Aspirant Prosecutor Entry Examination Complete Study Guide: Criminal Law, Evidence, Cybercrimes, and Procedure
BASIC PRINCIPLES OF CRIMINAL LAW
Principle of Legality:
In determining criminal liability, the conduct forming the basis of a charge must be recognized by law as a crime before the conduct took place.
Morally wrong conduct is not inherently legally wrong.
Requirements:
The law must recognize the act/conduct as a crime in clear terms.
The crime must be established before the conduct occurred.
Words in the definition of a crime must not be interpreted overly broadly to encompass the conduct of the accused.
Conduct and Voluntariness:
Criminal liability requires a voluntary act (positive conduct) or omission (failure to act).
Voluntariness is distinct from deliberateness; a negligent act can constitute a voluntary, punishable criminal act.
Involuntary conduct arises through:
Absolute Force: Superior bodily force renders a person incapable of subjecting bodily movements to their will (no voluntary act).
Relative Force: The person retains the choice or ability not to commit the prohibited act.
Automatism:
Sane Automatism: Relying on the defence that the conduct was that of an automaton. The onus rests on the State to prove the act was voluntary beyond a reasonable doubt. Hallmarked by absence of premeditation (S v Matjane [2018] ZAGPPHC 956).
Insane Automatism: Relying on mental illness under Sections 77, 78, and 79 of the Criminal Procedure Act 51 of 1977 (CPA).
Omission (Failure to Act):
An omission is punishable only if there exists a legal duty to act positively, determined by the legal convictions of society (boni mores).
Seven recognized legal duties to act:
Contractual Duty: Breach of employment contract creating a duty (Pittwood (1902) 19 TLR 37).
Statute or Act: Express statutory obligation, e.g., filing tax returns under the Income Tax Act.
Control of a Dangerous Object: Responsibility for a dangerous animal or object (Fernandez v S 1966 (2) SA 259 (A)).
Protective Relationship: Parent/guardian duty to care for/feed a child (Chenjere v S 1960 (1) SA 473 (FC); Children's Act).
Public Office: Duty attached to position, e.g., police official witnessing an assault (Minister van Polisie v Ewels 1975 (3) SA 590 (A)).
Prior Positive Act (Commissioning a Danger): Previous creation of danger creates a legal duty to act (S v Van Aardt 2009 (1) SACR 648 (SCA)).
Court Order: Failure to comply with an explicit judicial order, e.g., payment of maintenance under a divorce decree.
Causation in Materially Defined Crimes:
Formally defined crimes: Prohibit specific conduct irrespective of result.
Materially defined crimes: Prohibit conduct causing a specific result. Requires proof of factual and legal causation (Daniels v S 1983 (3) SA 275 (A); S v Tembani 2007 (1) SACR 355 (SCA)).
Factual Causation: Tested via conditio sine qua non ("but-for" test). But for the accused's conduct, would the consequence have occurred when it did?
Legal Causation Theories:
Proximate Cause: Direct or immediate cause (Daniels v S 1983 (3) SA 275 (A)).
Adequate Causation: According to human experience, in the normal course of events, the act has a tendency to bring about the result (S v Counter 2003 (1) SACR 143 (SCA)).
Novus Actus Interveniens: A new intervening event breaking the causal chain. Must be an unexpected, abnormal occurrence deviating from the normal course of events. Medical negligence, even gross medical negligence, does not constitute a novus actus interveniens if the original wound remained an operating and substantial cause of death (S v Tembani 2007 (1) SACR 355 (SCA)).
Grounds of Justification (Excluding Unlawfulness):
Private Defence:
Attack Requirements: Must be unlawful (Papu 2015 (2) SACR 313 (ECB)), directed against legally protected interests (Teixeira v S 1980 (3) SA 755 (A)), and imminent or commenced, but not completed (Mokgiba 1999 (1) SACR 534 (O)).
Defence Requirements: Directed against the attacker, necessary to protect the interest (S v Engelbrecht 2005 (2) SACR 41 (W)), proportional between attack and defensive act (Ngobeni v S 2014 ZASCA 59), and defender must be aware they are acting in private defence.
