criminal law

define criminal law

• branch of law that defines crimes, sets out punishments and regulates how offenders are prosecuted

• ensures that society functions in an orderly way

• by setting legal boundaries for acceptable behaviour

according to the normative definition, what is law

• body of rules

• governing human behaviour

• prescribed by society

• applied by the courts and

• enforced by the executive

distinguish between the two perspectives of law

• de lege lata = the law as it currently exists

• de lege ferenda = the law as it should be, suggesting changes/improvements

define public law and its implications with CRSA, provide examples of subdivisions

• governs relationships involving the state

• CRSA implication = state is always involved

• horizontal application

  • relationship between public entities

• vertical application

  • relationship between state = authoritative power and legal subjects of state

• eg. constitutional, administrative, criminal

define private law and its implications with CRSA, provide examples of subdivisions

• deals with relationships between individual

• disputes are between individuals in a civil suit

  • horizontal application

• eg. succession, things, obligations

define material (substantive) criminal law

• defines what acts/omissions constitutes crimes

• comprised of substantive legal rules setting out R+D’s of subjects/state

• est the elements that must be proven for someone to be guilty

• public and private law form part of substantive law

define formal (procedural) law

• comprised of rules setting out the procedure by which rules of substantive law are enforced

• includes criminal procedure law

define criminal law of evidence and criminal procedure law

• regulates how evidence is collected, presented and assessed in court

• ensures that trials are fair and just by setting standards of proof

  • eg. bwr, sip, spr

• criminal procedure lays down the procedure by which alleged criminals are brought before the court and tried for their alleged crimes

state and explain the legal process of criminal law (elements of a crime)

1. legality

   1. act must be recognised as crime under law

2. act/omission

   1. accused must have committed an act or failed to act when required

3. causation

   1. act must have directly led to a specific consequence

4. unlawfulness

   1. act must be against the law, with no legal justification

5. capacity

   1. accused must be mentally and legally capable of committing crime

6. fault/culpability

   1. accused must have had criminal intent/negligence

define and explain the 2 types of crimes

• materially defined

  • punish the outcome

  • consequence crimes

  • eg. murder

• formally defined

  • punish act itself regardless of outcome

  • eg. sexual assault

provide Snyman and Burchell’s definitions of material criminal law

• Snyman: legal rules determining R+D’s of individuals and state

• Burchell: the law that criminalises certain actions and sets punishment for those who commit them

why is Burchell’s definition of material criminal law preferred over Snyman’s?

more detailed and includes key elements of a crime (unlawful act and guilty mind/culpability)

identify the similarities between crimes and delicts

• both involve unlawful and wrongful acts/omissions

  • either a person does something they shouldn’t or

  • fail to do something they are legally required to do

distinguish the difference between who is affected in crime and delict

• crime = affects the public/society (community interest)

• delict = affects a private individual (personal interests)

distinguish the difference between the type of law and procedures that categorises crime and delict

• crime = public law/criminal procedure

• delict = private law/civil procedure

distinguish the difference between who takes legal action in crime and delict

• crime = state prosecutes offender

• delict = injured party can decide to pursue damages and can drop at any time

distinguish the difference in terms of the aftermath of committing an act of crime or delict

• crime = punishable by the state

• delict = results in damage to one and the injured party has the right to claim compensation

identify the 2 manner of sanctions that divide crime and delict

• crime = punishment is imposed with view to retribution, prevention, deterrence and rehabilitation

• delict = compensation to place the injured party in the same position before the delict occurred

differentiate between crimes and offences

• action prohibited by common law = crime

• action prohibited by statute = offence

list all theories of punishment

• absolute

• relative

• combination

main difference between absolute vs relative theories

• absolute: punishment is the end of criminal justice exercise

• relative: punishment is secondary to the 3 aims of criminal justice

  • prevention, deterrent (individual and general), reformative

explain the retributive theory

• absolute theory

• punishment is justified

• restoration of the legal balance which has been disturbed by the commission of the crime

• requires that punishment be proportionate to the degree of harm

• operates within an inter-deterministic construction of society

  • presupposing that man has free will

• respects free will and human dignity

describe the preventative theory

• relative theory

• purpose of punishment is to prevent crime

• can coexist with deterrence and reformation theories

• heavily depends on the ability of the courts to establish beforehand which kinds of criminals should be removed from society

describe the deterrence theory

• relative theory

• separated into individual and general

• individual: offender as an individual is deterred from the commission of further crimes

  • underpinned by SA’s 90% recidivism rate

• general: places emphasis on deterring all of society from committing crimes

  • idea = imposition of punishment sends message to society to fall in line

  • effectiveness is not dependent on the severity of the punishment (not proportionate)

detail the criticisms for the general deterrence theory

• presumes that man is rational in nature and has a preference for painlessness

• deterrence can never be proven

• culpability cannot be explained by relying only on this theory

• application of this theory makes imposing disproportionate punishment on an offender = permissible

describe the reformative theory

• relative theory

• fairly recent in origin

• purpose of punishment is to reform the offender as a person

detail the criticisms of the reformative theory

• does not provide for the punishment to be proportionate to the harm inflicted

• difficult to ascertain beforehand how long it will take to reform an offender

• only effective with relatively young offenders who can change their bad habits

• rehab is more often an ideal than a reality

• not strictly necessary to wait for someone to commit a crime before reforming him

define the combination theory

• courts do not reject absolute/relative theories outright

• but do not accept that 1 theory is completely correct either

• instead, favour combo of theories tailored to each case

according to Matyityi, what considerations must the court balance when imposing a sentence