The Persons that are involved in the crime - subdivided into two categories, persons who

participate and persons who do not participate. A person involved who participates is a
``participant''. It furthers the commission of the crime.
Accessory after the fact is not participant – he does not further the commission of the crime –
when he learns about it the crime has already been committed.
``participants'' - be divided into two - perpetrators and accomplices.
The definition of a perpertrator
Person is perpetrator if: General Principles of liability
(1) his conduct, the circumstances in which it takes place (including, where
relevant, a particular description with which he as a person must, according to the
definition of the offence, comply), and the culpability with which it is carried out
are such that he satisfies all the requirements for liability contained in the
definition of the offence
OR Doctrine of common purpose
(2) if, although his own conduct does not comply with that required in the
definition of the crime, he acted together with one or more persons and the
conduct required for a conviction is imputed to him by virtue of the
principles relating to the doctrine of common purpose.
Definition of an accomplice is this
A person is an accomplice if
(1) although he does not complying with all the requirements for liability set
out in the definition of the crime, and
(2) although the conduct required for a conviction is not imputed to him in terms
of the doctrine of common purpose, he engages in conduct whereby he furthers
the commission of the crime by somebody else.

Whether someone is perpetrator, first look at definition crime and, secondly, consider whether
accused's conduct, state of mind and characteristics comply with definition.

Some crimes can only be committed by people complying with a certain description - e.g. - high
treason only committed by person owing allegiance to SA republic.
crime can only be committed by a person who has a certain occupation (e.g.
a medical doctor or holder of a certain licence.
accomplice, he furthers the crime committed by someone else.

Court convicts somebody of crime without explicitly specifying he is convicted as accomplice

to crime, it means he is convicted as a perpetrator (or co-perpetrator

PERPETRATORS (Criminal Law 260±272)

1.3.1 Co-perpetrators: unnecessary to identify principal perpetrator

Person is perpetrator if he complies with all requirements for liability in definition of crime, or if
the act of somebody else who is perpetrator is imputed to him in terms of common purpose
doctrine.
Where there is more than one participant or perpetrator, it is not always possible to select one as
the principal offender.
Principal offender-distinction between principal offender and other perpetrators is not
important for the purposes of liability - it can important in assessment of punishment.
Where several persons commit crime together and their conduct, state of mind
and characteristics all comply with definition of crime, each one of them is co-perpetrator - One
co-perpetrator's contribution may be more or less than that of the other.

Co-perpetrators: difference between direct and indirect perpetrator irrelevant

. A direct perpertrator is a perpetrator who commits the crime with his own
hands or body.
. An indirect perpetrator does not commit the crime with his body, but makes
use of somebody else to commit the crime
The distinction between a direct and an indirect perpetrator is of no significance for purposes of
determining liability.

For the purposes of liability as a perpetrator in commission of crime e.g. murder:

. someone stands guard while his partner shoots Y dead (Mashami 1967
. drives his partner to and from scene of crime (Bradbury 1967
. tells him where he can find Y, or
. stands next to him while he assaults Y, ready to help him if it is required of
him (conduct assistance and encouragement to principal offender) (Mbande 1933; Du Randt
1954.
. obtains his services to shoot Y (Nkombani 1963
Their conduct and culpability comply with requirements for liability set out in definition of crime
- their acts also amount to a causing of Y's death. But for their acts a conditio sine qua non, Y
would not have died - a passive spectator to a deed of murder cannot be held liable as a co-
perpetrator (compare the position of accused no 4 in Williams 1980.

Being a perpetrator of murder by virtue of the doctrine of common purpose

(Criminal Law 263±272; Case Book 199±205)
1.3.4.1 General

The definition of doctrine of common purpose

If two or more people, having a common purpose to commit a crime, act together
in order to achieve that purpose, the acts of each of them in the execution of such a
purpose are imputed to the others.
Has been applied mostly to the crime of murder.

Crucial requirement of doctrine is that different accused should have had same purpose. The
act of Z, who threw a heavy stone at Y which struck him on the head, is imputed to X, who had a
common purpose with Z to kill Y but who threw a stone at Y which missed him. Only Z's act is
imputed to (X) - not Z's culpability. X's liability is based upon his own culpability (Malinga
1963
Common purpose doctrine is mechanism applied to overcome difficulties inherent in proving
causation where a number of people together kill somebody else.

1.3.4.2 Proof of existence of common purpose

Existence of a common purpose is proved by:
. On the basis of an express or implied prior agreement to commit an offence.
Since people mostly conspire in secret it is very difficult for the state to prove a
common purpose based on a prior agreement.
. Where no prior agreement can be proved, the liability arises from an active
association and participation in a common criminal design (Thebus 2003
1.3.4.3 Why it is necessary to have such a doctrine

1.3.4.4 The judgment in Safatsa

Read the following decision in the case book: Safatsa 1988.
The leading case on the doctrine of common purpose is Safatsa 1988. In this case the facts
were the following: A crowd of about one hundred people attacked Y, who was in his house, by
pelting the house with stones, hurling petrol bombs through the windows, catching him as he was
fleeing from his burning house, stoning him, pouring petrol over him and setting him alight. The
six appellants formed part of the crowd. The court found that their conduct consisted inter alia of
grabbing hold of Y, wrestling with him, throwing stones at him, exhorting the crowd to kill him,
forming part of the crowd which attacked him, making petrol bombs, disarming him and setting
his house alight.
In a unanimous judgment delivered by Botha JA, the Appellate Division confirmed the six
appellants' convictions of murder by applying the doctrine of common purpose, since it was clear
that they all had had the common purpose to kill Y. It was argued on behalf of the accused that
they could be convicted of murder only if a causal connection had been proved between each
individual accused's conduct and Y's death, but the court held that where, as in this case, a
common purpose to kill had been proved, each accused could be convicted of murder without
proof of a causal connection between each one's individual conduct and Y's death. If there is no
clear evidence that the participants had agreed beforehand to commit the crime together, the
existence of a common purpose between a certain participant and the others may be proven by the
fact that he actively associated himself with the actions of the other members of the group.

1.3.4.5 Active association as proof of participation in a common purpose

Existence of a common purpose a participant and other members of group may be based on
finding that participant actively associated with actions of other members of group. In Mgedezi
1989 Appellate Division held that, if there is no proof of a previous agreement between
perpetrators, an accused whose individual act is not causally related to Y's death can only be
convicted of murder on strength of the doctrine of common purpose if five requirements
have been complied with:
. he must have been present at the scene of the crime
. he must have been aware of the assault on Y
. he must have intended to make common cause with those committing assault
. he must have manifested his sharing of a common purpose by himself
performing some act of association with the conduct of the others
. he must have intention to kill Y or to contribute to his death
Somebody who was a passive spectator of events will not terms of this doctrine, be liable to
conviction even though he may have been present at scene of action.

Other principles which emerge from the case law are the following:
. In murder cases active association can only result in liability if act of association took place
whilst Y was still alive and at a stage before lethal wound had been inflicted by one or more
other persons (Motaung 1990.
Active association with common purpose should not be confused with ratification or approval
of another's criminal deed which has already been completed. Criminal liability cannot be
based on such ratification (Williams 1970.

1.3.4.6 Liability on the basis of active association declared constitutional

In Thebus 2003 - liability for murder on basis of active association with execution of a common
purpose to kill was challenged on grounds that it unjustifiably limits constitutional right to
dignity, to freedom and security of a person right of an accused person to a fair trial.
Constitutional Court rejected these arguments and declared constitutional the common-law
principle which requires mere ``active association'' instead of causation as a basis of
liability in collaborative criminal enterprises. One of the court's main arguments was the
following:
Doctrine of common purpose serves vital purposes in our criminal justice system. Principal object
of doctrine is to criminalise collective criminal conduct and thus to satisfy need to control crime
committed in course of joint enterprises. In crimes such as murder it is difficult to prove that act
of each person or of a particular person in group contributed causally to criminal result. Insisting
on a causal relationship would make prosecution of collective criminal enterprises ineffectual.
Effective prosecution of crime is a legitimate, pressing social need. Thus, there was no objection
to the norm of liability introduced by
requirement of ``active association'' even though it bypassed the requirement of causation.

1.3.4.7 Common purpose and dolus eventualis

For X to have a common purpose with others to commit murder it is not

necessary that his intention to kill be present in the form of dolus directus - dolus eventualis –
he foresees the possibility that the acts of participants with whom he associates himself may
result in Y's death, and reconciles himself to this possibility.

X is charged with murder - a number of persons, among them X, took part in a or housebreaking,
and Z, one of members in the group, killed Y in course of action. question arised whether X and
Z had a common purpose to kill Y. Mere fact they all had intention to steal is not necessarily
sufficient to warrant inference that all of them also had common purpose to kill. One can steal
killing anybody. Whether X also had
the intention to murder, must be decided on the facts of each individual case.

The case of Mambo 2006 -practical illustration. Three awaiting-trial prisoners planned to
escape from their court cells. Plan included forceful dispossession (robbery) of a court orderly's
firearm. When orderly unlocked gate of the cell so that accused could enter, X1 gripped the
orderly around his neck, X2 reached for orderly's lower legs and
tugged at them, causing him to lose his balance and X3 reached for the orderly's firearm in his
holster on his right hip and grabbed it with both hands. As orderly wrestled to free himself from
clutches of X1 and X2, X1 uttered word shoot. X3 cocked firearm and fatally shot orderly. They
were convicted in the High Court on charges of murder, robbery, and
escape from lawful custody. The Supreme Court of Appeal upheld convictions of all
three on robbery and escape charges because these were part of their prior agreement or
mandate but held that killing of the orderly did not form part of this mandate.. It therefore had to
determine whether initial mandate had extended to include murder of orderly. Court held that by
his conduct and culpability, X3 satisfied requirements for liability on murder charge - for his
conduct (killing - orderly) to be imputed to X1 and X2, the Court had to establish that each of
them foresaw the killing of the orderly as a possibility arising from conduct of one of their
number, and reconciled themselves to that possibility. The Court held that by uttering the word
``shoot'', X1 had proved that he shared a common purpose with X3 in relation to murder of the
orderly [par 17]. Court
noted that all that X2 had done in the process of overpowering the orderly was to grab hold of his
legs.

In Molimi 2006. Supreme Court of Appeal held that conduct by a member of a group of persons
which differs from conduct envisaged in their initial mandate (common purpose) may not be
imputed to the other members, unless each knew (dolus directus) that such conduct would be
committed, or foresaw the possibility that it might be committed and reconciled themselves to
that possibility (dolus eventualis).

Facts: X1,X2, and Z co –conspirators – planned to rob a store – store manager told X2 what time
security co truck would come to get money. X1 told X2 to get 4 armed men to tackle security
guard and get the money. Z and four men fled after getting money and gunfire was exchanged.
An armed bystander exchanged gunfire with Z who had run into another store for refuge – one
employee of that store was shot and wounded the other employee whom Z had held hostage was
shot and killed.

X1, X2 and Z were all convicted in the High Court on 7 counts. These were:
robbery; the murder of the security guard of the store in which the robbery took
place (Clicks); the murder of the security guard in the other store; the murder of
the hostage held by Z in the other store; the attempted murder of the employee
who was wounded in the other store and two counts of the unlawful possession
of firearms.
X1 and X2 appealed to the Supreme Court of Appeal against their convictions. They conceded
the existence and proof of a common purpose (between X1, X2 Z) to rob store, but argued the
actions of bystander which resulted in kidnapping and death of hostage and injury to an
employee in other store were not foreseeable by them (X1 & X2) as part of the execution of
common purpose.

The court held that the attempted murder of the employee in the other store was
foreseeable, for once all the participants in a common purpose foresaw the
possibility that anybody in the immediate vicinity of the crossfire could be killed
regardless of who actually shot the fatal bullet then dolus eventualis was
present. However- kidnapping of hostage by Z and hostage's eventual murder were acts
which were so unusual and so far removed from what was foreseeable in the execution of
the common purpose that these acts could not be imputed to X1 and X2. They were acquitted
on these charges.

1.3.4.8 Dissociation from the common purpose

In certain circumstances dissociation from the common purpose can lead to

negative liability. Courts have not developed specific rules relating where withdrawal will
effectively terminate X's liability. But we have guidelines (defenses):

(1) X must have a clear and unambiguous intention to withdraw from such purpose. If X
flees, withdraws coz he is afraid of being arrested, injured, or aims
to make good his escape, then withdrawal was not motivated by a clear intention to withdraw
from a common purpose which he was a part of Lungile 1999
(2) X must perform some positive act of withdrawal. Mere passivity on his part cannot be
equated with a withdrawal, because by his previous association with the common purpose he
linked his fate and guilt with that of his companions.
(3) The type of act required for an effective withdrawal depends upon a number
of circumstances. In Musingadi 2005 , court listed factors: ``manner and degree of accused's
participation; how far commission of crime has proceeded; manner and timing of
disengagement and what steps accused took/could have taken to prevent
commission/completion of the crime.'' Court added that list was not exhaustive, but laid
down this principle: ``The greater accused's participation, and the further the commission of the
crime has progressed, then much more will be required of an accused to constitute an effective
disassociation. He may be required to take steps to prevent the commission of the crime or its
completion. It is in this sense a matter of degree and in a borderline case calls for a sensible and
just value judgment''..
(4) A withdrawal will be effective if it takes place before the course of events have reached
the ``commencement of the execution''. It is ``a matter of degree and ... calls for a sensible and
just value judgment'' (Musingadi supra).
(5) The withdrawal must be voluntary.

1.3.5 Joining in (Criminal Law 272; Case Book 206±211)

The ````joiner--in''''.. X1, who together with X2 and X3 had already inflicted a lethal wound upon Y, runs away from
the scene of the crime. While Y is still alive, Z, who has not previously agreed with X and his two associates to kill Y,
appears on the scene. Because he himself harbors a grudge against Y, he inflicts a wound on Y with a club. This
wound does not, however, hasten Y's death. Y dies shortly thereafter. May Z also be convicted of having murdered
Y?

Person in Z's position is a ``joiner-in'', because he associated himself with others' common
purpose at a stage when Y's lethal wound had already been inflicted, although Y was then (ie
when Z joined the assault) still alive.

. if the injuries inflicted by Z in fact hastened Y's death, there is a causal connection between Z's
acts and Y's death Z is therefore guilty of murder. ( Z is not a joiner-in.)
.If Z's assault on Y takes place after Y has already died from injuries inflicted by X or his
associates Z cannot be convicted of murder since the crime cannot be committed in respect of a
corpse. (Z is a joiner-in.)
. If the evidence reveals a previous conspiracy between X (or X and his associates) and Z to kill
Y, Z is guilty of murder by virtue of the doctrine of common purpose, since X's act in fatally
wounding Y is then imputed to Z. (Z is not a joiner-in.) The ``joining-in'' situation presupposes
the absence of a common purpose between X and Z.

Thus to summarise: The ``joiner-in'' is a person

. whose attack on Y did not hasten Y's death
. whose blow was administered at a time when Y was still alive
. who did not act with a common purpose together with the other persons who
also inflicted wounds on Y.

Nobody denies conduct of ``joiner-in'' is punishable - question is of what crime must he be

convicted? Before 1990 there was uncertainty regarding answer to this question. In certain
decisions and writers, ``joiner-in'' had to be convicted of murder, and in other decisions and
writers he could at most be convicted of attempted murder. In Motaung 1990 Appeal Court
considered different views on matter and in a unanimous judgment – ruled that ``joiner-in'' could
not be convicted of murder, but only of attempted murder. Judgement in Motaung is now
the authoritative judgement on the liability of a ``joiner-in'. One of reasons advanced by
court for its ruling, was the
Facts: 4 people shot by police – victim among thousands who attended their funeral she was g/f
of leo and was suspected of being informant – she was attacked during funeral and attach was
caught on camera by TV crew. Video identified 9 as attackers and were convicted of murder – on
appeal court found that while appellants actively participated in common purpose to kill
deceased, she was already fatally wounded by others. However their appeal failed b/coz the
accused shared a common purpose with the crowd to kill and actively associated themselves with
that active purpose.
following argument:
``To hold an accused liable for murder on basis of an association with crime only after all acts
contributing to victim's death have already been committed would involve holding him
responsible ex post facto for such acts. The criminal law is firmly opposed to liability based on
ex post facto or retrospective responsibility and does not recognise it in any other situation. It
would therefore be contrary to accepted principle to recognise it here.''
(ex post facto means ``after the event''.)

The most important principles relating to common purpose

Summarise the most important principles relating to doctrine of common purpose and liability of
``joiner-in''. Try and
study these principles well..
(1) If two or more people, having a common purpose to commit a crime, act
together in order to achieve that purpose, acts of each of them in execution of such a purpose
are imputed to the others.
(2) In a charge of having committed a crime which involves the causing of a certain result (such
as murder), conduct imputed includes causing of such result.
(3) Conduct by a member of the group of persons having a common purpose which differs from
conduct envisaged in the said common purpose may not be imputed to another member of the
group, unless the latter knew that such other conduct would be committed, or foresaw the
possibility that it might be committed and reconciled himself to that possibility.
(4) A finding that a person acted together with one or more other persons in a common purpose
may be based upon proof of a prior agreement or proof of active association in execution of
the common purpose.
5) On a charge of murder rule that liability may be based on active association applies only if
active association took place while deceased was still alive and before a mortal wound or
mortal wounds had been inflicted by person or persons who commenced the assault.
(6) Just as active association with common purpose may lead to liability, dissociation or
withdrawal from the common purpose may, in certain circumstances, lead to negative liability.
ACTIVITY IS BASE ON MOLINI EXACTLY!! Robbing department store – bystander
shooting and hostage and employee shot in cross fire – doctrine of common purpose cannot be
applied where some of the co-perpetrators could not have foreseen strange incident of hostage
situation that arose – they were not convicted of the hostage incident but of other charges.
NECCESITY OF DOCTRINE OF COMMON PURPOSE
If people wanted to commit crimes, they would associated themselves with a group and make
sure they don’t act alone but 2gether with a number of people so that the court would not be able
to identify a principal perpetrator.