Putative Private Defence: Objective test applies to private defence (unlawfulness). Subjective test applies to putative private defence (culpability/intent). Genuine but mistaken belief of danger excludes intention (S v Tuta 2024 (1) SACR 242 (CC)).
Necessity:
Protection of interest against endangered harm commenced or imminent, which cannot be averted otherwise.
Differs from private defence: Private defence stems from an unlawful human attack; necessity can stem from natural force, chance, or animals, and infringes interests of innocent third parties.
Impossibility: Excuses non-compliance with a positive legal obligation (Canestra v S 1951 (2) SA 317 (A)).
Superior Orders:
Subordinate is compelled to obey an order only if it is manifestly lawful.
Requirements under S v Mostert 2006 (1) SACR 560 (N):
The order must emanate from a person lawfully placed in authority over the accused.
The accused must have been under a duty to obey the given order.
The accused must have done no more harm than was necessary to carry out the order.
Consent: Operates as a ground of justification only for specific crimes under restricted conditions.
Entrapment: Not a ground of justification (S v Nortjé 1996 (2) SACR 308 (C)). Inadmissibility governed by Section 252A of the CPA.
De Minimis Non Curat Lex: "The law does not concern itself with trifles." Court decision to allow trifling unlawful conduct to go unpunished (Kgogong v S 1980 (3) SA 600 (A)).
Official Capacity: Performance of an otherwise unlawful act authorized in execution of official duties (S v Huyser 1968 (3) SA 490 (NC)).
Presumed Consent / Negotiorum Gestio: Acting in another's interest without express consent (e.g., breaking burglar bars to rescue a homeowner from a burning house).
Disciplinary Chastisement: Unconstitutional and no longer a ground of justification in South African law for parents (Freedom of Religion South Africa v Minister of Justice 2020 (1) SACR 113 (CC)) or educators (Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)).
Criminal Capacity:
Two-legged test evaluated at the time of the offence:
Ability to understand and appreciate the wrongfulness of conduct (cognitive).
Ability to act in accordance with an appreciation of wrongfulness (conative).
Non-pathological criminal incapacity evaluated in S v Eadie 2002 (1) SACR 663 (SCA).
Child Justice Act 75 of 2008 (as amended by Act 28 of 2019):
Below 12 years: Irrebuttably presumed to lack criminal capacity.
12 years to 14 years: Presumed to lack capacity, but State can rebut by proving capacity beyond a reasonable doubt.
Fault / Culpability:
No liability without fault (S v Dube (CC03/22) [2022] ZAMPMBHC 28).
Takes the form of Intention (dolus) or Negligence (culpa).
Participation in Crime:
Perpetrator: Conduct and culpability satisfy all definitional elements of a crime.
Co-Perpetrator: Acts jointly with others, satisfying all elements (Everts v S [2011] ZAWCHC 246).
Accomplice: Unlawfully and intentionally furthers, facilitates, or makes possible the commission of a crime by another person (S v Williams 1980 (1) SA 60 (A)).
Accessory After the Fact: Renders assistance after the completion of the offence to help the perpetrator or accomplice escape liability (S v Norman Nwasheng RC312/14 [2022]).
Doctrine of Common Purpose:
Conduct of each participant acting with a common design is imputed to the others (Sithole and Another v S [2017] ZAGPPHC 169).
Prior conspiracy is not mandatory.
Possession and Joint Possession:
Physical custody/control (objective) + intent to exercise control with knowledge (animus) (subjective).
Joint Possession: Requires shared common state of mind that item is held on behalf of the group (S v Mbuli 2003 (1) SACR 97 (SCA); S v Masilo 1963 (4) SA 918 (T)).
Executive Statements:
Statements made in execution of a conspiracy/common purpose admissible against co-conspirators (S v Shaik 2007 (1) SACR 247 (SCA)).
COMMON LAW CRIMES
Public Violence: Unlawful, intentional commission together with a group of people of act(s) constituting a serious breach of public peace (Cele v S 1958 (1) SA 144 (N)).
