatory matter
        
        Persons good name/reputation (fama) harmed only if conduct/words complained of come to notice of
        someone other than Y
        
        If conduct comes to notice of Y only
        
        at most amount to crime iniuria if Y’s dignitas been impaired
      - of defamatory matter
      - which takes place unlawfully
        
        Publication of defamatory matter which is otherwise prima facie unlawful justified on grounds
        
        it is the truth & for public benefit that it be made known
        
        it amounts to fair comment
        
        communication is privileged
      - intentionally
        
        X must intent to harm Y’s reputation by unlawful publication of defamatory matter
        
        X must intent communication to come to notice of somebody other than person it is addressed
  - - - If a person unlawfully and intentionally removes an unmarried minor
        
        from the control of his/ her parents or guardian
        
        without their consent
        
        intending that he or she, or somebody else, may marry or have sexual intercourse with the minor
        
        Unlawfulness - Grounds for Justification
        
        necessity - X acts under compulsion
        
        Intention
        
        form of culpability = intention
        
        X must know Y is an unmarried minor
        
        X must know Y’s parents have not consented to removal
    - - factual exercise of control over minor
      - parents’/guardian’s right to
        consent to minor’s marriage.
      - minor’s consent to removal not defence
  - - - Unlawful and intentional depriving of a person
        
        of his or her freedom of movement
        
        and if such a person is a child,
        
        the custodians of their control over the child.
    - - parent cannot commit the crime in respect of her own child
      - Forcible removal not requirement
      - length of time for which person deprived of freedom of movement = immaterial
      - Motive (demanding ransom) = immaterial for purposes of liability
      - Unlawfulness may be excluded
        
        if X acted in official capacity (police officer
        
        where person aged 18/above consented to be removed
      - Intention always requires X had knowledge of unlawfulness
    - - the liberty of another
- - - - (1)
        Belongs to, and is in the possession of another
      - (2)
        Belongs to another but is in the perpetrator’s own possession, or
        
        known as embezzlement - IN SA LAW this is not a separate crime from THEFT
      - (3)
        Belongs to the perpetrator but is in another’s possession and such other person has a right to possess it which legally prevails against the perpetrator’s own right of possession
      - intention = permanently to deprive the person entitled to the possession of the property, of such property
        
        Is temporary deprivation of property theft?
        
        No! Furtum usus is not a form of theft (but section 1 of Act 50 of 1956 creates an offence where property is unlawfully removed for temporary use)
  - - - Removes property belonging to someone else and appropriates it
    - - X appropriates another’s property already in X’s possession (SG 8.7)
    - - X removes her own property which is in the lawful possession of another (SG 8.8)
  - - - 1) an act of appropriation
      - 2) in respect of a certain type of property (/thing)
      - which takes place unlawfully and
        
        consent is a ground of justification
      - intentionally (more particularly with intention to appropriate)
  - - - Negative component (excluding Y from the property)
    - - Positive component (X’s actual exercise of the rights of an owner in respect of the property)