Activity Read the case on p. 30 -31 Leading cases are Motaung, Mgedeze, and Safatsa.
SUMMARY
(1) Persons involved in commission of a crime are divided into two groups,
namely participants and non-participants.
(2) Participants further the commission of the crime, whereas non-participants do
not further the commission of the crime. An accessory after the fact is a
nonparticipant, since he comes into the picture only after the crime has already
been completed, and then helps the perpetrator or accomplice to escape liability.
(3) Participants are divided into two groups, namely perpetrators and
accomplices. The distinction drawn between these two groups is the most
important distinction relating to participation in crime. Consult definitions of a
perpetrator and an accomplice given above.
(4) Unlike a perpetrator, an accomplice does not, through his conduct, state of
mind or personal description fall within the definition of the crime, but
nevertheless commits an act whereby he furthers the commission of the crime by
somebody else.
(5) If one considers the definition of a perpetrator, it is clear that there are two
grounds upon which a person can qualify as perpetrator, namely either on the
ground that he complies with the definition of the crime, in which case one merely
applies the ordinary principles of liability (and in murder more particularly: only
the ordinary principles relating to causation), or by virtue of the operation of the
doctrine of common purpose.
(6) As far as the doctrine of common purpose as well as the liability of the
``joinerin'' is concerned, consult the summary above under 1.3.6 of the most
important principles applicable to this topic.

TEST YOURSELF
(1) Distinguish between a participant and a non-participant in a crime.
(2) Distinguish between a perpetrator and an accomplice, and give an example of
each of these groups.
(3) Give a definition of each of the following: a perpetrator, an accomplice, and
the doctrine of common purpose.
(4) Explain in one sentence why an accessory after the fact does not qualify as a
participant in a crime
(5) If more than one perpetrator is involved in the commission of a crime, is it
necessary to identify one of them as the principal perpetrator?
(6) Explain the meaning of direct and indirect perpetrator. Is there any difference
between these two categories of perpetrators as far as their liability for the crime is
concerned?
(7) Summarise the rules pertaining to the doctrine of common purpose.
(8) Discuss the judgment in Safatsa 1988. Briefly mention the facts in this
case, as well as the points of law decided by the court.
(9) Briefly discuss the judgment of the Constitutional Court in Thebus 2003
vigilante drove in motorcade to protest against drug dealers – shoot out ensured
and 7yr old girl was killed – 2 people were accused of murder and attempted
murder - state could not prove who fired the shots – Constitutional court held that
doctrine of common purpose used by the lower court to convict them was
constitutional.
(10) (a) What do you understand by the term ``joiner-in''?
(b) Explain whether there is any difference between a ``joiner-in'' and a co-
perpetrator, and give reasons for your answer.
(c) What crime does the ``joiner-in'' commit?
(d) What is the leading case on the liability of the ``joiner-in'' and what was
decided in this case?
(11) Discuss the circumstances in which our courts may find that a person has
dissociated himself or has withdrawn from a common purpose.

Participation II: Accomplices and Accessories after the fact

ACCOMPLICES (Criminal Law 273±278) 2.2.1 Introduction

Is not perpetrator accomplice is a person whose conduct does not conform to

all requirements in definition of crime but punishable because she has intentionally furthered
commission of crime by another person. Liability as accomplice is less than
liability as a perpetrator.

2.2.2 Definition
A person is an accomplice if
(1) although he does not comply with all the requirements for liability set out
in the definition of, and
(2) although the conduct required for a conviction is not imputed to him in terms
of the doctrine of common purpose, he engages in conduct whereby he furthers
the commission of the crime by somebody else.

Technical and popular meaning of the word ``accomplice''

Accomplice has two meanings, namely a technical (narrow) and popular (broad). Popular
meaning is everyday lay person's language - anybody who helps ``actual'' or ``principal''
perpetrator to commit furthers the commission in some way, without distinguishing between
persons who qualify as perpetrators as defined above. Popular meaning means accomplice is
perpetrator.

In technical meaning - accomplice can never include a perpetrator. Every time word
``accomplice'' is used in legal terminology, it bears technical (narrow) meaning.

Requirements for liability as an accomplice

Four requirements
(1) Act
There must be an act whereby commission of a crime by another person is furthered or promoted.
Furtherance can be aiding, counseling, encouraging or ordering (Jackelson
1920 - to be a spectator at commission of a crime is not furtherance Mbande 1933.
Examples of conduct where person has been held liable as an accomplice:
(1) In Peerkhan and Lalloo the conduct forbidden in the definition of crime was purchasing of
unwrought gold. Lalloo bought gold and was perpetrator. Peerkhan bought no gold, but acted as
interpreter, adviser and surety in connection with transaction. His
conduct did not comply with definition of crime (purchase of gold), but constituted furtherance of
purchase he was an accomplice.
(2) In Kazi forbidden conduct was holding or organising of a meeting without necessary
permission. K did not hold or organise meeting he addressed it. It was held that his conduct
rendered him guilty as an accomplice.
(2) Unlawfulness
Act of furthering be unlawful – there be no justification for it.
(3) Intention
The crime, committed by another person, must be furthered intentionally- Quinta.
Negligence is not sufficient. The shop assistant who inadvertently fails to close shop window is
not an accomplice to housebreaking which follows. She will only be an accomplice if, knowing
of intended housebreaking and in order to help thief, she does not close window properly. In such
a case thief need not be aware of the shop clerk's
assistance. It is therefore sufficient if the accomplice intentionally furthers crime.
Not required that perpetrator must have been conscious of accomplice's assistance. Mutual,
conscious co-operation is therefore not a requirement Ohlenschlager 1992.

(4) Accessory character of liability

A crime must have been committed by some other person. Liability as an

accomplice is known as ``accessory liability''. No person can be held liable as an
accomplice unless some other person is guilty as perpetrator Williams Maxaba. This implies that
a person cannot be an accomplice to her own crime - a crime which she committed as
perpetrator.

2.2.5 Is it possible to be an accomplice to murder?

Study Snyman 276±277 of this important and interesting topic on your own.
Williams 1980. X1, X2, X3, and X4 on train. X1 stabbed Y with knife, X2 went and held Y by
neck and X3 stabbed Y with broken bottle and X4 watched. X1 and X3 charged with murder and
X2 and X4 charged as accomplices. X2 and X4 appealed. X4 was spectator and his appeal was
upheld. X2 appeal against conviction was not upheld. Controversial that X2 was convicted as
accomplice and not co-perpetrator. His conduct complied with definition of crime of murder can
a person further death of victim without also causing it?
You must know what objection is to convicting a person of being an accomplice (as opposed
to co-perpetrator) to murder. In Williams case it was accepted that a person can be an
accomplice to murder, but this aspect of judgment has been criticised by Snyman (Criminal Law).
You must ensure that you know what the criticism is.
We (Snyman) are of opinion that it is not possible to be an accomplice to murder.
Snyman: Is it possible to further victim’s death without also causing it? Appelate court in
Williams case accepted that person may be accomplice to murder and held that one of the accused
was guilty as accomplice to murder. Snyman feel decision incorrect because the person accused
as accomplice was c-cause of death of victim and should have been convicted as co-perpetrator.
Certain legal writers are of view that it is impossible to be accomplice to murder while others
accept possibility of this form of liability.
>>>start here Safatsa – Leading case in doctrine of common purpose - a crowd of about 100
people stoned Y to death. Appelate court found they acted with common purpose to kill but
causal connection between act of each individual and Y’s death had not been proved. Court
convicted all of them of murder as co-perpetrators – judgement in Safatsa excluded possibility of
someone being convicted of as accomplice to murder if proved that he was party to common
purpose to kill and death resulted from combined conduct of group acting in common purpose.
An angry mob about fees to be paid made petrol bombs and burned house and victim and stoned
victim to death 8 people were accused or murder and all appealed 6 of them appeal was dismissed
were found charged with murder via active association and doctrine of common purpose and 2 of
them appeal was upheld.

ACCESSORIES AFTER THE FACT (Criminal Law 278±281; Case Book 212±220)
2.3.1 Introduction
Accessory after the fact is not a participant - she does not further the crime -she comes in only
after crime has been completed and helps perpetrator (or accomplice) to escape justice.
Examples: of
. X helps the real murderer by throwing the corpse into a river (Mlooi 1925
. Z murdered Y. After the murder X and Z removed certain parts of Y's body, and disposed of
body by leaving it in a lonely spot at top of a mountain. X had nothing to do with the murder
itself, but was convicted of being an accessory after the fact in respect of the murder (Mavhungu)

2.3.2 Definition
A person is an accessory after the fact to the commission of a crime if, after the
commission of the crime, she unlawfully and intentionally engages in conduct intended to
enable the perpetrator of or accomplice to the crime to evade liability for her crime, or to
facilitate such a person's evasion of liability.

Six Requirements for liability of accessory after the fact:

(1) Act or omission
must engage in some conduct (act or omission) where she assists perpetrator or accomplice to
evade liability. Mere approval or condonation of the crime is not enough – possible to be an
accessory after the fact on the ground of an omission - if there is a legal duty upon such a person
to act positively e.g. police officer sees that a crime is committed, intentionally remains passive
because she wants to protect
criminal from detection. However, a mere failure by an ordinary person (ie a person who is
not a member of the police) to report a crime that has been committed cannot be construed
as conduct amounting to being an accessory after the fact to the crime committed (Barnes
1990 (2) SACR
486 (N) 493). Neither can the mere approval or ratification of a crime after its
commission be construed as being an accessory after the fact to its commission.
(2) After the commission of the crime
X's act or omission must take place after the commission of the actual crime. If
X's act takes place at a time when the crime is still in the process of being
committed, she may qualify as a co-perpetrator or accomplice. If X had agreed
prior to the commission of the crime to render assistance, X may, depending upon
the circumstances, be a perpetrator herself, if her conduct, culpability and
personal qualities accord with the definition of the crime, or else she may be an
accomplice (Maserow 1942 AD 164 170).
(3) Enabling perpetrator or accomplice to evade liability
The act must be of a certain nature. It must be such that it assists the perpetrator
or accomplice to evade liability for her crime, or to facilitate such a person's
evasion of liability.
It is not required that the protection or assistance given be successful. One
would therefore be guilty as an accessory after the fact even though the corpse
which one helped to conceal by submerging it in a river is discovered by the
police and fished out of the river, and the murderer is brought to justice.
(4) Unlawfulness
The act must be unlawful, which means that there must be no justification for it.
(5) Intention
The accessory after the fact must render assistance intentionally. She must know
that the person she is helping has committed the crime. She must have the
intention of assisting the perpetrator (or accomplice) to evade liability or to
facilitate the evasion of liability Morgan 1992.
(6) Accessory character of liability
Liability of accessory after fact is same as that accomplice - there can only be an accessory after
fact if somebody else committed the crime as perpetrator. One cannot be an accessory after
the fact to a crime committed by oneself.
This rule leads to problems in the following kind of situation:
A, B and C are charged with murder - evidence revealed one or more of them committed the
murder - court cannot find beyond reasonable doubt which of them did. There is a reasonable
possibility that one/possibly two of them might not have committed the murder, but court cannot
determine which one of them might probably not have committed the crime -. As a result court
cannot find one of them guilty of murder.
Evidence revealed all three of the accused assisted one another to dispose of the body of the
deceased by throwing it into a river with a stone tied around its neck. The question now arises:
can A, B and C be convicted as accessories after the fact to murder?
The answer would seem to be ``no'', for the following reason: the possibility
cannot be excluded that A would then be an accessory after the fact in respect of a crime
(the murder) which she herself has committed, and the same applies to B
and C - it is certain that one of the three persons had committed the murder, it would seem to be
incorrect to convict them also of being accessories after the fact to the murder, because this
would mean that the person who is convicted would then be both a perpetrator and an
accessory after the fact in respect of the same crime a conclusion which is irreconcilable with
the basic rule that you cannot be an accessory after the fact in respect of a crime which you have
committed yourself.

In Gani 1957 the facts were identical to those described above. The Appeal Court convicted all
three of the crime of being accessories after the fact to the murder, on the strength of the
following argument:
If all three committed the murder, they are all three accessories after the fact because all three of
them disposed of the corpse; if the murder was not committed by all of them, those who did not
commit the murder are accessories after the fact in respect of the murder committed by the
other(s), and the latter are accomplices to the crime of being an accessory after the fact.
In Jonathan 1987 the Appellate Division held that Gani's case was wrongly decided, but the
court confirmed Gani's case, adding that the ``rule in Gani's case'' is an exception to the
general rule that one cannot be an accessory after the fact in respect of a crime committed by
oneself.
Punishment

In Criminal Procedure Act punishment of an accessory after the fact ``shall not exceed the
punishment imposed perpetrator - did not participate in crime sentenced more
leniently than perpetrator.
Reason for existence questionable

Is crime of accessory after fact necessary in our law. In our opinion, it is not. Accessory
after fact overlaps with defeating or obstructing course of justice. on in this guide. n the Appeal
Court has admitted this in the Gani

SUMMARY
(1) Definition of accomplice: see definition in previous study unit.
(2) The conduct of an accomplice amounts to a furthering of the crime by
somebody else. ``Furthering'' includes rendering assistance, giving advice,
encouraging, and so forth.
(3) An accomplice is guilty only if she furthers the crime unlawfully and
intentionally.
(4) A person cannot be an accomplice unless somebody else is a perpetrator.
(5) It is not possible to be an accomplice to murder. Persons who render
assistance in the commission of the murder are co-perpetrators.
(6) An accessory after the fact is not a participant, because she does not further the
crime.
(7) Definition of an accessory after the fact: see the definition above.
(8) In order to be liable as an accessory after the fact, a person must render
assistance intentionally to somebody who has already committed the crime as a
perpetrator or as an accomplice.
(9) The liability of an accessory after the fact, like that of an accomplice, is
accessory in character. This means that there can only be an accessory after the
fact if somebody else has committed the crime as perpetrator. It also means that
one cannot be an accessory after the fact to a crime committed by oneself. In Gani
the Appellate Division created an exception to the rule just mentioned.

1) Name and discuss the requirements for liability as an accomplice (as opposed to
a perpetrator).
(2) Discuss the accessory character of accomplice liability.
(3) Is it possible to be an accomplice to murder? Give reasons for your answer.
(4) Define an accessory after the fact.
(5) Discuss the requirements for liability as an accessory after the fact.
(6) Discuss the decision in Gani relating to the accessory character of the liability
of an accessory after the fact.

Attempt, conspiracy and incitement

We have dealt with completed crimes - a person is guilty of a due to his involvement in
commission of the crime before, during or after its commission. Person may be guilty of an
offence even though the crime that he wanted to commit, was never completed.
Examples”
. attempts (tries) to commit a crime, but does not succeed in completing it
. agrees (conspires) with another to commit a crime
. does something to influence (incites) another to commit a crime
Attempt, conspiracy and incitement are often referred to as ``inchoate'' or ``anticipatory'' crimes
- they deal with forms of punishable conduct which anticipate or precede the actual completion of
the crime.
Why does the law punish anticipatory forms of conduct due to preventive theory of punishment.

ATTEMPT see Criminal Law 283±294; Case Book 220±230.

Attempts to commit common-law crimes punishable in terms of common law. It was uncertain
whether attempts to commit a statutory crime were also punishable. This uncertainty Act 17 of
1956 which provides that attempt to commit a statutory offence is punishable.
3.2.2 Definition of rules relating to attempt

Definition of rules relating to attempt

(1) A person is guilty of attempting to commit a crime if, intending to commit that crime,
he unlawfully engages in conduct that is not merely preparatory but has reached at least
the commencement of the execution of the intended crime.
(2) A person is guilty of attempting to commit a crime even though the com
mission of the crime is impossible, if it would have been possible in the factual
circumstances which he believes exist or will exist at the relevant time
circumstances which he believes exist or will exist at the relevant time.

Four different types of attempt

Four different types of attempt - they correspond to four reasons why, despite having embarked
upon the commission of a crime, X has not completed the crime.
(1) Completed attempt - X does everything to commit the crime, but for some reason the crime
is not completed, for example
. where X fires at Y but misses
. where X fires at Y and strikes Y, but Y's life is saved by timely medical intervention.
(2) Interrupted attempt - X's actions have reached stage when they are no longer
preparatory, but are acts of execution, when they are interrupted, so that the crime cannot be
completed.
For example
. X, intending to commit arson, pours petrol onto a wooden floor but is apprehended by a
policeman just before he strikes a match.
. X, a prisoner intending to escape from prison, breaks and bends the bars in the window of his
cell but is apprehended by a warden before he can succeed in pushing his body through the
opening.
(3) Attempt to commit the impossible - it is impossible for X to commit or complete the crime,
either
. because the means he uses cannot bring about the desired result, X, intending to murder Y,
administers vinegar to him in the firm but mistaken belief that the vinegar will act as a poison and
kill Y, or
. because it is impossible to commit the crime in respect of the particular object of his actions, as
where X, intending to murder Y while he is asleep in bed, shoots him through the head, but Y has
in fact died of a heart attack an hour before.
(4) Voluntary withdrawal - X's actions have already reached the stage when they qualify as acts
of execution, when X, of his own accord, abandons his criminal plan of action. For example
. where, after putting poison into Y's porridge but before giving it to Y, X has second thoughts
and decides to throw the porridge away.
There is a boundary which X must cross before he is guilty of attempt. Formulating this boundary
is a problem in criminal law. It is necessary to differentiate between three different stages:

. In the first stage X's conduct amounts mere acts of preparation e.g. intending to kill his enemy
Y, he had merely bought a knife at a shop. If this act of preparation is the only act that can be
proved against him, he cannot be convicted of any crime.
. In the second stage his acts have proceeded his acts qualify as acts of execution or
consummation – e.g. after searching for Y, he had found him and had charged at him with the
knife in his hand, although a policeman had prevented him from stabbing Y. X is guilty of
attempted murder.
. In the third stage X had completed his act and all the requirements for liability have been
complied with – e.g. had stabbed and killed Y - case he is guilty of murder (the completed crime.
3.2.5.2 The rule applied in cases of interrupted attempt
Liability for attempt is determined by the courts with aid of an objective criterion, namely by
distinguishing between
. acts of preparation and
. acts of execution (or consummation)
If X merely prepared for the crime, there is no attempt. His acts were more than acts of
preparation and were in fact acts of execution/consummation, he is guilty of attempt - this
test (distinguish between acts of preparation and acts of consummation) may seem simple in
theory, in practice it is often very difficult to apply – due to vagueness of the concepts of
``preparation'' and execution/``consummation''. In applying it, a court has to distinguish
between ``the end of the beginning and the beginning of the end''. Each factual situation is
different and the test as applied to one set of facts may be no criterion in a different factual
situation. In Katz 1959 it was stated that ``a value judgment of a practical nature is to be brought
to bear upon each set of facts as it arises for consideration''.
3.2.5.3 Examples of the application of rule
The most important cases in which the courts have enunciated this test (namely to
differentiate between acts of preparation and acts of consummation) are Sharpe
1903 and Schoombie 1945. In Schoombie X had gone to a shop in early hours of morning and
had poured petrol around and underneath the door, so that the petrol flowed into the shop. He
placed a tin of inflammable material against the door, but his whole scheme was thwarted when,
at that moment, a policeman appeared. The Appeal Court confirmed his conviction of
attempted arson, and in the judgment authoritatively confirmed that the test to be applied in
these cases was to distinguish between acts of preparation and acts of consummation.
S The following are some further examples of the application of the test:
(1) Mere acts of preparation (X cannot be convicted of attempt)
. X, intending to murder Y, merely prepares the poison which he means to
use to poison Y later, when he is caught.
. X, intending to buy goods which he knows to be stolen goods (conduct which would render
him guilty of the crime of possessing stolen goods) merely inspects the goods which the real
burglar has stolen, when he is apprehended- Croucamp 1949.
(2) Act of consummation/execution (X can be convicted of attempt)
. X, trying to break into a house, inserts a key into a keyhole when he is
apprehended Mtetwa 1930.
. X, trying to rape Y, has as yet only assaulted her when he is apprehended
B 1958; W 1976.
. X, trying to steal from a woman's handbag, has opened the handbag hoping that its contents
would fall out, when he is apprehended.
Attempt to commit the impossible (Criminal Law 289±290; Case Book 225±228)
3.2.6.1 The subjective and objective approaches
Before 1956, there was no certainty whether this type of attempt was punishable or not. It was
uncertain whether an objective or subjective test should be applied.
In an objective test – the fact are considered without taking into account what X had in mind. If
the objective test is followed X would never be guilty of attempt because what he is trying to do
in cases falling within this category cannot physically (ie objectively) result in the commission of
an offence.
E.g. where X tries to sell uncut diamonds to Y. (It is a statutory offence to sell uncut diamonds.)
He offers a stone to Y which he (X) believes to be an uncut diamond, whereas it is in reality
merely a piece of worthless glass. If objective test is used,
X cannot be convicted of an attempt to sell an uncut diamond because objectively the sale or
offering for sale of a piece of glass is something entirely different from the sale or offering for
sale of an uncut diamond.
In a subjective test, X can be convicted of attempt, because according to this test what is decisive
is X's subjective state of mind - his belief that what he was doing was selling an uncut diamond
and not a piece of glass.