Contempt of Court: Unlawfully and intentionally violating the dignity, reputation, or authority of a judicial officer in their judicial capacity, or publishing information creating a real risk of prejudice (Midi Television v DPP: Western Cape 2007 (3) SA 318 (SCA)).
In facie curiae: Occurs in open court before the presiding officer (R v Magerman 1960 (1) SA 184 (O)).
Ex facie curiae: Occurs outside the court's presence (S v Nel 1991 (1) SA 730 (A)).
Defeating or Obstructing the Course of Justice: Unlawfully and intentionally defeating or subverting the administration of justice (S v Bazzard 1992 (1) SACR 302 (NC)).
Perjury: Unlawfully and intentionally making a false statement under oath or affirmation in judicial proceedings (S v Ncamane [2019] ZAFSHC 220; R v Beukman 1950 (2) SA 261 (O)).
Murder: Unlawful and intentional killing of another human being.
Dolus directus: Direct object and purpose to cause death.
Dolus eventualis: Foresight of the possibility of death occurring and reconciliation with that possibility (DPP, Gauteng v Pistorius [2015] ZASCA 204).
Culpable Homicide: Unlawful, negligent killing of another human being. Evaluated via the reasonable person test.
Assault & Assault GBH: Unlawful and intentional impairment of bodily integrity or inspiring belief of immediate violence (R v Herbert (1900) 10 CTR 424; S v Dube 1991 (2) SACR 419 (ZS)).
Crimen Iniuria: Unlawful, intentional, serious violation of another's dignitas (dignity/privacy) (S v Jana 1981 (1) SA 671 (T); R v Holliday 1927 CPD 395).
Criminal Defamation: Unlawful and intentional publication of defamatory matter (Hoho v The State [2008] ZASCA 9).
Kidnapping: Unlawful, intentional deprivation of freedom of movement (S v Hoffman 1983 (4) SA 564 (T); S v F 1983 (1) SA 747 (O)).
Theft: Unlawful, intentional appropriation of corporeal or incorporeal property (Cyber Crimes Act 19 of 2020; S v Ndebele 2012 (1) SACR 245 (GSJ); Boesak v S 2000 (1) SACR 633 (SCA); S v Kariko 1998 (2) SACR 531 (Nm)). Theft is a continuing crime (Lujaba 1987 (1) SA 226 (A)).
Section 36 of Act 62 of 1955: Failure to give a satisfactory account of stolen goods found in possession.
Robbery: Theft accompanied by violence or threats of violence (Benjamin v S 1980 (1) SA 950 (A); Yolelo 1981 (1) SA 1002 (A); Sithole 1981 (1) SA 1186 (N)).
Fraud: Unlawful, intentional misrepresentation causing actual or potential prejudice (Mdantile v S 2011 (2) SACR 142; Mngqibisa v S [2007] ZASCA 119; S v Swarts 1961 (4) SA 589 (G)).
Forgery and Uttering: Forgery is falsification of a document with intent to defraud; uttering is passing off the forged document.
Malicious Injury to Property: Unlawful and intentional damaging of property (Mnyandu 1973 (4) SA 603 (N); Biyela v S [2021] ZAKZPHC 20).
Arson: Unlawful and intentional setting fire to immovable property (Mavros v S 1921 AD 19; Dalindyebo v S [2015] ZASCA 144).
Housebreaking with Intent to Commit a Crime: Unlawful breaking and entering with criminal intent (S v Maswetsa [2013] ZAGPJHC 122; Bam v S [2020] ZAWCHC 68).
Trespassing: Trespass Act 6 of 1959 Section 1(1).
STATUTORY OFFENCES
Firearms Control Act 60 of 2000:
Section 3: Possession without licence.
Section 4: Prohibited firearms (automatic weapons, altered serial numbers).
Section 90: Unlawful possession of ammunition.
Sentencing: Minimum sentences under Criminal Law Amendment Act 105 of 1997 Section 51(2) Schedule 2 Part II for automatic/semi-automatic firearms (Tshabalala 2006 (1) SACR 120 (WLD); Motloung 2016 (2) SACR 243 (SCA)).
Drugs and Drug Trafficking Act 140 of 1992:
Section 3: Manufacture/supply of scheduled substances.
Section 4: Use and possession.
Section 5: Dealing in drugs.
Constitutional Rulings:
Prince 2019 (1) SACR 14 (CC): Decriminalized private adult possession/use/cultivation of cannabis.
- *Centre for Child Law* [2022] ZACC 35: Decriminalized cannabis possession for children (redirected to civil/child justice processes).
Section 212 Analysis: Viljoen 1991 (2) SACR 215 (C); S v Paulse 2022 (2) SACR 451 (WCC).
Prevention and Combating of Corrupt Activities Act 12 of 2004 (PRECCA):
Section 3: General offence of corruption (giver & recipient).
Sections 4-9: Specific offences (public officials, foreign officials, agents, judicial officers, prosecutors).
Criminal Matters Amendment Act 18 of 2015: Section 3 (Essential Infrastructure tampering/destruction; Mambane [2022] ZAGPPHC 223).
Domestic Violence Act 116 of 1998, as amended:
Section 17 offences; Section 7 protection orders; Minimum sentences under Act 12 of 2021 (KV v WV, Kekana, September v S).
Maintenance Act 99 of 1998:
Section 31 failure to pay; adult dependent child maintenance (Z v Z [2022] ZASCA 113); Section 41 conversion to inquiry; Section 40(1) civil execution.
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA):
Section 3: Rape (sexual penetration).
Section 5: Sexual Assault (sexual violation).
Section 14A: Sexual Intimidation.
Teddy Bear Clinic [2013] ZACC 24 ruling on child consent.
THE LAW OF EVIDENCE
Relevance & Admissibility:
Relevancy is the foundation of admissibility (CPA s210; DPP v Kilbourne [1973] AC 729; R v Mpanza 1915 AD 348; S v Mayo 1990 (1) SACR 659 (E)).
Competency & Compellability:
Mentally Challenged Witnesses: CPA s194; S v Katoo 2005 (1) SACR 522 (SCA).
Spouses: CPA s195 (State witness), s196 (Defence witness).
Children: CPA s164; cautionary rules (S v Swartz, S v Viveiros [2000] 2 All SA 86 (A)).
Witness Examination & Procedure:
Section 205 CPA: Examination before magistrate (Nel v Le Roux 1996 (1) SASV 572 (CC)).
Recalcitrant Witness: CPA s189 (S v Weinberg 1966 (4) SA 660 (A)).
Hostile Witness: CPA s190 (S v Steyn 1987 (1) SA 353 (W)).
Discrediting Own Witness: CPA s190(2).
Section 204 Indemnity: S v Mnyamana 1990 (1) SACR 137 (A).
Cross-Examination: CPA s166; limits under s166(3).
Court Examination: CPA s167, s186 (S v Sigwahla 1967 (4) SA 566 (A)).
Real Evidence:
Audio and video footage (S v Baleka 1986 (4) SA 192 (T); Mdlongwa 2010 (2) SACR 419 (SCA)).
Hearsay Evidence:
Law of Evidence Amendment Act 45 of 1988 Section 3: Admissible by consent (s3(1)(a)), provisionally (s3(1)(b)), or in interests of justice (s3(1)(c)) (S v Ndhlovu 2002 (2) SACR 325 (SCA)).
Confessions and Admissions:
Admissions: CPA s115(2)(b), s220 (S v Cloete 1994 (1) SASV 420 (A); S v Groenewald 2005 (2) SACR 597 (SCA)).
Confessions: CPA s217 (R v Becker 1929 AD 167; S v Zuma 1995 (2) SA 642 (CC)). Confirmation under s209.
MODERN TECHNOLOGY & CYBERCRIMES
ECTA 25 of 2002: Section 86 (unauthorized access/interception), Section 87 (cyber extortion/fraud).
Cybercrimes Act 19 of 2020:
Section 1: Definitions (Article, Computer, Data).
Section 2: Unlawful access.
Section 3: Unlawful interception.
Section 4: Unlawful possession of software/hardware tools.