3.2.6.2 The decision in Davies

In 1956 the uncertainty whether the test was objective or subjective was settled by the Appeal
Court in Davies 1956. The court had to decide whether X was guilty of an attempt to commit the
former crime of abortion if the foetus which he had caused to be aborted was already dead,
although he had believed the foetus to be still alive. (The crime of abortion could – could be
committed only in respect of a live foetus.) The Appeal Court adopted the subjective test and held
that X was guilty of attempt. It held that X would have been guilty of attempt even if the
woman had not been pregnant, provided, of course, that X had believed that she was
pregnant and had
performed some act intending to bring about an abortion. The court further held that it is
immaterial whether the impossibility of achieving the desired end was attributable to the
wrong means employed by X, or to the fact that the object in respect of which the act is
committed is of such a nature that the crime can never be committed in respect of it. In cases of
attempt to commit the impossible the test according to this decision is therefore subjective,
and not objective. What the law seeks to punish in cases of this nature is not any harm which
might have been caused by X's conduct (because such harm is non-existent), but X's ``evil state
of mind'' which manifested itself in outward conduct which was not merely preparatory,
but amounted to an act of execution. Note that the rule that, in order to be convicted of attempt,
X's act must be an act of consummation, applies also to this form of attempt.

Read Davies in the case book.

Rape can only be committed in respect of a human being who is alive. In W 1976. X had sexual
intercourse with what he believed to be a live woman, whereas the woman was in fact already
dead. X also believed that the woman did not consent to the intercourse. The court held that
he could be convicted of attempted rape. This is an example of impossible attempt, where the
impossibility resided in the object in respect of which the act was performed.

3.2.6.3 Committing a ``putative crime'' is not a punishable attempt

X was mistaken about the facts. (In Davies X wrongly believed that the foetus was still alive, and
in W he wrongly believed that the woman was still alive. These are not mistakes concerning the
contents of the law, but mistakes concerning the presence of
certain material facts.) The situation in which this type of mistake is made should
be contrasted with the situation in which X is mistaken not about the relevant
facts, but about the relevant legal provisions.

A ``putative crime'' is a crime which does not actually exist (because there is no rule of law
stating that that particular type of conduct constitutes a crime), but which X thinks does exist.
The crime only ``exists'' in X's mind, that is in what he thinks. A ``putative
crime'' can never be punishable.

ACTIVITY 1
X thinks that to commit adultery is a crime. In reality it is not criminal. (It
may only result in certain civil-law or private-law consequences, in that it
may give the spouse of the other adulterous party a ground for suing for
divorce.) Believing adultery to be a crime, he commits adultery. Does X
commit any crime?
FEEDBACK
X does not commit any crime. More particularly, he cannot be convicted of an
attempt to commit adultery. The impossibility ``lies in the law, not in the facts''.

ACTIVITY 2
X is charged with theft. The crime of theft cannot be committed in respect of res derelictae (ie
property abandoned by their owners with the intention of ridding themselves of it). X, a tramp,
sees an old mattress lying on the pavement. The mattress was left by its owner next to his garbage
container in the hope that the garbage removers would remove it. X appropriates the mattress for
himself. X knows that the owner had meant to get rid of the mattress. However, X erroneously
believes that the crime of theft is defined by law in such a way that it can be committed even in
respect of property that has been abandoned by its owner (a res derelicta). Does X commit
attempted theft?
FEEDBACK
Since the mattress was in fact a res derelicta, it was impossible for X to steal it. The
set of facts therefore describes a situation of an attempt to commit the impossible.
X was not mistaken about any facts, but only about the contents of the law. This is
a case of a putative crime, that is a crime that exists only in X's mind. The ``rule in
Davies'' (ie the rule that impossible attempts are punishable) does not apply to
putative crimes. Therefore X cannot be convicted of attempted theft.
ACTIVITY 3
X appropriates the mattress described in the previous activity. He knows
very well what the relevant provisions of the law are (ie that theft cannot be
committed in respect of a res derelicta). He believes, however, that the
mattress merely fell from a truck when the owner was moving his furniture,
and that the owner never meant to get rid of it. In reality, the owner did in
fact mean to get rid of it. Does X commit attempted theft?
FEEDBACK
Since the mattress was in fact a res derelicta, it was impossible for X to steal it. The
set of facts therefore describes a situation of an attempt to commit the impossible.
X was not mistaken about the contents of the relevant legal provisions, but only
about the relevant facts. We are therefore not dealing with a putative crime. The
``rule in Davies'' (ie the rule that impossible attempts are punishable) is therefore
applicable, and X is guilty of attempted theft.

Voluntary withdrawal (Criminal Law 292±294; Case Book 220±222)

There is no punishable attempt if X voluntarily abandons his criminal plan of action at a stage
when his actions can only be described as preparations before commencement
Or execution. The question is simply whether a withdrawal after this stage (the
commencement of the consummation stage), but before completion of the crime, constitutes
a defence to a charge of attempt. The courts have answered this question negatively.
. In Hlatwayo 1933 - X was a servant who put caustic soda into her employers' porridge,
intending to poison them. She noticed that caustic soda discoloured porridge, and threw the
mixture away. She was convicted of attempted murder. The court held that her acts had already
reached the stage of consummation, and that her change of heart did not exclude her liability for
attempt.
. In B 1958 the Appeal Court accepted that it was held in Hlatwayo that voluntary withdrawal
was no defence, and that that decision was correct.
. In Du Plessis 1981 the Appeal Court stated: ``If that change of mind occurred before the
commencement of the consummation, then the person concerned cannot be found guilty of an
attempt, but if it occurred after the commencement, then there is an attempt and it does not avail
the person concerned to say that he changed his mind and desisted from his purpose.'

Intention
A person can be found guilty of attempt only if he had the intention to commit the
particular crime towards which he strove. Negligent attempt is impossible- there is no such thing
as an attempt to commit culpable homicide Ntanzi 1981. because the form of culpability required
for culpable homicide is not intention, but negligence.

CONSPIRACY (Criminal Law 294±297)

(1) In South Africa conspiracy to commit a crime is not a common-law crime, but
a statutory crime. Section 18 (2)(a) of the Riotous Assemblies Act 17 of 1956
criminalises conspiracies to commit crimes - Any person who ... conspires with any other person
to aid or procure the commission of or to commit ... any offence ... shall be guilty of an offence ...
(2) This provision does not differentiate between a successful conspiracy (ie one followed by
actual commission of crime) and one not followed by any further steps towards commission of
crime - theoretically it is possible to charge and convict people of contravention of this provision
even though crime envisaged was indeed subsequently committed. Our courts have quite
correctly indicated that this provision should be utilised only if there is no proof that the
envisaged crime was in fact committed (Milne
and Erleigh and Khoza 1973. .
(3) Nobody is ever charged with or convicted of simply ``conspiracy''. The charge and conviction
must be one of conspiracy to commit a certain crime (such as murder or assault).
(4) The act in the crime of conspiracy consists in the entering into an agreement to commit a
crime or crimes Moumbaris 1974.
(5) While the parties are still negotiating with one another there is not yet a
conspiracy.
(6) The crime is completed moment parties have come to an agreement, and it is not
necessary for state to prove commission of any further acts in execution of this conspiracy
Alexander 1965.
(7) The conspiracy need not be express; it may also be tacit B 1956.
(8) The parties need not agree about the exact manner in which the crime is to be
committed Adams 1959.
(9) The mere fact that X and Y both have the same intention does not mean that there is a
conspiracy between them. There must be a definite agreement between at least two persons to
commit a crime Alexander 1965,Cooper 1976, ``there must be a meeting of the minds''. Thus
if X breaks into a house and Y, completely unaware of X's existence and therefore of his plans,
breaks into same house on same occasion, neither of them is guilty of conspiracy, even though
they both have same intention.
(10) Conspirators need not be in direct communication with each other. If two or more persons
unite in an organisation with declared purpose of committing a crime or crimes, there is a
conspiracy. Any person who joins such an organisation while aware of its unlawful aims, or
remains a member after becoming aware of them, signifies by his conduct his agreement with the
organisation's aims, thereby committing conspiracy Alexander and Moumbaris.
(11) The intention requirement can be subdivided into two components, namely
(a) the intention to conspire
(b) the intention to commit a crime or to further its commission
(12) there can be a conspiracy only if more than one party is involved. One cannot conspire
with oneself to commit a crime. This rule is subject to following qualification: A
party to an agreement to commit a crime in whose interest, or for the protection of whom the
relevant crime has been created, ought not to be convicted of conspiracy to commit the crime
concerned e.g. sexual intercourse (even with consent) between two persons where one (Y) is
below the age of sixteen years. It is submitted that if both agree to have sexual intercourse, Y
cannot be convicted of conspiracy, because the crime created in section 15 has been created for
the protection of somebody like Y.
(13) As far as the punishment for conspiracy is concerned, the section which
criminalises conspiracy (ie s 18(2)(a) of Act 17 of 1956) provides that somebody convicted of
conspiracy is punishable with the same punishment as the punishment prescribed for the
commission of the actual crime envisaged - this provision must be interpreted as only laying
down the maximum punishment which may be imposed for the conspiracy. In practice
somebody convicted of conspiracy to commit a crime receives a punishment that is less severe
than the punishment which would have been imposed had the actual crime been committed. The
reason for this is that conspiracy is only a preparatory step toward the actual commision of
the (main) crime. In conspiracy, the harm which would have been occasioned by the commission
of the actual completed crime has not materialised.

INCITEMENT
(Criminal Law 298±305; Case Book 230±234)

(1) Incitement to commit a crime is not a common-law crime, but a statutory crime - Riotous
Assemblies Act 17 of 1956 criminalises incitement to commit crimes. The relevant parts of this
section read as follows:
Any person who ... incites, instigates, commands or procures any other
person to commit any offence ... shall be guilty of an offence ...
(2) X ought to be charged with and convicted of incitement only if there is no proof that the
crime to which he incited Y has indeed been committed. If the main crime has indeed been
committed, X is a co-perpetrator or accomplice in respect of such crime (Khoza 1973.
(3) Nobody is ever charged with or convicted simply of ``incitement'' and no more. The charge
and conviction must be one of incitement to commit a certain crime (such as murder or assault).
(4) The purpose of the prohibition of incitement to commit a crime is to discourage people
from seeking to influence others to commit crimes (Zeelie 1952.
(5) In some older decisions the view was expressed that X can be guilty of incitement only if the
incitement contains an element of persuasion - there must be an initial unwillingness on the part
of Y which is overcome by argument, persuasion or coercion C 1958.
In Nkosiyana 1966 the Appellate Division held that no such element of persuasion is
required.

Read the following decision in the Case Book: Nkosiyana 1966 (4) SA 655 (A)

(6) In Nkosiyana supra X had suggested to Y that they murder Mr. Kaiser Matanzima of the
Transkei. Y was in fact a policeman who suspected X of trying to murder Mr. Matanzima and
wanted to trap X. X was unaware of the fact that Y was a policeman. X was charged with
incitement to commit murder. The Appeal Court held that the fact that Y was a policeman who at
no time was susceptible to persuasion did not stand in the
way of a conviction for incitement. Incitement can therefore be committed even in respect of a
police trap in which the police officer involved has no intention of ever committing the
actual crime, but who simply wants to trap the inciter.
(7) In Nkosiyana supra an inciter was described as somebody ``who reaches out
and seeks to influence the mind of another to the commission of a crime''. Whether the other
person (Y) is capable of being persuaded is immaterial. Neither do the means X uses to
influence or try to influence Y carry any weight. The emphasis is therefore on X's conduct, and
not that of Y.
(8) The incitement may take place either explicitly of implicitly.
(9) If the incitement does not come to Y's knowledge, X cannot be convicted of incitement but
may be guilty of attempted incitement, as in the case where X writes an inflammatory letter to Y
but the letter is intercepted before it reaches Y.
(10) As far as the punishment for incitement is concerned, the section which
criminalises incitement (ie s 18(2)(b) of Act 17 of 1956) provides that
somebody convicted of incitement is punishable with the same punishment
as the punishment prescribed for the commission of the actual crime envisaged. It only lays
down the maximum punishment which may be imposed for the incitement. In practice
somebody convicted of incitement to commit a crime normally receives a punishment that is less
severe than the punishment which would be imposed had the actual crime been committed.
The reason for this is that incitement is only a preparatory step towards the actual
commission of the (main) crime. In the case of incitement, the harm which would be occasioned
by the commission of the actual completed crime has not yet materialised.

SUMMARY
ATTEMPT
(1) Definition of the rules relating to attempt Ð see definition above.
(2) There are four forms of attempt, namely completed attempt, interrupted
attempt, attempt to commit the impossible and voluntary withdrawal.
(3) In cases of completed attempt X has done everything he set out to do in
order to commit the crime, but the crime is not completed, for example where
X fires at Y but misses.
(4) In interrupted attempt X's actions are interrupted so that the crime cannot be
completed. In these cases X is guilty provided his actions are no longer mere
acts of preparation but in fact constitute acts of consummation.
(5) In cases of attempt to commit the impossible it is impossible for X to
complete the crime, because either the means he uses cannot bring about the
desired result or the object in respect of which the act is committed is
factually impossible to attain.
(6) In Davies 1956 (3) SA 52 (A) it was held that a subjective approach towards
attempts to commit the impossible should be followed and that a person is
guilty of attempted abortion if he aborts a dead foetus in circumstances in
which he believes that it is still alive, even though an abortion can only be
committed in respect of a live foetus.
(7) There is an exception to the general rule laid down in Davies: A person
cannot be guilty of an attempt to commit the impossible where such person
is, as a result of a mistake of law, under the erroneous impression that the
type of conduct he is engaging in is declared criminal by the law whereas in
fact it is not criminal. In legal terminology such a situation is known as a
putative crime.
(8) In cases of voluntary withdrawal X, of his own accord, abandons his criminal
plan of action. According to our courts such withdrawal is no defence to a
charge of attempt if it occurs after the commencement of the consummation.
(9) Intention is always a requirement for a conviction of attempt.
CONSPIRACY
(10) Conspiracy to commit a crime is punishable in terms of section 18(2) of Act
17 of 1956.

(11) The act of conspiracy consists in entering into an agreement to commit a

crime.
(12) The crime is completed the moment the parties have come to an agreement
and it is not necessary for the state to prove the commission of any further
acts in execution of the conspiracy.
(13) The intention requirement consists in the intention to conspire as well as the
intention to commit a crime or to further its commission.
INCITEMENT
(14) Incitement to commit a crime is punishable in terms of section 18(2) of Act
17 of 1956.
(15) X ought to be charged with and convicted of incitement only if there is no
proof that the crime to which he incited another has indeed been committed.
(16) A person may be convicted of incitement even though there is no proof that
he had persuaded the incitee to commit the crime.

ATTEMPT
(1) Define the most important rules relating to the crime of attempt.
(2) Name the four forms of criminal attempt and explain briefly what each entails.
(3) Discuss, with reference to examples and decisions, the difference drawn in the case of
an interrupted attempt between acts of preparation and acts of consummation.
(4) Explain the rules relating to an attempt to commit the impossible.
(5) What is meant by a ``putative crime''? Explain.
(6) Is voluntary withdrawal a defence to a charge of attempt? Explain.
CONSPIRACY
(7) Discuss the crime of conspiracy.
INCITEMENT
(8) Discuss the crime of incitement

SPECIFIC CRIMES

Crimes against the state and the administration of justice

Crimes against the state

We shall divide the specific crimes into four broad categories, namely crimes against the
state and the administration of justice crimes against the community, crimes against the
person and crimes against property.