Section 5-6: Interference with data/computer system.
Section 7-10: Cyber fraud, forgery, uttering, extortion.
Section 14-16: Malicious communications & non-consensual intimate image disclosure.
Section 53: Proof by affidavit.
THE CRIMINAL PROCEDURE ACT 51 OF 1977
Sections 1-18:
Section 1: Aggravating circumstances in robbery.
Section 6: Withdrawal of charges (6(a)) vs Stopping prosecution (6(b)).
Sections 7-16: Private prosecutions.
Section 18: 20-year prescription rule and non-prescribing offences.
Sections 19-36: Search and Seizure (s20, s21 warrant requirements in Minister of Safety v Van der Merwe 2011 (2) SACR 301 (CC); s22 warrantless search; s35 forfeiture).
Sections 36A-37: Bodily features, DNA, fingerprints, and 18 Identification Parade rules.
Sections 38-53: Arrest (s39, s40 peace officer without warrant, s42 private arrest, s49 use of force, s50 48-hour rule).
Sections 54-57A: Summons, written notices, and admission of guilt fines (s57(7) judicial review in S v Karan 2019 (2) SACR 334).
Sections 58-72A: Bail (s59 police bail, s59A prosecutor bail, s60 court bail & s60(11) schedules, S v Maliga, S v Mathebula 2010 (1) SACR 55 (SCA)).
Sections 73-104: Plea preparation, criminal capacity (s77, s78, s79 panels), joinder of charges (s81), essentials of charge (s84, s86, s87).
Sections 105-122D: Pleadings (s105A plea and sentence agreements, s106 pleas, s112 guilty plea, s113 correction of plea, s115 plea explanation, s119-122D lower court pleas for higher courts).
Sections 144-149: High Court indictments, summary of facts (S v Makayi 2021 (2) SACR 197), assessors (S v Mncwengi 2019 (2) SACR 583).
Sections 150-178: Trial conduct, section 174 discharge, open court (s152, s153, s154 publication restrictions), intermediaries (s170A).
Sections 179-207: Witness attendance, s189 recalcitrant witnesses, s204 indemnity, s205 examination.
Sections 208-253: Evidence rules, s208 single witness (S v Sauls), s209 confession, s212 affidavits, s217 confessions, s218 pointing out, s219A admissions, s220 formal admissions, s225 bodily evidence (S v Huma), s252A traps (S v Kotzé 2010 (1) SACR 100).
Sections 254-273: Treatment centres (s255), Competent verdicts (s256 attempt, s257 accessory after the fact, s258 murder, s260 robbery, s261 sexual offences, s262 housebreaking, s264 theft, s270 catch-all), previous convictions (s271, s271A, s272 SAP 69).
SENTENCING
Section 274: Evidence on sentence, pre-sentence reports, Zinn triad (offender, offence, interest of society).
Section 275: Sentence by another judge or magistrate.
Section 276: Nature of punishments (imprisonment, fine, periodical imprisonment, correctional supervision s276(1)(h)/(i)).
Section 276A: Correctional supervision requirements.
Criminal Law Amendment Act 105 of 1997 (Minimum Sentences):
Section 51(1) & Schedule 2 Part I: Mandatory Life Imprisonment (Premeditated murder, police murder, murder during rape/robbery, gang rape, child rape, human trafficking, terrorism).
Section 51(2) & Schedule 2 Parts II-IV: Prescribed minimum sentences (15, 20, 25 years for Part II; 10, 15, 20 years for Part III; 5, 7, 10 years for Part IV).
Substantial and Compelling Circumstances: Test in S v Malgas 2001 (1) SACR 469 (SCA); pre-sentence detention in S v Radebe 2013 (2) SACR 165 (SCA).
Child Justice Act 75 of 2008 (Sentencing):
Sections 68-79: Community-based sentences, restorative justice, youth care centres, imprisonment restrictions for children under 14 years.
Sections 280-297: Concurrent/cumulative sentences (s280), fine recovery (s288, s289), committal to treatment centre (s296), suspended sentences/postponements/cautions (s297).