CRIMES AGAINST THE STATE

4.2.1 Background
The most important common-law crimes against - state are high treason, sedition and public
violence. Statutory crimes against - created by the Internal Security Act are terrorism and
sabotage. Our discussion is limited to the crime of public violence.
4.2.2 Public violence (Criminal Law 321±323)

4.2.2.1 Definition
Public violence 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.
4.2.2.2 Elements of the crime
(1) an act
(2) performed by a number of persons
(3) which assumes serious proportions
(4) which is unlawful, and
(5) intentional, and more specifically, includes an intention to disturb the public
peace and order by violent means, or to infringe the rights of another.

4.2.2.3 The object or interest protected

Interest protected is public peace and order Salie 1938. Overlapping may occur between
this interest and the interests protected by the other crimes against the state.
4.2.2.4 Joint action
Cannot be committed by an individual acting alone - public peace and order must be
disturbed by a number of persons acting in concert. The number of persons required will
depend on circumstances of the case, taking into account factors like seriousness of –
duration of disturbance threat - in Terblance 1938 112 five persons were considered
sufficient. Six, eight and 10 persons were considered insufficient in other cases Mcunu
1938, Salie and Nxumalo 1960.

Participants in the disturbance of the peace must act in concert - with a common purpose
Wilkens 1941, Ndaba 1942 and Kashion 1963. If proved that accused knowingly participated in
uprising with aim of threatening the public peace and order prosecution need not prove precisely
what acts were committed by which of the participants Wilkens and Lekoatla 1946 and
Mashotonga 1962.
The crime can be committed both in a public place and on private property Cele and
Segopotsi. Participants need not be armed.
The act must be accompanied by violence or a threat of violence Wilens and Cele. The crime
is committed even if there is no actual disturbance of the public peace and order, or no actual
infringement of the rights of another. It is sufficient if action is aimed at disturbance of peace or
infringement of rights of another Mvelase 1938 and Segopotsi.

4.2.2.5 Examples of conduct

Examples of behaviour amounting to public violence:
. faction fights Ngubane, 1947 and Xybele 1958
. joint resistance to police action by a group of persons Samaai 1986 and Segopotsi. rioting
Dingiswayo 1985
. violent coercion of other workers by a group of strikers Cele
. disrupting and taking over a meeting by a gang Claassens 1959

4.2.2.6 Serious proportions

The crime is only committed if (in addition to the other requirements) action group assumes
serious proportions. Safety of persons not involved in disturbance is
threatened only if disturbance is serious Tshayitsheni 1918. This requirement is vaguebut is
essential to distinguish public violence from cases of rowdy behaviour and family feuds which do
not threaten public peace and order.
In order to classify behaviour as serious depends on:
(1) the number of persons involved
(2) the time
(3) the place
(4) the duration of the disturbance
(5) the cause of the disturbance
(6) the status of the participants
(7) whether or not they are armed
(8) whether persons or property are injured or damaged
(9) the way in which the disturbance is settled (if it is settled)
It was decided in Mei 1982 that mere placing of stones in a road at a spot where a group of
people assemble, does not amount to violence - does not constitute public violence – mere fact
that an individual threw a stone at a police vehicle is not sufficient to convict that person of
public violence.
4.2.2.7 Unlawfulness
Both actions of group and the actions of the individual accused must have been unlawful.
Justified on the ground of compulsion Samuel 1960 and behaviour of group may be justified by
private defence, (Mathlala 1951.
4.2.2.8 Intent
Individual accused must have been aware of nature and purpose of actions of group, and her
participation in the activities of the group must be intentional Aaron 1962. Common purpose of
disturbing the public peace and order must exist between the members of the group.

ACTIVITY
A political party holds a meeting in a hall. The leader of the party, Y, opposes abortion, is in
favour of the death sentence and has, on numerous occasions, made derogatory remarks about gay
people. A large number of gay-rights activists decide to break up his meeting. Almost 150
members of this group are gathered in front of the hall on the evening the meeting is held. As
people arrive for the meeting, the activists obstruct the entrance of the hall. Y (the leader of the
political party) calls the police on his cell phone.
The police arrive with dogs and teargas. They request the protesters to disperse peacefully. One
woman shouts that the police will have to remove her forcefully. The others all agree with her.
Because the crowd refuses to disperse, the police throw teargas and the protesters run away. The
protesters are charged with public violence. Their legal representative argues that the actions of
the protesters were not serious enough to justify a conviction of the crime. You are the state
prosecutor. What should your response be to this reasoning?

FEEDBACK
You will rely on the Segopotsi case, arguing that actual disturbance of the peace is not required
for a conviction of this crime. All that is required is that the actions of protesters be intended to
disturb the public peace and order. You will argue there is ample evidence before the court in this
respect. You could also argue that, because the entrance of the hall was obstructed by the
protesters, and teargas was used to disperse the crowd, the actions were serious enough to justify
a conviction of public violence (Salie and Ngubane).

SUMMARY
(1) Definition of public violence see definition above.
(2) The interest protected in public violence is the public peace and order.
(3) Public violence can only be committed by a number of people acting in
concert - a number of people acting with a common purpose.
(4) The act must be accompanied by violence or threats of violence.
(5) The action of the group must assume serious proportions. Whether this is
the case, will depend upon a number of factors or combination of factors.
Summary
(1) Can public violence be committed by a single person? Substantiate your answer.
(2) The following statements refer to public violence. Indicate whether these statements
are correct or incorrect:
(a) The participants in public violence must act in concert, in other words, with a
common purpose.
(b) Public violence can only be committed in a public place.
(c) Once it has been established that the accused knowingly participated in a disturbance
with the aim of threatening the public peace and order, the prosecution need not prove
precisely which acts were committed by which of the participants.
(d) Public violence can only be committed if there is an actual disturbance of the public
peace and order or an actual infringement of the rights of another.
(3) Explain what is meant by the requirement for public violence that the acts of the
group must assume serious proportions. (List is above).
Study Unit 5 Crimes against the administration of justice

PERJURY AT COMMON LAW (Criminal Law 343±346)

>>>start5.1.1 Definition
Perjury at common law consists in the unlawful, intentional making of a false
declaration under oath (or in a form allowed by law to be substituted for an oath)
in the course of a legal proceeding.
5.1.2 Elements of the crime
The elements of this crime are
(1) the making of a declaration
(2) which is false
(3) under oath or in a form equivalent to an oath
(4) in the course of a legal proceeding
(5) in an unlawful and
(6) intentional manner.

False declaration

This requirement comprises the following:

(1) The declaration must be objectively false. In English law only subjective falsity is required.
Subjective falsity means that the crime is committed when someone speaks the truth, while
believing that he is telling a lie. Our courts, however, have never yet decided that the crime can
be committed in this manner. The Criminal Procedure Act assumes that an objectively false
declaration is required.
(2) The declaration may be oral or in writing (in an affidavit).
(3) The falsehood may be made either expressly or impliedly - if impliedly, the prosecution
relies on an innuendo – in Vallabh (1911) e.g it was decided that the words of a witness ``I have
already stated what I heard'' implied that the witness had heard nothing more. If prosecution relies
on an innuendo, the implication that it relies on must be a necessary implication and it must be
based on evidence led at the trial itself
and not on extra-judicial declarations (Matakane 1948.

Under oath, or in a form substituted for oath

The declaration must be under oath, or in one of the forms allowed to substituted for an
oath - affirmation to tell the truth, or warning by presiding official to the witness to tell
There are three ways a witness can undertake to speak the truth:
(1) The most common method is taking an oath (ie swearing) that he will speak
the truth Criminal Procedure Act.
(2) A person may declare that he solemnly confirms that his evidence will be the
truth - Criminal Procedure Act - when a witness objects to taking the oath (perhaps on religious
grounds) or indicates that he does not regard the oath as binding on his conscience.
(3) Young children are merely warned (usually after a ``friendly little sermon''
by the magistrate or judge) to speak the truth – Criminal Procedure Act.

It is important to bear in mind that a witness who intentionally makes a false statement
commits perjury even if his statement is not under oath but merely made after an
affirmation to speak the truth or after being warned to speak the truth.
Only a declaration under oath or its equivalent can form the basis of perjury - the crime cannot be
committed in the course of argument to the court by a legal representative. The person who
administers the oath or its equivalent (egg the magistrate) must have the authority to do so –
McKay and Hossain 1913.
In the course of a legal proceeding
The crime is only committed if the false declaration is made in the course of a legal proceeding -
extra-judicial false sworn statements are also punishable, but not as common-law perjury -
they can be punishable in terms of s 9 of Act 16 of 1963 - An extra-judicial statement is a
statement made outside the court concerning a matter which has nothing to do with the dispute
decided in court.
The legal proceeding can be either a criminal or a civil case. False sworn statements made
before an administrative tribunal do not constitute the crime. It was held that such a
declaration at a meeting of creditors in terms of Insolvency Act cannot amount to perjury
Carse 1967. In Beukman 1950 it was decided that perjury can be committed by the making of
a declaration outside the court or before a case has begun, provided that
. such declaration be permissible as evidence at the subsequent trial
. the maker of the declaration foresees the possibility that it may be used
subsequently in a trial
According to this test perjury can be committed by making a false affidavit for purposes of a
civil motion proceeding (which is mostly in writing) (Du Toit 1950) (A)), but not by making a
declaration in which a false criminal charge is lodged, or by making extra-judicial sworn
statements to police in course of their investigation into a crime Beukman. In the Beukman case it
was decided that extra-judicial statements made to a police official are not normally used in the
subsequent trial as evidence - consequently are not declarations made in the course of a legal
proceeding. The fact that the false declaration is made in the course of a case, the judgment of
which is later set aside on appeal, is no defence. The position is the same if the warrant for the
arrest of the accused was invalid (Vallabh (1911).

Unlawfulness
If shortly after making a false statement – and when cross examined the witness acknowledges
that statement was false and then tells the truth, is no excuse (Baxter 1929). Fact that the false
declaration was made by X in a vain attempt to raise a defence is no excuse. This happens in our
courts daily - for practical reasons not every accused whose evidence is rejected as false is
afterwards charged with perjury (Malianga 1962).
5.1.7 Intent
X must know, or at least foresee the possibility, that his declaration is false. Mere
negligence or carelessness is not sufficient (Mokwena 1984).

STATUTORY PERJURY
You must study this crime in Criminal Law 347±349 on your own. This crime is set out in
section 319(3) of Act 56 of 1955.
For examination purposes you must be able
. to describe the contents of this section briefly
. to state the reasons why the legislature created this crime
. to state what the state has to prove when prosecuting a person for
contravention of this subsection
. to state the points of difference between common-law perjury and this crime

The mere fact that somebody made 2 conflicting statements under two different oaths
does not mean one of the statements is false. He can only be convicted id state proves one
of the statements is false and he knew it was false and intended to lie. This was difficult
to prove. A new statutory provision w to as created to overcome this – the crime is
now known as statutory perjury.

What the state had to prove.

The state need only prove that X made conflicting statements under oath and the
statements conflict with one another. The state need not prove which statement is false.
Whether or not statements conflict is a question of fact see Ramdas case.

Onus is placed on X to prove absence of intention to lie – that she believed that what she
was saying was the truth. It is important that X sticks to the facts. Cross- examination
cannot twist the facts but can twist my logic. Praise God.

Difference between common-law perjury and this crime.

Common law perjury only one statement is required and statutory two.
Common law perjury can be committed in course of legal proceedings only and in statutory
perjury statements need not be made in the course of legal proceedings.

DEFEATING OR OBSTRUCTING THE COURSE OF JUSTICE

Study the discussion of this crime in Criminal Law 338±343 on your own.
The elements of the crime are
(1) any act which
(2) defeats or obstructs the course of justice
(3) in an unlawful, and
(4) intentional manner
Note
. the different names given to this crime
. the difference between ``defeating'' and ``obstructing'' (the course of justice)
. the various and interesting ways in which this crime can be committed (par 6
on pp 340±341)

Ways in which the crime can be committed:

Attempting/inducing witness to give false evidence I court or refuse to give evidence.
Give false information to police.
Abscond so as not to give evidence in trial.
Soliciting a complainant by unlawful means to withdraw a charge.
Soliciting a prosecutor by unlawful means not to prosecute.
Improperly influencing a party to a civil case.
Unlawfully releasing a prisoner
Tampering with evidence, judicial officials, and witnesses.
. the rule that the crime may be committed even though there is no pending case
(par 7 on p 341) – not necessary that a court case be envisaged by the police., false report to
police is a crime of this nature.
. the intention requirement
. the meaning of the expression ``administration of justice''
. the fact that a person can be charged with an attempt to commit this crime, and
that charges of attempt are in fact more common than charges of having
committed the completed crime.
CONTEMPT OF COURT (Criminal Law 325±338)
5.4.1 Definition
Contempt of court consists in the unlawful and intentional
(1) violation of the dignity, repute or authority of a judicial body or a judicial
officer in his judicial capacity, or
(2) the publication of information or comment concerning a pending judicial
proceeding, which has the tendency to influence the outcome of the
proceeding or to interfere with the administration of justice in that proceeding

Elements of the crime

The elements of the crime are the following:
(1) (a) the violation of the dignity, etcetera of the judicial body or the judicial
officer, or
(b) the publication of information or commentary concerning a pending
judicial proceeding, etcetera
(2) in an unlawful and
(3) intentional manner

Unusual characteristics
The crime manifests the following unusual characteristics:
(1) Acts by which crime is committed be divided into various groups - which have very
distinctive requirements – e.g. requirement that a case must be sub iudice (ie the legal process
has not yet been completed) in the case of publication of information which is potentially
prejudicial to the just trial of a case). The crime can be subdivided to a certain
into a number of ``sub-crimes'' each of which has certain distinctive requirements.
(2) Some cases of contempt of court are not treated as criminal cases but as civil cases in the civil
courts. It has been held that these cases can also come before the courts as criminal cases at the
same time, if the Attorney-General chooses to bring the case before a criminal court.
(3) Some cases of contempt of court are heard according to an unusually drastic
procedure - (contempt in facie curiae).

Reasons for the existence of the crime

Contempt of court is punished not to protect the dignity of an individual judicial officer, but to
protect the administration of justice. The violation of the dignity and repute of a judicial officer
undermines respect of public for court and administration of justice and, the whole legal order
(Tromp) Van Niekerk 1972.
Contempt committed by the publication of information or comments on a pending case, the
reason for the crime is that the court should come to a decision only on the grounds of
permissible evidence before it, and ought not to be influenced by the disclosure of facts or
comments from outside, such as those in the press.

Acts
A distinction is drawn between contempt in facie curiae and contempt ex facie
curiae.
In facie curiae - ``in the face of the court'' in presence of judicial officer during a session of the
court.
Contempt ex facie curiae - actions or remarks out of court, and can take a variety of forms, such
as
. scandalising the court by the publication of allegations which bring judges or magistrates, the
administration of justice through the courts generally into contempt, or unjustly to cast suspicion
on the administration of justice (S v Mamabolo 2001).
. the failure to comply with a court order.
Examples of a few other circumstances in which the crime can be committed are
. where a person falsely pretends to be an officer of the court, like an advocate, attorney or
deputy-sheriff (Incorporated Law Society v Wessels 1927).
. where someone intentionally obstructs an officer of the court, like a messenger of the court, in
the execution of his duties (Phelan 1877.)
. where someone bribes or attempts to bribe a judicial officer, legal representative or witness
(Attorney-General v Crockett 1911).
. where a witness who has been summoned deliberately omits to appear at the
trial (Keyser 1951).

Unlawfulness
(1) Statements by members of certain bodies such as the Legislative Assembly, when present in
the Assembly, are privileged and cannot amount to contempt.
(2) Very important is the rule that fair comment on the outcome of a case or on the
administration of justice does not constitute contempt of court. Public debate on administration
of justice is desirable to ensure that the law and administration of justice enjoy the respect of the
population.
Famous words of Lord Atkin in Armbard v A-G of Trinidad (1936) been quoted with approval by
our own courts (eg Van Niekerk 1970)``Justice is not a cloistered virtue: she must be allowed to
suffer the scrutiny and respectful, even though outspoken, comments of ordinary men''.
There is nothing wrong with a newspaper complaining certain sentences are too light or
too heavy, provided the comments are made bona fide, in reasonable terms and in the
interests of the proper administration of justice.

Intent
Intention is essential element of the crime (Van Niekerk) except in cases where editor of a
newspaper is charged with this crime on ground of the publication in his newspaper of
information concerning a pending case, which tends to influence the outcome of the case.
Culpability in the form of negligence will be sufficient to establish contempt of court in such
circumstances.
Remarks in a newspaper article must be read in context in order to establish the presence of
intent (Metcalf 1944). To request a judicial officer, bona fide and in courteous language, to
withdraw from the case on account of his personal knowledge of the event (Luyt 1927) does not
constitute contempt. If X's apparently offensive action is attributable to forgetfulness, ignorance,
absent-mindedness or negligence, intent is lacking (De Bruyn 1939).

Administration of justice by the courts

The language complained of must be directed at a judicial officer in his judicial capacity or at the
administration of justice by the courts. Criticism of the performance of a mere administrative
function, like the action of the police, or criticism of alleged unreasonableness in Acts of
parliament, is not contempt of court (Sacks 1932 Dhlamini 1958). In Nyikala 1931 X said to a
magistrate: ``Because I am a native I am always considered guilty''. On closer investigation it
appeared, however, that his words referred to the methods of the police. He was found not guilty
of contempt. Encouraging the public to sign a petition for the reprieve of a person who has
already been sentenced is not contempt (Van Staden 1973). In Tromp 1966 the court declared that
mere criticism of the prosecution in a criminal case is not contempt of court either.
Some forms of the crime
5.4.9.1 Contempt in facie curiae
Examples of such contempt ``in the open court'' are
. shouting at witnesses during cross-examination (Benson 1914)
. a legal representative's conducting a case under the influence of alcohol (Duffey
v Munnik 1957)
. continual changing of one's seat and talking loudly in court (Lekwati 1960)
. grabbing and tearing a court document to pieces (Mongwe 1974)

In Nyalanbisa 1993 the court held that merely falling asleep in court does not amount to
contempt in facie curiae - it amounted to ``a trivial breach of court etiquette''.

There must be intent to violate the dignity of the court (Zungo 1966). In Khupelo 1961 X loudly
sang a religious song while she was leaving the court room after conclusion of her trial. Her
conviction for contempt of court was set aside on review, because it appeared that she had
behaved in such a way out of joy that she had been acquitted, and not to
insult the magistrate or the court.
In cases of contempt in facie curiae the court has the power to convict the wrongdoer summarily
and sentence him. This power is undoubtedly necessary to place the court in a position to
maintain its dignity, but our courts have frequently stressed that this drastic procedure must be
applied with great circumspection
(Ashworth 1934 Ngcemu 1964). The judicial officer in these cases is complainant, witness and
judge all at the same time, the accused is normally undefended and the trial usually takes place in
an emotionally charged atmosphere. Contempt of a lesser nature can best be ignored
(Mngomezulu 1972), and a request to a wrongdoer to offer his apologies to the court, followed by
such an apology, can often maintain the dignity of the court without the person being sentenced
for contempt (Tobias).
In Lavhenga 1996 the court held that punishing accused for contempt of court in facie curiae is
not unconstitutional. The rules relating to this form of the crime infringe upon certain rights of the
accused (such as his right to a fair trial and right to legal representation) such infringement is,
according to the court, justified.
5.4.9.2 Commentary on pending cases

a Discussion of this form of the crime

The crime is committed by publishing information or commentary calculated to influence the
outcome of a case that is still sub iudice (the matter is still under consideration by the court). The
press is fully entitled to publish evidence delivered in course of a trial (or portions of it). The
press may not, while the case is still in progress, publish information relating to merits of a case
which did not form part of the evidence in court. A journalist may not publish information or
opinions concerning the case which he heard outside the court during an adjournment of the
court for tea. Neither may he give his own opinion regarding the guilt or otherwise of the
accused, or draw his own inferences from the evidence before the case has been concluded. The
underlying reason for prohibiting the publication of such information is to avoid so-called ``trial
by newspaper''. The judge, assessors or magistrate should not be influenced by
information or commentary emanating from sources outside the court. A case is sub iudice from
the moment that it commences (with the issue of a summons or an arrest) until it has reached its
final conclusion in the judicial process, and that includes the last possible appeal. The test for
ascertaining whether the publication is calculated to influence the outcome of a case is
extremely wide. It does not matter whether or not the publication has ever reached the ears of the
court, and if indeed it has, whether or
not the court believes the facts contained in the publication or has allowed itself to
be influenced by them. It does not even have to be probable that the words may
influence the court (In re Norrie v Consanie 1932, Van Niekerk).

b Liability of a newspaper editor

For some time there has been uncertainty in our law whether intention is required
for a conviction where an editor of a newspaper has been charged with contempt
of court on the ground of having published information in his newspaper concerning a pending
case, which tends to influence the outcome of the case. In Harber 1988 the Appellate Division
removed this uncertainty by holding that it is not necessary to prove intention in these cases
culpability may consist of either intention or negligence. The editor would be negligent if the
reasonable person in his position could foresee that the information which he publishes might
deal with a pending case or that it might scandalise the court. The rule that negligence may be a
sufficient form of culpability is based on the consideration that since the press influences public
opinion to such an extent, it correspondingly shoulders a heavier responsibility than the
ordinary individual to control the correctness of what it publishes. The rule that in these cases
proof of intention is dispensed with and that proof of negligence is sufficient, applies only if the
editor or proprietor of a newspaper or a magazine, or the company which owns it, is charged
with the crime. The rule does not apply where an individual reporter is charged in his
private capacity.
(You should note that culpable homicide and this form of contempt of court are the only two
exceptions to the rule that the form of culpability required for all common-law crimes, is
intention. In the case of the two exceptions, negligence is required.

READ ANSWER TO ACTIVITY ON PAGE 58 S.G.

5.4.9.3 Scandalising the court

study this form of crime in Criminal Law 333-336 on your own.
Note that
. this form of contempt can be committed without there being any pending case.
. the crime is committed by publication, either in writing or orally, of allegations which, are
likely to bring judges, magistrates or the administration of justice through the courts generally
into contempt, or unjustly to cast suspicion on the administration of justice.
. whether administration of justice was in actual fact brought into disrepute is irrelevant. All that
is required is that words or conduct should have tendency/likelihood to harm.
Examples of this form of the crime are:
. imputing of corrupt or dishonest motives or conduct to a judge in execution of his judicial duties
. improper arousing of suspicion regarding integrity of such administration of justice
In S v Moila 2005 the accused (X) made publications in press releases and letters to all and
sundry over a period of more than a year, leveling accusations of bias, racism, incompetence,
intimidation, collusion, lack of integrity and impartiality against judges. He also called for the
recusal of entire Transvaal Provincial Division. The accused raised defence that publications were
made in exercise of his right to freedom of expression. He was charged with contempt of court ex
facie curiae in form of scandalising the court
and convicted of this offence. The court held that comments that he had made were not fair and
reasonable, were not made bona fide, not true and not in public interest. The accused acted with
malice and deliberately abused his right to freedom of expression to savage character and
integrity of the judges their capacities as judges. The court held that publications were likely to
damage the administration of justice, was unlawful and that X had acted with dolus eventualis in
that he subjectively appreciated that he might cause harm to the administration of justice but he
continued to do so, reckless as to
whether or not such harm eventuated.

5.4.9.4 Failure to comply with a court order

A party to a civil case whom court has issued an order and who deliberately fails to obey court
order commits contempt of court. Such a party is not criminally prosecuted for contempt, but it
is left to his successful opponent to apply to the court to sentence the party who fails to carry out
the court order for contempt. Such an application is a method of enforcing the court order,
because if request is successful, sentence is suspended on condition that the court order is carried
out (Knott v Tuck 1968) Tromp v Tromp).
(These cases are known as ``civil contempt''.)
In practice this procedure is regularly followed by a person who has been divorced and who
wants to force other party to the divorce to comply with the order of court relating to the payment
of maintenance.
In Beyers 1968 the Appeal Court decided that there is nothing preventing Attorney-General
from charging and prosecuting the party who fails to carry out a court order. The court decided
that in ``civil contempt'' it is still a crime that is committed, even though the case is heard
by a civil court in these cases a sentence is always imposed, and no sentence can be imposed if
no crime is committed. Attorney-General had not had the power to interfere, it would have
meant that the most far-reaching contempt of court would remain unpunished if the successful
litigant decided for some reason or other not to request enforcement of the order.
GLOSSARY
in facie curiae in the court, or in the face of the court
ex facie curiae outside the court
sub iudice still under consideration by the court

SUMMARY
General
(1) The definitions and elements of common-law perjury, statutory perjury,
defeating or obstructing the course of justice and contempt of court are found
above or in the relevant portions of the prescribed book.
Perjury
(2) In common-law perjury there must be a false declaration. The declaration
must be objectively false. The declaration may be oral or in writing.
(3) In common-law perjury the declaration must be either
(a) under oath
(b) after an affirmation to tell the truth, or
(c) (in the case of children) after a warning to tell the truth
(4) In common-law perjury the declaration must be made in the course of a legal
proceeding.
(5) There are two differences between common-law perjury and statutory perjury
(see Criminal Law 349).
Defeating or obstructing the course of justice
(6) There is a difference between defeating and obstructing the course of justice.
The last-mentioned is something less than the first-mentioned.
(7) The following acts constitute some of the many ways in which the course of
justice may be defeated or obstructed: persuading a witness not to give
evidence in a trial; misleading the police in order to prevent them from
catching a criminal; and laying a false criminal charge against someone.
(8) It is not a requirement for this crime that a case must be pending.
(9) Charges of attempt to defeat or obstruct the course of justice are more
common than charges of actual defeat or obstruction.
Contempt of court
(10) One of the unusual characteristics of this crime is that it can be subdivided
into several ``sub-crimes'', each with requirements of its own.
(11) A distinction is drawn between contempt in facie curiae (committed in court)
and contempt ex facie curiae (committed outside court).
(12) One of the many ways in which contempt of court can be committed is by
scandalising the court.
(13) Remarks amounting to fair comment on the administration of justice or on
the outcome of a case are not unlawful and do not constitute contempt of
court.
(14) Contempt of court in facie curiae takes place when X behaves in such a way
in court as to violate the dignity or authority of the judge or magistrate, for
example by singing loudly in court. In such a case the judge or magistrate
can summarily convict and punish X.
(15) Commentary on pending cases constitutes contempt of court if it is
calculated to influence the outcome of a case.
(16) As a general rule, culpability in the form of intention is required for a
conviction of contempt of court. There is, however, the following exception to
this rule: If a newspaper editor is charged with contempt of court in that his
newspaper has published commentary or information relating to a case
which is pending, it is not necessary to prove intention on his part;
culpability in the form of negligence is sufficient.

TEST
(1) Define common-law and statutory perjury, defeating or obstructing the course of
justice and contempt of court.
(2) Discuss the following requirements of common-law perjury:
(a) the requirement of a false declaration
(b) the requirement that the declaration must be under oath or in a form allowed to be
substituted for an oath
(c) the requirement that the declaration be made in the course of a legal proceeding.
(3) Name the requirements of statutory perjury.
(4) Discuss the difference between defeating and obstructing the course of justice.
(5) Name five ways in which the crime of defeating or obstructing the course of justice
can be committed.
(6) Is it necessary on a charge of defeating or obstructing the course of justice to prove
that there is a pending case? Discuss.
(7) Complete the following sentence: In the case of .............................. it was held that if
X, a motorist, flickers his lights to warn oncoming motorists about the presence of a
speed trap, he commits the crime of .............................., but in the case of Perera, where
the facts were almost identical, it was held that the motorist in such a case could only be
guilty of this offence if ..............................
(8) Discuss the reason for the existence of the crime of contempt of court.
(9) Name three ways in which contempt ex facie curiae can be committed.
(10) Name and discuss two special grounds which can exclude the unlawfulness of an act
which would otherwise constitute contempt of court.
(11) Discuss contempt of court in facie curiae.
(12) Discuss contempt ex facie curiae in the form of commentary on pending cases.
(13) Discuss contempt ex facie curiae in the form of scandalising the court.

Crimes against the community

Crimes against public welfare

Corruption was previously a common-law offence known as ``bribery''. From 1992, corruption
was punished in terms of Corruption Act 94. This Act was replaced by the Prevention and
Combating of Corrupt Activities Act 12 of 2004.

Shortened definition of the general crime of corruption

If one applies the rules for analysing sentences by provisionally cutting out the
conjunctive words or phrases, the main sentence of the definition quoted above
reads as follows:
Anyone that
(a) accepts any gratification from any other person, or
(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.

Two most important ways in which offence can be committed - are corruption committed by the
giver and corruption committed by the recipient. The expression ``corruption by a
giver'' refers to the conduct of the giver, and ``corruption committed by a recipient'' to the conduct
of the party who accepted it.

General crime of corruption: the crime committed by

the recipient
6.2.6.1 Elements of the crime
The elements of the general crime of corruption by the recipient are the following:
(1) the acceptance by Y (the element of an act)
(2) of gratification
(3) in order to act in a certain way (the inducement)
(4) unlawfulness
(5) intention
6.2.6.2 The acceptance (element of an act)
The word ``accept'' has a technical meaning because it includes a number of other
acts that are not normally regarded as synonyms of ``accept''. The legislature
employs two ways to broaden the meaning of ``accept'':
. The Act also provides (in s 3(a)) for certain conduct by Y which precedes the
acceptance, namely
to agree to accept a gratification or
to offer to receive
satisfies the element of an act.
No distinction is made between the stem crime (main crime) and conspiracy or incitement to
commit the main crime.
The following considerations afford Y no defence:
(1) Y did not accept the gratification ``directly'' – only ``indirectly''. Y does not have to accept
the gratification personally - use of a middle man to accept the gratification affords her no
defence.
(2) Y did not in actual fact later perform the act which X had induced her to perform. If Y
had accepted gratification but scheme was exposed and Y was arrested by the police before she
could fulfil her part of the agreement with X, Y is guilty of the
crime. The crime is completed even if Y has not yet done what she had undertaken to do,
expressly or implicitly.
(3) The corrupt activity between X and Y was unsuccessful. This consideration affords neither X
nor Y a defence.
(4) For the purpose of liability, it is irrelevant that the state or the private enterprise concerned
with the transaction did not suffer prejudice as a result of X or Y's conduct.
(5) The fact that Y accepted the gratification but that she, in actual fact, did not have the power
or right to do what X wished her to do, affords neither X nor Y a defence. If X gives gratification
to Y in the belief that Y will give her a driver's licence, which she is not entitled to do, as Z rather
than Y is empowered to make such a decision, this fact can afford neither X nor Y a defence.

6.2.6.3 The gratification

Words/expressions which mean gratification:
(1) money
(2) a gift
(3) a loan
(4) property
(5) the avoidance of a loss
(6) the avoidance of a penalty (such as a fine
(7) employment, a contract of employment or services
(8) any forbearance to demand any money
(9) any ``favour or advantage of any description''
(10) any right or privilege

``Gratification'' has a very broad meaning it is not limited to material/patrimonial benefits. It is

wide enough to include information sexual favours.
6.2.6.4 The element of inducement (``in order to act ... in a manner'')
a General
Y must accept the gratification in order to act in a certain manner she must accept the
gratification as an inducement to act in a certain manner - she must have a certain aim or motive
in mind with the acceptance.

b The aims
The aims are the following: In order to act in a manner:
(1) that amounts to the illegal, dishonest, unauthorised, incomplete, or biased, exercise of any
powers, duties/functions arising out of a legal obligation.
(2) which amounts to the misuse or selling of information acquired in the course of the exercise
of any duties arising out of a legal obligation.
(3) which amounts to the abuse of a position of authority, the violation of a legal duty or a
breach of trust.
(4) In order to act in a manner designed to achieve an unjustified result.
(5) In order to act in a manner that amounts to any other improper inducement
to do or not to do anything.

These aims are defined broadly they cover a wide field. The fourth aim is formulated so broadly
that it includes almost all the other aims.

c General principles of the aims

(1) The legislature provides an ``act'' also includes an omission.
(2) It is irrelevant whether Y plans to achieve this aim personally or whether she
plans to achieve this aim by influencing another person to act in such a
manner - Y may make use of a middle man to achieve the aim.
(3) The aims apply in the alternative - it is sufficient for state to prove that Y
had only one of these aims in mind when she accepted the gratification.
(4) It is irrelevant whether Y accepted the gratification for her own benefit or for
the benefit of someone else the fact that Y receives money from X in a corrupt way with the aim
to use the money to provide for her sick child, affords her no defence.
(5) The fact that Y did not in actual fact have the power to act in the manner in
which she was induced to act, affords Y no defence. If Y receives money from X as inducement
to give X a particular licence but a person in a higher position is actually empowered to decide
who should be issued with licences, Y is still guilty of the crime.

6.2.6.5 Unlawfulness
The element of unlawfulness is not expressly provided for in definition of crime must be read into
it. Unlawfulness – the requirement that the act should be ``unjustified'', is a requirement or
element of all crimes. - Y's conduct must not be covered by a ground of justification. Grounds for
justification:
(1) Y acted under compulsion.
(2) A person used as police trap agrees to receive gratification from in order to trap that person
into committing corruption (Ernst 1963, Ganie 1967).
(3) Certain officials/employees - porters or waiters, do not act unlawfully when they receive
``tips'' for services which they performed satisfactorily.
(4) The same applies as regards the receiving of gifts of a reasonable proportion by employees at
occasions such as weddings or retirement or completion of a ``round number'' (say, for instance,
20 years) of work. (A ``golden handshake'' which may involve a substantial amount of money
may, depending on the circumstances, be another case).
6.2.6.6 Intention
Strict liability requires negligence - form of culpability required for this crime is intention..
Words used in the section suppose the requirement of intention: ``accept'', ``agree'', ``offer'',
``inducement'', ``in order to ...'' and ``designed''.
Intention always includes a certain knowledge- knowledge of the nature of the act, the
presence of the definitional elements and the unlawfulness. Someone has knowledge of a fact not
only if she is convinced of its existence, but also if she foresees the possibility of the existence of
the fact but is reckless towards it - she is not deterred by the possibility of the existence of the
fact and goes ahead with the forbidden conduct regardless. Then her intention is present in the
form of dolus eventualis. The Act contains a provision which expressly applies the principle (of
dolus eventualis) to this crime person is regarded as having knowledge of a fact, not just if the
person has actual
knowledge of a fact, but also if the court is satisfied that the person believes that there is a
reasonable possibility of the existence of that fact and that the person has failed to obtain
information to confirm the existence of that fact. This provision is merely an application of the
general rule that intention in respect of a circumstance (as opposed to a consequence) can also
exist in the form of dolus eventualis - more specifically, that ``wilful blindless'' amounts to
knowledge of a fact and, accordingly, intention. These principles have previously been accepted
in our case law. (See Meyers 1948 and Bougarde 1954 ).

Y accepted the gratification without intending to perform the act which she was induced to
perform, affords Y no defense.
6.2.6.7 Penalties
Any person who is convicted of the general crime of corruption may be sentenced
as follows:
(1) High Court, an unlimited fine or ``imprisonment up to a period of imprisonment for life –
imprisonment as well as a fine may be imposed.
(2) Regional court - unlimited fine which or imprisonment of a period not exceeding 18 years –
max fine is 18years x R20 000 per/year = R360 000 – fine and sentence of imprisonment may be
imposed.
(3) Magistrate's court, an unlimited fine or imprisonment exceeding five years maximum fine that
may be imposed by a magistrate's court is 5 X R20 000 = R100 000 – a fine as well as a sentence
of imprisonment may be imposed.
In addition to any fine a court may impose, a court may impose a fine equal to five times the
value of the gratification involved in the offence.
General crime of corruption: corruption by the giver
6.2.7.1 General
Corruption committed by the giver is mirror image of corruption committed by the recipient.
Except indicated otherwise, all the principles applicable to corruption committed by the recipient
is, mutatis mutandis (by replacing the word ``accept''
with the word ``give'' in each instance).

6.2.7.2 Elements of the crime

The elements of the general crime of corruption are the following:
(1) the giving by X to Y (the requirement of an act)
(2) of gratification
(3) in order to induce Y to act in a certain manner (the element of inducement)
(4) unlawfulness
(5) intention
6.2.7.3 The giving of gratification
Word ``gives'' has technical meaning apart from ``give'' as in the ordinary meaning of the word,
other acts are included which are not normally regarded as synonyms of ``give''.
The legislature uses two ways to broaden the meaning of ``give'':
(1) certain conduct by X preceding the giving of the gratification - to merely agree to give
gratification or to offer to give it, also satisfies the requirement of an act.
(2) the words ``give or agree or offer to give any gratification'', have the following broader
meanings:
. to promise, lend, grant, confer or procure the gratification
. to agree to lend, grant, confer or procure the gratification
. offer to lend, grant, confer or procure such gratification

Considerations such as the following afford X no defence:

. Y, although she gave impression that she would accept in actual fact had had no intention of
doing what X had asked her to do.
. Y did not do what X requested her to do.
. Y did not have the power to do that which she was requested to do.
. Y rejected X's offer
. Y agreed but thereafter changed her mind
. Y found it impossible to do that which she had undertaken to do

6.2.7.4 The gratification

same as the requirement for corruption committed by the recipient.
6.2.7.5 In order to act in a certain manner (the element of inducement)
same as requirement for corruption committed by the recipient.
In S v Shaik and Others 2007 – the accused was convicted of corruption in terms of the
predecessor of section 3 of Act 12 of 2004 (s 1 of the Corruption Act 94 of 1992).

Read the case into tape if you want s/g/p. 75.

6.2.7.6 Unlawfulness
This requirement is the same as the corresponding requirement for corruption
committed by the recipient, and has already been discussed above.
6.2.7.7 Intention
This requirement is the same as the corresponding requirement for corruption
committed by the recipient and has already been discussed above.
6.2.7.8 Penalties
The penalty prescribed for the commission of corruption by the recipient is the
same as those prescribed for corruption by the giver. These penalties are
discussed above

Corruption relating to specific persons

``corrupt activities relating to specific persons'' are criminalised.
We will just give a brief overview of some of these specific offences.
(1) Corruption relating to public officials. Example of such an official is a state official.
(2) Corruption in relation to agents. Corruption committed by business people in the private
sector is criminalised in this section.
(3) Corruption in relation to members of the legislative authority.
(4) Corruption in relation to judicial officers. Section 8 creates a crime limited to the
corruption of judicial officers - includes judges and magistrates. If someone corrupts a judicial
officer, the conduct can also be punished as contempt of court.
(5) Corruption relating to members of the prosecuting authority - case is contained so that it can
be reported missing and prosecution not be successful – this can overlap with the common-law
offence of defeating or obstructing the course of justice.
(6) Receiving or offering of unauthorised gratification by a party to an employment
relationship. - inducement to promote one of his employees
(7) Corruption relating to procuring of tenders
(8) Corruption relating to sporting events- persuade Y to manipulate the game in such a way that
the match has a certain outcome.
6.2.9 Failure to report corrupt acts
Failure by a person in a position of authority who knows or ought reasonably to have known
that certain crimes named in the Act have been committed to report an offence created in the Act
to a police officer. People who hold a position of authority any partner in a partnership and any
person who is responsible for the overall management and
control of the business of an employer. The form of culpability required is either
intention or negligence - apart from actual knowledge, it also includes the case where a person
believed that a fact existed but then failed to obtain information to confirm the
existence of that fact (``wilful blindness'').

Extraterritorial jurisdiction
If offence under the Act occurred outside the RSA, a court in the RSA shall have jurisdiction. It is
irrelevant whether the act with which the accused is charged amounts to an offence in the country
in which it was committed. The accused must be a citizen of or ordinarily resident in RSA or was
arrested in RSA or should be a company incorporated or registered in the RSA or any body of
persons in the Republic. Therefore, if a South African sportswoman participated in a sporting
event in Japan and tried to influence the outcome of the match because a gambler offered her a
sum of money to act in this manner, she can be charged in South Africa with one of the offences
created in this Act.

.
6.3.2 Definition
Extortion is the unlawful and intentional acquisition of a benefit from some other person
by applying pressure to that person which induces her to part with the benefit Elements of
crime
The elements of this crime are
(1) the acquisition of
(2) a benefit
(3) by applying pressure
(4) a causal link (between the pressure and the acquisition of a benefit)
(5) unlawfulness
(6) intention

The perpetrator
In Roman and Roman-Dutch law the crime was known as concussio, and could only be
committed by a public official. In G 1938 the Appellate Division held that the crime could be
committed by any person and not only an official; X need not even represent herself as an
official (Richardson 1913).

Exertion of pressure
X must acquire the benefit by bringing pressure to bear on Y; Y must give way under stress of
pressure - may take the form of threats - inspiring of fear, or intimidation. Where there is a threat
of physical injury to Y herself, extortion and robbery overlap (Ex Parte Minister of Justice: In re
R v Gesa, Rv Jong 1959 - Y may also be threatened with defamation (Ngquandu 1939 - dismissal
from her employment (Farndon 1937 or arrest and prosecution (Lepheana 1956) - a threat
couched in negative terms - X threatens not to return something she borrowed (Ngquandu) -
harm to a third person as in Lepheana where the threat was of the prosecution of Y's wife. The
threat may be either explicit or implicit.

The benefit
Before 1989 there were conflicting decisions on the question whether benefit in extortion should
be limited to patrimonial benefit. ``Patrimonial'' in this connection means ``which can be
converted into or expressed in terms of money or economic value''. In Ex parte Minister van
Justisie: in re S v J en S v Von Molendorff 1989 - the Appellate Division after an extensive
investigation of the common-law authorities held that the benefit in this crime must be limited to
a patrimonial one. General Law Amendment Act 139 of 1992 any advantage was extorted,
whether or not such advantage was of a patrimonial nature. At present any advantage or benefit
patrimonial or non-patrimonial can be extorted. The crime will not have been completed until the
benefit has been handed to X
(Mtirara 1962).

Causation
There must be a causal connection between the application of pressure and the acquisition of the
thing (Mahomed 1929). If the benefit is handed over not because
of pressure exerted by X, but because a trap has been set for X and Y wishes her to
be apprehended, the crime is merely attempted extortion (Lazarus 1922).

Unlawfulness
The pressure or intimidation must have been exerted unlawfully- this does not imply that if Y is
threatened with something which X is entitled or empowered to do, the threat can never be
sufficient for extortion. The correct approach advocated by the courts is to note the way in which
X exercised the pressure and what she intended thereby. Although it is perfectly in order for a
police official to inform an accused that she intends prosecuting her, it is both irregular and
unlawful for the police official to state that she will prosecute the accused unless she pays her a
sum of money (Lutge and Lepheana).

Intention
X must intend her words as a threat or intend give rise to fear. She must have the intention of
acquiring the benefit while fully realising that she is not entitled to it. Her motive is totally
irrelevant.

ACTIVITY
Consider whether the crime of extortion is committed by X in the following
instances:
(1) X threatens Y to sue him if he does not pay back the money he owes her. Y does in fact owe
X the money and has already, for a considerable time, refrained from paying his debt despite
demands by X. Y, afraid of the legal costs that he may incur, immediately pays his debts to X.
(2) X tells Y that she will hire somebody to break into his house and steal his property if he does
not pay back the money he owes her. Y, being afraid, pays her immediately.
(3) X is Y's boss at work. She tells Y that he will not get promotion unless he has sexual
intercourse with her. Y refuses and lays a charge at the police.

FEEDBACK
(1) X cannot be convicted of extortion since her conduct is not unlawful. It is not
against the legal convictions of society to obtain a perfectly legitimate
advantage (payment of a debt) by means of a threat of legal action.
(2) X can be convicted of extortion. It is undoubtedly against the legal
convictions of society to use this type of pressure (ie, to threaten to hire
somebody to break into someone else's house and violate his property
rights), to obtain a benefit. Although the benefit obtained is legitimate, the
illegitimate pressure used to obtain the benefit makes X's conduct unlawful.
(3) X may only be convicted of attempted extortion. Extortion is a materially
defined crime. This means that there must be a causal link between the
pressure and the acquisition of the benefit, and that the crime is not
completed unless the perpetrator has received the benefit. Because X has not
as yet obtained the ``advantage'', she may not be convicted of the completed
crime but only of an attempt to commit extortion.
6.4
DRUG OFFENCES (Criminal Law 428±434)
6.4.1 General
The most important offences relating to drugs are found in The Drugs and Drugs
Trafficking Act 140 of 1992 ± hereinafter called ``The Act''. We will focus only on
the two most prevalent offences:
(1) the use or possession of drugs
(2) dealing in drugs
The Act divides drugs into three categories, namely
(1) dependence-producing substances
(2) dangerous dependence-producing substances
(3) undesirable dependence-producing substances

The punishment prescribed for the possession of, use of or for dealing in substances listed under
(2) and (3) is more severe than punishment prescribed for the possession of, use of or for dealing
in the substances listed under (1). Substances listed under (2) are - for instance, coca leaf,
morphine and opium. Among the substances listed under (3) are cannabis (dagga), heroin and
mandrax. Dealing in drugs is a more serious offence than possessing or using drugs. It is
important to note that ``possession'' and ``use'' are not treated in the Act as two separate offences,
but as one single offence.

The use or possession of drugs

(Criminal Law 429±431)
6.4.2.1 Definition
It is an offence for any person unlawfully and intentionally to use or have in her
possession any dependence-producing substance or any dangerous
dependenceproducing
substance or any undesirable dependence-producing substance (s 4 of
the Act).
6.4.2.2 Elements of offence
The elements of this offence are
(1) the act that is possession or use of
(2) a drug as described in the Act
(3) unlawfulness
(4) intention
6.4.2.3 The use or possession of drugs
(Criminal Law 429±431)
6.4.2.1 Definition
It is an offence for any person unlawfully and intentionally to use or have in her
possession any dependence-producing substance or any dangerous
dependenceproducing
substance or any undesirable dependence-producing substance (s 4 of
the Act).
6.4.2.2 Elements of offence
The elements of this offence are
(1) the act that is possession or use of
(2) a drug as described in the Act
(3) unlawfulness
(4) intention

6.4.2.3 The act possession or use

a Use
Smoking, inhalation, injection or ingestion of drugs will amount to use of the drug. It is not clear
why the legislature prescribed not only the possession of, but also the use of drugs, since any
instance of use of a drug involves also its possession and as such amounts to an offence under the
Act - in practice it seldom happens that X is accused only of using a drug.

b Possession
(i) General meaning of ``possession''
In law, possession consists of two elements, namely
. a physical or corporeal element (referred to as corpus or detentio)
. a mental element, that is X's intention (the animus)
The physical element consists in an appropriate degree of physical control over
the thing. The precise degree of control required depends upon the nature of the
article and the way in which control is ordinarily exercised over such a type of
article. The control may be actual or constructive. Constructive control means control through
somebody else - a representative or servant (Singiswa 1981).

The mental element (animus) of possession relates to the intention with which somebody
exercises control over an article -there may be more than one possibility: The mental element
(animus) of possession relates to the intention with which somebody exercises control over an
article.

X may exercise control over the article as owner of the article - possessio civilis. This is the
narrow meaning of possession.

X may exercise control over the article with the intention of keeping it for somebody else -
possessio naturalis. This is the broader type of possession.

(ii) Meaning of ``possession'' in the Act

Legislature created crimes penalising the possession of certain types of articles, such as drugs,
unlicenced firearms, stolen goods, dangerous weapons or housebreaking implements the word
``possession'' varies between the different Acts, depending upon the intention of the legislature.
What is the meaning of the word ``possession'' in the present Act?
Section 1 of the Act provides that the word ``possess'' as used in the Act includes
. keeping
. storing or
. having in custody or under control or supervision

This provision is wide enough to cover - a person has the custody over an article not in order to
use it herself, but on behalf of somebody else, as where she looks after it for
somebody else.

There are two ways in which the state may prove the element of possession.
. The first is by proving that X exercised control over the drug as an owner for herself - (ie
possession as an owner) is possession civilis narrow meaning.
. The second way of proving possession is by proving that - kept it for or on behalf of somebody
else -is possession naturalis the extended or broad meaning of the term.

(iii) Presumption of possession no longer valid

Previously, there was a third to prove possession could be proved - by relying on a presumption
of possession - if it is proved that any drug was found in the immediate
vicinity of X, it shall be presumed that she was found in possession of such drug,
unless she proves the contrary. In Mello 1998 the Constitutional Court declared this provision
invalid on the ground that it is inconsistent with the constitutional right of the accused to be
presumed innocent until proven guilty.
(iv) Prohibition upon use or possession of dagga declared

(iv) Prohibition upon use or possession of dagga declared constitutional In Prince v

President, Cape Law Society 2002 it was argued that (which prohibits the use or possession of
drugs) was in conflict with constitutional right to freedom of religion because it did not grant an
exemption to Rastafari to use and possess dagga (cannabis) for religious purposes. The
Constitutional Court held that such an exemption could not be justified because it would
undermine the general prohibition against possession
of dagga. The relevant legislation was accordingly declared constitutional.
6.4.2.4 The drug
The offence is committed if what is possessed or used is either a dependence-producing
substance, a dangerous dependence-producing substance or an undesirable dependence-producing
substance.

6.4.2.5 Unlawfulness
Unlawfulness may be excluded by necessity.
A number of grounds of justification:
. that X was a patient who acquired or bought the drug from a medical practitioner, dentist,
veterinarian or pharmacist, or
. that X was a medical practitioner, dentist, veterinarian, pharmacist or wholesale dealer in
pharmaceutical products who has bought or collected the drugs in accordance with the Medicines
and Related Substances Act.

6.4.2.6 Intention
Culpability in the form of intention is required - a person who was unaware that dagga was in her
possession, cannot be found guilty of the offence.

>>6.4.2.7 Punishment
For using or possessing a dependence-producing substance is:
. any fine the court may deem fit to impose, or
. imprisonment for a period not exceeding five years, or
. both such fine and such imprisonment.
The punishment for using or possessing a dangerous or undesirable dependence-
producing substance (such a dagga) is
. any fine the court may deem fit to impose, or
. imprisonment for a period not exceeding 15 years or
. both such fine and such imprisonment
6.4.3 Dealing in drugs
Dealing in drugs (Criminal Law 431±434)
6.4.3.1 Definition
It is an offence unlawfully and intentionally to deal in any dependence-producing
substance or any dangerous dependence-producing substance or in any undesirable
dependence-producing substance (s 5(b) and 13(f) of the Act).
6.4.3.2 Elements of the offence
The elements of this offence are
(1) the act (that is to deal in)
(2) the drug as described in the Act
(3) unlawfulness
(4) intention
6.4.3.3 The act dealing
the legislature was not so much concerned with punishing those who use drugs, as punishing
those who make drugs available to users – so as to suppress supply of drugs users, the legislature
has prohibited sale of drugs as well as all aspects of production, manufacture, distribution and
provision of drugs:
. transshipment
. importation
. cultivation
. collection
. manufacture
. supply
. prescription
. administration
. sale . transmission or . exportation
In Solomon 1986 the Appeal Court held that it was not the legislature's intention that a person
who purchases drugs for her own use thereby performs an act in respect of the ``sale'' or ``supply''
of drugs within the extended meaning of the definition of ``dealing''. The court explained that
the legislature, by creating the different offences of ``dealing'' and ``possession or use'', intended
to draw a distinction between
. activities relating to the furnishing of drugs
. activities relating to the acquisition of drugs
The court found that the legislature intended to punish activities in furnishing drugs as ``dealing
in'' drugs and that it did not intend activities in acquiring drugs to be regarded as ``dealing
in'' drugs, but only as being in possession of the drugs - if X commits an act which consists
merely in her obtaining the drug for her own personal use, she can only be convicted of
possession or use of the drug, and not of dealing in the drug.

A person (X) who purchases drugs for Z for Z's own use – is acquiring and not supplying
or furnishing the drugs - she can only be convicted for ``possession or use'' (as opposed to
``dealing in drugs'') (Solomon).

Previously there was a third way to prove ``dealing'' - anyone found in possession of prohibited
or dangerous drugs, or dagga exceeding 115 gram, was presumed to have dealt in the drug or
dagga. The onus was then on the accused to prove that she had not dealt in the drug. This was
declared unconstitutional on the ground that it was inconsistent with the accused's constitutional
right to be presumed innocent until proven guilty. (Bhulwana, Gwadiso 1995).
Our courts have held that where a person was found in possession of large quantities of dagga and
was unable to furnish a reasonable explanation of such possession, there might be sufficient
circumstantial evidence to make an inference that she has been dealing in the drugs. (Bhulwana;
S v Gwadiso and Sixaxeni 1994). In Mathe 1998 the
police found X alone in a motor vehicle which contained approximately 131 kg of dagga.
Because he failed to give an explanation for his possession of the dagga, and raised a ``spurious''
defence in the trial court, his conviction of possession was replaced on appeal by a conviction of
dealing in dagga.

6.4.3.4 The drug

The offence is committed if dependence-producing substance or a dangerous or undesirable
dependence producing substance as these terms are defined in the Act.
6.4.3.5 Unlawfulness
unlawfulness is excluded by necessity in the form of coercion - quite apart from grounds of
justification flowing from general principles – there are other justifications
. that X has acquired or bought the particular substance for medicinal purposes from
medical practitioner, veterinarian, dentist, pharmacist by written prescription
. that X is a medical practitioner, dentist or pharmacist who prescribes, administers, acquires,
imports or sells the substance in accordance with legislation.
6.4.3.6 Intention
Culpability in the form of intention is required - X must know that is unlawful.
6.4.3.7 Punishment
The punishment for dealing in a dependence-producing substance is
. any fine the court may deem fit to impose or
. imprisonment for a period not exceeding 10 years, or
. both such fine and such imprisonment.
The punishment for dealing in either a dangerous or an undesirable
dependence-producing drug (which includes dagga) is
. imprisonment for a period not exceeding 25 years, or
. both such imprisonment (not more than 25 years) and such fine as the court
may deem fit to impose.
UNLAWFUL POSSESSION OF FIREARMS OR AMMUNITION
(Criminal Law 434±439)
6.5.1 General

The Firearms Control Act 60 of 2000 regulates the control of firearms and ammunition and
creates a number of offences relating to unlawful possession of firearms and ammunition. The
Act draws a distinction between a ``firearm'' and a ``prohibited firearm''. A firearm is a
lethal weapon - arms and devices falling under ``prohibited firearm'' are even more ominous
and destructive, amount to weapons of war e.g. cannon and rocket launcher. A firearm can be
licensed, a prohibited firearm
cannot (barring a few exceptions) be licensed. A heavier sentence - maximum of 25 years'
imprisonment is prescribed for possessing prohibited firearm than for possession of a firearm -
maximum sentence for possession of firearm is 15 years' imprisonment.)
For the purposes of our present study we shall only consider the unlawful possession of a
``firearm'' (as opposed to a ``prohibited firearm'').

Unlawful possession of a firearm

Any person who possesses a firearm without a licence, permit or authorisation
The elements of this offence are as follows:
(1) the possession of
(2) a firearm
(3) unlawfulness
(4) culpability:
6.5.2.1 Possession
The word ``possess'' is not defined in the Act. In the previous Act the word ``possession'' was
defined as including custody - under the previous Act the word ``possession'' referred to physical
control over the arm with the intention of possessing it
. either as if the possessor were the owner (possessio civilis) or
. merely to keep or guard it on behalf of, or for the benefit of somebody else
(possessio naturalis)
ss'' is not defined in the Act. In the previous Act which dealt
with arms and ammunition (and which was replaced by the present Act) the
word ``possession'' was defined as including custody. Accordingly, under the
previous Act the word ``possession'' referred to physical control over the arm
with the intention of possessing it
. either as if the possessor were the owner (possessio civilis) or
. merely to keep or guard it on behalf of, or for the benefit of somebody else
(possessio naturalis)

It is submitted that the meaning which the term had in the previous Act still applies to the term as
used in the present Act. This means that even possession by a person who merely keeps or guards
the firearm temporarily for or on behalf of somebody else
(possessio naturalis) is punishable
6.5.2.2 Firearm
It is sufficient to know -``any device manufactured or designed to propel a bullet or projectile
through a barrel or cylinder by means of burning propellant'', and to keep in
mind that this definition includes the barrel or frame of the device.

6.5.2.3 Unlawfulness
The possession must be unlawful and not covered by a ground of justification such as necessity -
crime is not committed by somebody who holds a licence, permit or authorisation. Official
institutions - National Defence Force, Police Service and the Department of Correctional
Services, are exempt from the prohibition of possession of firearms.

6.5.2.4 Culpability
The legislature does not specify whether intention or negligence is required for
liability. Under the previous Act proof of negligence was sufficient for a conviction - the same
applies under the present Act. The unlawful possession of firearms is one of the greatest evils
besetting South African society and that the legislature's intention was clearly to spread the net
against the unlawful possession of firearms as widely as possible.

6.5.2.5 Punishment
In terms of section 121, read with Schedule 4, the punishment for the offence is a
fine or imprisonment for a period not exceeding 15 years

Unlawful possession of ammunition

Section 90 provides that no person may possess any ammunition unless she
(1) holds a licence in respect of a firearm capable of discharging that
ammunition
(2) holds a permit to possess ammunition
(3) holds a dealer's licence, manufacturer's licence, gunsmith's licence, import,
export or in-transit permit or transporter's permit issued in terms of this Act;
or
(4) is otherwise authorised to do so.
Section 91(1) provides that the holder of a licence to possess a firearm may not
possess more than 200 cartridges for each firearm in respect of which she holds a
licence. However, in terms of subsection (2) this limitation does not apply to:
. a dedicated hunter or dedicated sports person who holds a licence, or
. the holder of a licence to possess a firearm in respect of ammunition bought
and discharged at an accredited shooting range
- do not apply to official institutions such as the National Defence Force, Police Service
and the Department of Correctional Services.

The punishment for the unlawful possession of ammunition is a fine or

imprisonment for a period not exceeding 15 years.

Certain other offences created in the Act

(1) To be aware that somebody else possesses a firearm illegally and to fail to
report this to the police.
(2) To cause bodily injury to a person or damage to property by negligently
using a firearm.
(3) To handle a firearm while under the influence of a substance which has an
intoxicating or a narcotic effect.
(4) To -up discharge a firearm in a built area or a public place.
(5) To lose a firearm owing to a failure to lock it away in a safe, strong room or
safe-keeping device, or owing to failure to take reasonable steps to prevent its
loss or owing to failure to keep the keys to the safe, strong room or device in
safe custody.
GLOSSARY
possessio civilis possession as if one is an owner, ie possession for oneself
possessio naturalis possession not for oneself, but on behalf of somebody
else
corpus the physical element of possession, ie physical control
over something
detentio the physical element of possession, ie physical control
over something
animus the mental element of possession, ie the intention with
which somebody exercises control over an article
SUMMARY
Corruption
(1) Corruption is currently punishable in terms of the provisions of the
Prevention and Combating of Corrupt Activities Act 12 of 2004.
(2) The Act creates a general offence of corruption in section 3. A number of
specific offences of corruption applicable to specific persons or
circumstances are created in further sections.
(3) The following is a concise synopsis of the definition of the general offence of
corruption: ``Anyone who (a) accepts any gratification from anybody else, or
(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.''
(4) There are always two parties involved in corruption, namely the party who
gives the gratification and the party who accepts the gratification. Both
parties Ð the giver and the recipient Ð commit corruption.
(5) The elements of the offence committed by the recipient are the following:
(1) the acceptance by Y (the element of an act)
(2) of gratification
(3) in order to act in a certain manner (the element of inducement)
(4) unlawfulness
(5) intention
(6) The requirement of an act for the crime committed by the recipient is not
limited to ``accept'' only, but also includes to agree to accept, to offer to
receive or to demand or ask for gratification.
(7) The concept of ``gratification'' includes a variety of meanings, such as a
monetary meaning, the meaning of avoiding a loss, and the meaning of a
favour or an advantage of any nature.
(8) The element of inducement refers to a wide variety of aims which the parties.
may have in mind, for example that the recipient should act in a manner
which amounts to the unauthorised exercise of power, the abuse of a position of
authority or achieving an unjustified result.
(9) Corruption committed by the giver is only a mirror image of corruption
committed by the recipient. The concept of ``give'' includes to agree to give,
to offer to give or to promise gratification.
(10) Apart from the general crime of corruption created in section 3, the Act
creates a number of other specific crimes of corruption applicable to specific
classes of persons such as members of the legislative authority, judicial
officers, and officials in relation to the procurement of tenders and in relation
to sporting events.
Extortion
(11) Definition of extortion Ð see definition above.
(12) In extortion X must apply pressure to Y to do or to omit to do something, and
Y must yield to the pressure.
(13) The benefit which Y obtains need not be of a patrimonial nature.
(14) There must be a causal link between the pressure and the acquisition of the
benefit.
(15) The act must be unlawful. Although it is perfectly in order for a police official
to inform an accused that she intends prosecuting her, it is both irregular and
unlawful for the police official to state that she will prosecute the accused
unless she pays her a sum of money.
(16) The act must be intentional.
Possession of drugs
(17) Definition of offence Ð see definition above.
(18) There are two ways in which the prosecution may prove that X possessed a
drug. The first is by proving possession in the ordinary juridical sense of the
word, and the second is by relying on the extended meaning given in section
1 of the Act.
(19) Possession in the ordinary juridical sense requires a physical element of
control (corpus or detentio) and a mental element of intention (animus).
(20) Physical control may be actual or constructive.
(21) The animus element is complied with if X possessed the drugs with the
intention of either keeping or disposing of them as if she were the owner, or
exercising control over them on behalf of somebody else. The latter broad
interpretation of ``possession'' is the result of the extended meaning of
``possession'' in the Act namely the ``keeping, storing or having in custody or
under control or supervision'' of drugs.
(22) Unlawfulness may be excluded by necessity, as well as by a number of
grounds of justification mentioned in the Act.
(23) Culpability in the form of intention is required.
(24) In the case of Mello the court declared the presumption of possession
created in section 20 of the Act, namely that a person found in the immediate
vicinity of drugs is presumed to have ``possessed'' the drugs until she proves
the contrary, unconstitutional on the ground of inconsistency with the right of
the accused to be presumed innocent until proven guilty.
Dealing in drugs
(25) In creating the offence of ``dealing'', the concern of the legislature was to
punish those who make drugs available to users rather than to punish those
who merely acquire drugs for the purpose of using them themselves.
(26) Definition of offence Ð see definition above.
(27) The concept ``deal in'' in relation to a drug is explained the Act as the performance
of any act in connection with the transshipment,
importation, manufacture, collection, prescription, supply, cultivation,
administration, sale, transmission or exportation of a drug.
(28) Because the legislature created the offence of dealing with the intention of
punishing those who make drugs available to others, the acquisition of drugs
by a person for her own use, or by an agent for her principal's own use, does
not amount in dealing (Solomon).
(29) Unlawfulness may be excluded by, for example, necessity as well as by a
number of grounds of justification set out in the Act.
(30) Culpability in the form of intention is required for the offence.
(31) Previously, the state could rely on a number of presumptions created in the
Act in order to prove the offence of dealing. All of these presumptions have
been declared unconstitutional by our courts (Bhulwana; Julies; Ntzele and
Mjezu).
Unlawful possession of a firearm
(32) Definition of the offence Ð see definition above.
(33) The possession is not unlawful if there is a ground of justification for the
possession, such as necessity. The crime is furthermore not committed by
somebody who holds a licence, permit or authorisation issued in terms of the
Act, for the firearm.
(34) The form of culpability required for this offence is intention or probably also
negligence.
Unlawful possession of ammunition
(35) Definition of the offence in section 90 of Act - see definition above.
(36) The holder of a licence to possess a firearm may not possess more than 200
cartridges for each firearm in respect of which she holds a licence.

ACTIVITY
(1) Give a concise definition of the general crime of corruption appearing in section 3 of
the current legislation on corruption.
(2) Name the elements of the offence of corruption committed by the recipient.
(3) In the crime of corruption, the concept ``accept'' has an expanded meaning. Describe
this expanded meaning.
(4) Discuss the question what is understood by the concept ``gratification'' as this word is
used in the definition of corruption.
(5) Discuss the element of ``inducement'' for corruption committed by the recipient.
(6) Discuss the requirement of unlawfulness for corruption committed by the recipient.
(7) Discuss the requirement of intention for corruption committed by the recipient.
(8) Explain the expanded meaning of the word ``give'' for the crime of corruption
committed by the giver.
(9) Define extortion.
(10) Discuss the act which is required in order to constitute extortion and refer to decided
cases in this regard.
(11) Discuss the nature of the benefit which can be extorted.
(12) Discuss the requirement of unlawfulness in extortion.
(13) Discuss the concept ``possession or use'' of drugs.
(14) Discuss the concept ``to deal in'' drugs.
(15) The Act divides drugs into three categories. Name these categories.
(16) X buys 120 grams of dagga from a dealer, Y. She is caught in possession of the
dagga. She is charged with the offence of ``dealing in drugs'' as well as with lesser
offence of ``possession of drugs''. X's defence is that she bought the dagga for her own,
recreational use. Consider whether X may succeed with this defence as far as both the
charges are concerned.
(17) X buys drugs on behalf of her sister, Y, for the sole purpose of use by Y. Discuss
whether it can be said that X had ``supplied'' drugs for the purpose of the offence
``dealing in drugs''.
(18) Discuss the form of culpability required for the offences of ``possession or use of
drugs'' and ``dealing in drugs''.
(19) For the purposes of the offence of unlawful possession of a firearm, what does the
word ``possession'' mean?
(20) What is the gist of the definition of a firearm for the purposes of the offence of
unlawfully possessing a firearm?
(21) What is meant by ``unlawfully'' in the offence of unlawfully possessing a firearm?
(22) What form or forms of culpability is (are) required for a conviction of the offence of
unlawfully possessing a firearm?
(23) Section 90 of the Firearms Control Act 60 of 2000 provides that no person may
possess any ammunition unless she ... (four exceptions are then mentioned in the section).
Name these four exceptions.
(24) Name five other offences created in the Act in connection with firearms and
ammunition.
Extortion
(11) Definition of extortion Ð see definition above.
(12) In extortion X must apply pressure to Y to do or to omit to do something, and
Y must yield to the pressure.
(13) The benefit which Y obtains need not be of a patrimonial nature.
(14) There must be a causal link between the pressure and the acquisition of the
benefit.
(15) The act must be unlawful. Although it is perfectly in order for a police official
to inform an accused that she intends prosecuting her, it is both irregular and
unlawful for the police official to state that she will prosecute the accused
unless she pays her a sum of money.
(16) The act must be intentional.
Possession of drugs
(17) Definition of offence Ð see definition above.
(18) There are two ways in which the prosecution may prove that X possessed a
drug. The first is by proving possession in the ordinary juridical sense of the
word, and the second is by relying on the extended meaning given in section
1 of the Act.
(19) Possession in the ordinary juridical sense requires a physical element of
control (corpus or detentio) and a mental element of intention (animus).
(20) Physical control may be actual or constructive.
(21) The animus element is complied with if X possessed the drugs with the
intention of either keeping or disposing of them as if she were the owner, or
exercising control over them on behalf of somebody else. The latter broad
interpretation of ``possession'' is the result of the extended meaning of
``possession'' in the Act namely the ``keeping, storing or having in custody or
under control or supervision'' of drugs.
(22) Unlawfulness may be excluded by necessity, as well as by a number of
grounds of justification mentioned in the Act.
(23) Culpability in the form of intention is required.
(24) In the case of Mello the court declared the presumption of possession
created in section 20 of the Act, namely that a person found in the immediate
vicinity of drugs is presumed to have ``possessed'' the drugs until she proves
89
the contrary, unconstitutional on the ground of inconsistency with the right of
the accused to be presumed innocent until proven guilty.
Dealing in drugs
(25) In creating the offence of ``dealing'', the concern of the legislature was to
punish those who make drugs available to users rather than to punish those
who merely acquire drugs for the purpose of using them themselves.
(26) Definition of offence Ð see definition above.
(27) The concept ``deal in'' in relation to a drug is explained in section 1 of the Act
as the performance of any act in connection with the transshipment,
importation, manufacture, collection, prescription, supply, cultivation,
administration, sale, transmission or exportation of a drug.
(28) Because the legislature created the offence of dealing with the intention of
punishing those who make drugs available to others, the acquisition of drugs
by a person for her own use, or by an agent for her principal's own use, does
not amount in dealing (Solomon).
(29) Unlawfulness may be excluded by, for example, necessity as well as by a
number of grounds of justification set out in the Act.
(30) Culpability in the form of intention is required for the offence.
(31) Previously, the state could rely on a number of presumptions created in the
Act in order to prove the offence of dealing. All of these presumptions have
been declared unconstitutional by our courts (Bhulwana; Julies; Ntzele and
Mjezu).
Unlawful possession of a firearm
(32) Definition of the offence Ð see definition above.
(33) The possession is not unlawful if there is a ground of justification for the
possession, such as necessity. The crime is furthermore not committed by
somebody who holds a licence, permit or authorisation issued in terms of the
Act, for the firearm.
(34) The form of culpability required for this offence is intention or probably also
negligence.
Unlawful possession of ammunition
(35) Definition of the offence in section 90 of Act Ð see definition above.
(36) The holder of a licence to possess a firearm may not possess more than 200
cartridges for each firearm in respect of which she holds a licence.

TEST YOURSELF
(1) Give a concise definition of the general crime of corruption appearing in section 3 of
the current legislation on corruption.
(2) Name the elements of the offence of corruption committed by the recipient.
(3) In the crime of corruption, the concept ``accept'' has an expanded meaning. Describe
this expanded meaning.
(4) Discuss the question what is understood by the concept ``gratification'' as this word is
used in the definition of corruption.
(5) Discuss the element of ``inducement'' for corruption committed by the recipient.
(6) Discuss the requirement of unlawfulness for corruption committed by the recipient.
(7) Discuss the requirement of intention for corruption committed by the recipient.
(8) Explain the expanded meaning of the word ``give'' for the crime of corruption
committed by the giver.
(9) Define extortion.
(10) Discuss the act which is required in order to constitute extortion and refer to decided
cases in this regard.
(11) Discuss the nature of the benefit which can be extorted.
(12) Discuss the requirement of unlawfulness in extortion.
(13) Discuss the concept ``possession or use'' of drugs.
(14) Discuss the concept ``to deal in'' drugs.
(15) The Act divides drugs into three categories. Name these categories.
(16) X buys 120 grams of dagga from a dealer, Y. She is caught in possession of the
dagga. She is charged with the offence of ``dealing in drugs'' as well as with lesser
offence of ``possession of drugs''. X's defence is that she bought the dagga for her own,
recreational use. Consider whether X may succeed with this defence as far as both the
charges are concerned.
(17) X buys drugs on behalf of her sister, Y, for the sole purpose of use by Y. Discuss
whether it can be said that X had ``supplied'' drugs for the purpose of the offence
``dealing in drugs''.
(18) Discuss the form of culpability required for the offences of ``possession or use of
drugs'' and ``dealing in drugs''.
(19) For the purposes of the offence of unlawful possession of a firearm, what does the
word ``possession'' mean?
(20) What is the gist of the definition of a firearm for the purposes of the offence of
unlawfully possessing a firearm?
(21) What is meant by ``unlawfully'' in the offence of unlawfully possessing a firearm?
(22) What form or forms of culpability is (are) required for a conviction of the offence of
unlawfully possessing a firearm?
(23) Section 90 of the Firearms Control Act 60 of 2000 provides that no person may
possess any ammunition unless she ... (four exceptions are then mentioned in the section).
Name these four exceptions.
(24) Name five other offences created in the Act in connection with firearms and
ammunition.

Unit 7 Sexual Crimes

INTRODUCTION
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
was introduced because of prevalence of sexual offences in RSA and common-law and statutory
law do not deal adequately and effectively in a non-discriminatory manner with
aspects relating to the commission of sexual offences - children were not adequately protected
against sexual exploitation and the common-law crime of rape was gender-specific. The Act
amends all aspects of laws relating to sexual offences and deals with all legal aspects relating to
sexual offences in a single statute by:
. repealing the common-law offence of rape and replacing it with a new expanded statutory
offence of rape applicable to all forms of sexual penetration without consent, irrespective of
gender ``sexual penetration'' is widely defined to include various acts of a sexual nature which
were previously not criminalised
. repealing the common-law offence of indecent assault and replacing it with a new statutory
offence of sexual assault, applicable to all forms of sexual violation without consent
. creating new statutory offences relating to certain compelled acts of
penetration or violation
. creating new statutory offences for adults, by criminalising the compelling or causing the
witnessing of certain sexual conduct and of certain parts of the human anatomy, the exposure or
display of child pornography and the engaging of sexual services of an adult
. repealing the common-law offences of incest, bestiality and a violation of a corpse, as far as
such violation is of a sexual nature and enacting corresponding new statutory offences
. creating new, comprehensive sexual offences against children and persons who are mentally
disabled -offences relating to sexual exploitation or grooming, exposure to or display of
pornography and the creation of child pornography - these offences are similar to offences
created in respect of adults and aim to address the vulnerability to sexual abuse and exploitation
of children and persons who are mentally disabled.
The Act eliminates the differentiation drawn between the age of consent for different
consensual sexual acts and provides for special provisions relating to the prosecution of
consensual sexual acts between children older than 12 years, but younger than 16 years.
Finally, the Act creates a duty to report sexual offences committed with or against children or
persons who are mentally disabled. Failure to report knowledge of the
commission of sexual offences amounts to an offence.

RAPE
7.1.1 General (Criminal Law 355±369)

The Sexual Offences Act 2007 repeals the common-law offence of rape - common-law offence of
rape consisted in the unlawful, intentional sexual intercourse by a male with a female without her
consent - could only be committed by a male - unlawful and intentional sexual penetration of
female genital organ (the vagina) by the male genital organ (penis) without the female's consent
was required for a conviction of the offence. Other forms of sexual penetration without consent
did not amount to rape.

Chapter 2 of the Sexual Offences Act 2007 expanded the definition of rape by creating two new
statutory offences of rape. The object is to punish all forms of sexual penetration without
consent irrespective of gender - a male can also commit the
offence in respect of another male person and a female may commit the offence in
respect of a male or a female.

The Act distinguishes between two specific offences of rape ie rape and
compelled rape. For rape, an ``act of sexual penetration'' is required by X before he/she can be
convicted of the offence. For compelled rape X need not perform an "act of sexual
penetration" to be convicted as a perpetrator of this offence provided the person so compelled
and complainant did not consent to the act.
There is no age prescription to the crime of rape - the crime may be committed by a person
of any age in respect of a person of any age.

Rape
7.1.2.1 Definition
any person (X) who unlawfully and intentionally commits an act of sexual penetration with a
complainant (Y) without his/her consent is guilty of the offence of rape.

The elements of the crime are the following: (a) sexual penetration of another
person (b) without the consent of the latter person (c) unlawfulness and (d)
intention.
7.1.2.2 The act
a. The prohibited act - sexual penetration by any person with another person without his/her
consent. ``Sexual penetration'' includes any act which causes penetration to any extent:
(i) the genital organs of one person into or beyond the genital organs,
anus, or mouth of another person
(ii) any other part of the body of one person into or beyond the genital
organs or anus of another person; or
(iii) any object (including any part of the body of an animal) into or beyond
the genital organs or anus of another person; or
(iv) the genital organs of an animal, into or beyond the mouth of another
person.
``Genital organs'' includes the whole or part of the male or female genital organs - surgically
constructed or reconstructed genital organs.
Examples:
(i) X inserts his penis into the anus or mouth of a woman or X (a female)
places her genital organ into the mouth of Y (a male or a female).
(ii) X (a male or a female) puts his/her finger into the anus of Y (a male or a
female).

(iii) X puts the tail of an animal into the vagina of Y or X puts a sex toy into
the anus of Y.
(iv) X inserts the genital organ of a dog into the mouth of Y. (This act also
amounts to the new statutory crime of bestiality.

b. Formally defined crime - a crime a certain type of act is committed. It is

Materially defined – the crime is committed by causing a certain situation, namely sexual
penetration - word ``causes'' means an act of ``sexual penetration'' is performed also where X
causes another person or an object to perform the act of penetration. The wide use of the word
``causes'' means that sexual penetration includes situations in which X performs the penetration
of Y himself/herself with his/her own body or causes another person or some object to perform
the penetration.
c. The act must be performed without the consent of Y (the complainant). The
absence of consent is a definitional element of the offence. Consent is voluntary or uncoerced
agreement.
Provision dealing with ``voluntary or uncoerced''.
Circumstances in respect of which Y does not voluntarily or without coercion
agree to an act of sexual penetration include, but are not limited to, the following:
Where Y submits or is subjected to such a sexual act as a result of
(a) the use of force or intimidation by X against Y or Z (a third person ) or
W (another person) or against the property of Y, Z or W or a threat of harm by X against Y, Z or
W or against the property of Y, Z or W (
(b) where there is an abuse of power or authority by X to the extent that Y is
inhibited from indicating his or her unwillingness or resistance to the sexual act, or unwillingness
to participate in such a sexual act.
(c) where the sexual act is committed under false pretences or by fraudulent means, including
where Y is led to believe by X that (i) Y is committing such a sexual act with a particular
person who is in fact a different person; or
(ii) such a sexual act is something other than that act or
(d) where Y is incapable in law of appreciating the nature of the sexual act,
including where Y is, at the time of the commission of such sexual act Ð
(i) asleep;
(ii) unconscious;
(iii) in an altered state of consciousness, including under the influence
of any medicine, drug, alcohol or other substance, to the extent that
Y's consciousness or judgment is adversely affected;
(iv) a child under the age of 12 years; or
(v) a person who is mentally disabled (s 1(3) (d)).

The provisions relating to consent in section 1(2) and (3) may all be summarised
as follows: For consent to succeed as a defence, it must have been given consciously and
voluntarily, either expressly or tacitly, by a person who has the mental ability to understand what
he or she is consenting to, and the consent must be based on a true knowledge of the material
facts relating to the act.
There are various factors that result in the law not deeming consent to be valid:
(i) Submission as a result of force, intimidation or threats (s 1(3)(a))
The existence of force, intimidation or threats of harm emanating from X in respect of Y. Thus if
Y ``consents'' to sexual penetration but such ``consent'' is result of force, intimidation or threats of
harm emanating from X in respect of Y, the law does not regard such consent as valid consent -
even force, intimidation or threats of harm not against Y, but against some third party, may render
consent invalid. It matters not whether the third party is a close family member of Y may even
include threats against somebody whom Y has never even met. Force or threat of harm not
against some person, but against property belonging to a person may result in such consent being
regarded as invalid. It matters not whether the property belongs to Y personally, to some
family member or friend of his or hers, or to some other person whom Y has never even
met. The word ``harm'' is not restricted to physical harm or harm to physical objects. It is wide
enough to cover monetary loss of whatever nature or even harm to reputation or dignity. If X tells
Y that an earlier act of infidelity by her against her husband will be revealed to her husband is she
does not submit to an act of sexual penetration with him
(X), and Y, not wanting her husband to know about the infidelity, submits, her
submission cannot be construed as valid consent. This is a case of intimidation of
Y by X.
(ii) Abuse by X of power of authority (s 1(3)(b))
``Where there is an abuse of power or authority by (X) that (Y) is inhibited from indicating his or
her unwillingness or resistance to the sexual act ...''. Where Y is not threatened by physical
violence, but X expressly or tacitly uses the position of power which he or she exercises over Y to
influence Y to consent.
It has been held that if X, a policeman, threatens Y to lay a charge against her (Y)
of having committed a crime if she does not consent to intercourse, and as a result
of the threat Y then does ``consent'', such consent is invalid (Volschenck 1968 ); Botha 1982). In
S 1971 it was even held that X, a policeman, committed rape when he had intercourse with Y in
circumstances- he had not threatened Y with some or other form of harm, but Y believed that X
had the power to harm her and X had been aware of this fear. It is therefore clear that if X is
somebody like a policeman who is in a position of
power over Y, Y's ``consent'' will not be regarded as valid if the evidence reveals
that she apprehended some form of harm other than physical assault upon her.
(iii) Consent obtained by fraud (s 1(3)(c))
``Consent'' is obtained by fraud. In the common-law crime of rape, in which X was always a male
and Y always a female, fraud which vitiated(weakened) consent was either fraud in respect of the
identity of the man (error personae) - the woman was led to believe that the man was her
husband, or fraud in respect of the nature of the act to which she ``agreed'' (error in negotio)
she was persuaded that the act was not an act of sexual penetration but some medical
operation. These principles still apply under the new Act, although X and Y may now be either
male or female.
Misrepresentation of any circumstance such as X's wealth, age or, where Y is a prostitute, X's
ability to pay for Y's ``services'', does not vitiate consent. Thus if X falsely represents to Y that
he/she is a multimillionaire and Y believes X's story and on the strength of such a
misrepresentation she agrees to sexual penetration by X, her consent is valid and rape is not
committed. Consent is deemed to be valid where the
person is misled not about the nature of the act of sexual intercourse but about the results
which will follow on such intercourse (K 1966). X represented to Y that intercourse with him
would cure her of her infertility problem).

What is the position if X is HIV-infected, Y is not HIV-infected and would never

give consent to intercourse with a man who is HIV-infected, yet X acquires Y's consent by
misrepresenting to her that he is not HIV-infected? It is submitted that in the light of the
severe consequences of such a misrepresentation, X's consent should not be regard as valid
consent.

(iv) Inability by Y to appreciate nature of sexual act (s 1(3)(d)) Section 1(3)(d) deals
``Incapable in law of appreciating the nature of the sexual act''. There is no valid consent if X
performs an act of sexual penetration in respect of Y if Y is asleep, unless, of course, Y has
previously, whilst awake, given consent (C 1952). The same applies to a situation where Y is
unconscious.
Consent is not valid if Y is ``in an altered state of consciousness, under the influence of any
medicine, drug, alcohol or other substance, to the extent that (Y)'s consciousness
or judgement is adversely affected''.

Paragraph (iv) of subsection (3)(d) contains a provision which is very important in

practice: if at the time of the commission of the sexual penetration Y is a child
under the age of 12 years, any ostensible(alleged/Apparent) ``consent'' by him or her is in
law invalid - child is irrebuttably presumed to be incapable of consenting to the act of
sexual penetration – “mentally disabled''.
(v) Marital relationship no defence

``It is not a valid defence accused person to contend marital or other relationship exists or existed
between him or her and the complainant''. It is possible for a husband to rape his own wife.
7.2.2.3 Unlawfulness
Absence of consent by Y is not a ground of justification, but a definitional element of the crime.
If it were merely a ground of justification, the definitional elements of this crime would simply
have consisted in sexual penetration between two persons. This, however, is not recognisable as a
crime. Unlawfulness may be excluded if X acted under compulsion. If Z forces X without his
(X's) consent to rape Y, or threatens X with harm if he/she does not rape Y and X in actual fact
rapes Y, X may rely on the ground of justification of necessity.

7.2.2.4 Intention
X must know that Y had not consented to the sexual penetration. Dolus eventualis suffices - it is
sufficient to prove that X foresaw the possibility that Y's free and conscious consent might be
lacking, but continued with the act of sexual penetration. Proof of the absence of consent, reliance
is placed on the fact that the girl is under 12 years of age at the time of the commission of the act,
X must be aware of the fact that the girl is not yet 12 years old, or at least foresee the possibility
that she may be under 12 - reliance is placed upon the woman's intoxication or her mental defect,
or the fact that she was sleeping or was defrauded, it must be established that X was aware of
such a factor vitiating consent.

7.2.2.4 Sentence
(a) General. After the decision of the Constitutional Court in Makwanyane (1995) the death
sentence is no longer a competent sentence to be imposed upon a conviction of rape. It is
similarly no longer possible for a court to order corporal punishment to be imposed upon X
(Williams 1995). Since the imposition of a fine is not an apt type of
for this crime - only type of sentence which remains is imprisonment. Before 1997 the courts had
a free discretion as to the length of the period of imprisonment. The incidence of rape in RSA is
alarmingly high.

As a reaction to the high crime level section 51 of the Criminal Law Amendment Act 105 of 1997
was enacted which makes provision for minimum sentences to be imposed for certain crimes,
such as rape- provides that the minimum sentences not applicable in respect of a child who was
under the age of 16 years at the time of the commission of the offence.

(b) Imprisonment for life must sometimes be imposed.

A High Court or a regional court must sentence a person convicted of rape to imprisonment for
life in the following circumstances:
(1) where Y was raped more than once by X or by any co-perpetrator or
accomplice
(2) where Y was raped by more than one person and such persons acted
with a common purpose
(3) where X is convicted of two or more offences of rape but not yet been
sentenced
(4) where X knows that he has acquired the ``immune deficiency syndrome
or the human immunodeficiency virus''
(5) where Y is below the age of 16 years
(6) where Y is a physically disabled woman who, due to her physical
disability, is rendered particularly vulnerable
(7) where Y is mentally ill as contemplated in section 1 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act of 2007
(8) where the rape involved the infliction of grievous bodily harm

(c) Other minimum periods of imprisonment must sometimes be imposed .

If X does not qualify for the mandatory imprisonment for life, a high or regional court is
nevertheless obliged to impose the following minimum periods of imprisonment:
(1) 10 years in respect of a first offender
(2) 15 years in respect of a second offence
(3) 20 years in respect of a third or subsequent offence (c) Other minimum periods of
imprisonment must sometimes be imposed

(d) Avoidance of minimum sentences.

There are cases where a court is of opinion that minimum periods of imprisonment would be
very harsh and unjust. The court s not then not bound to impose imprisonment for life or one of
the minimum periods of imprisonment if there are substantial and compelling circumstances
which justify the imposition of a lesser sentence than the prescribed one.

In Malgas 2001 the Supreme Court of Appeal considered the interpretation of the words and laid
down certain guidelines to be kept in mind by courts when interpreting the words. The most
important guideline provides that if a court is satisfied that the circumstances of the case render
the prescribed sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of society, so that an
injustice would be done by imposing that sentence, it is entitled to impose a lesser
sentence.
The Criminal Law (Sentencing) Amendment Act 2007 now stipulates that the following factors
are not substantial and compelling circumstances which justify the imposition of a lesser
sentence:
(i) the previous sexual history of the complainant;
(iii) an apparent lack of physical injury of the complainant;
(iii) an accused's cultural or religious beliefs about rape; or
(iv) any relationship between the accused and the complainant prior to the
commission of the offence.
In Dodo (2001) the Constitutional Court held that the introduction by the legislature of minimum
sentences in section 51 is not unconstitutional.

>>>startREAD SG P. 101.

Compelled rape (Criminal Law 369±371)

7.2.3.1 Definition
Section 3 of the Act provides that
Any person (X) who unlawfully and intentionally compels a third person
(Z) without his/her (Z's) consent to commit an act of sexual penetration
with a complainant (Y) without Y's consent; is guilty of the offence of
compelled rape.
The elements of this crime are the following: (a) compelling a person (b) to
commit an act of sexual penetration with another person (c) without the consent
of such third person and (d) without the consent of the complainant; (e)
unlawfulness and (f) intention.
7.2.3.2 The act
The act consists in the compelling of a third person without his/her consent to commit an act of
sexual penetration with Y (complainant) without Y's consent. X may be convicted even if he did
not perform act of sexual penetration with complainant - X unlawfully and intentionally compels
Z to put his penis in Y's anus without Y’s Z's consent, X
commits crime of compelled rape. Under the common-law, if X compelled Z to rape Y, X
could only be liable as an accomplice. By enacting a crime of ``compelled rape'', the
unacceptable position has now been addressed. It is doubtful whether it was at all necessary to
create this crime – its provisions coincide with the wide formulation of the crime of rape - any
act which causes penetration ...'' - the definition of ``sexual penetration'' are wide enough to
include conduct by X whereby he compels a third party to perform the sexual penetration.
It is not a defence on a charge of compelled rape that there was a marital or any other
relationship between the parties (s 56(1)).
7.2.3.3 Unlawfulness
The unlawfulness of the act may conceivably be excluded if X is himself is compelled to compel
Z to perform the act upon Y.
7.2.3.4 Intention
X must have the intention Z performs an act of sexual penetration with Y knowing or foreseeing
that the consent of Z as well as Y is absent – or dolus eventualis – foresees the possibility but
resigns himself to consequences.

7.2.3.5 Sentence
The sentence for compelled rape is the same as prescribed for rape (see 7.2.2.5
above).
FEEDBACK.
FEEDBACK
You would argue that a person can be convicted as a perpetrator on a charge of
compelled rape despite the fact that he/she did not perform any actual act of
sexual penetration with the complainant. All that is required is evidence that
he/she unlawfully and intentionally compelled a third person, without his/her
consent, to commit such act of penetration with the complainant, without his/her
consent. X unlawfully and intentionally compelled Z, without his consent (any
ostensible consent that existed was not ``uncoerced'' within the meaning of
section 1 due to the threat of harm to his life), to commit an act of sexual
penetration with Y, without her consent (likewise, any ostensible consent that
existed was not ``uncoerced''). It is no defence for him to say that he did not
commit the act of sexual penetration himself. Nor is it a defence for him to say
that his liability depended on the liability of Z as a perpetrator. He satisfies the
definitional elements of the crime himself.

SEXUAL ASSAULT, COMPELLED SEXUAL ASSAULT AND COMPELLED SELF-

SEXUAL ASSAULT
7.3.1 General
(Criminal Law 371±381)
Apart from the two specific offences of rape - the Act repeals the common-law crime of
indecent assault and replaces it with new statutory offences of sexual assault -compelled
sexual assault and compelled self-sexual assault - these
offences relate to non-consensual sexual violation of another person by the perpetrator himself
or by compelled by perpetrator to perform prohibited act. The compelled person may also be
the complainant himself.
7.3.2 Sexual assault
7.3.2.1 Definition
Section 5(1) of the Act provides that A person (X) who unlawfully and intentionally sexually
violates a complainant (Y) without the consent of Y; is guilty of the offence of sexual assault.
Section 5(2) furthermore provides that ±
A person (X) who unlawfully and intentionally inspires the belief in a complainant (Y) that Y
will be sexually violated; is guilty of the offence of sexual assault.
The elements of the crime are the following:
(a) an act of ``sexual violation'' of another person (b) without the consent of the
latter person (c) unlawfulness and (d) intention; or
(a) the inspiring of a belief in another person that he/she will be sexually violated
(b) unlawfully and (c) intentionally.
7.3.2.2 The act
The discussion below deals with first way in which the crime can be committed - the actual
sexual violation.
(a) Definition of sexual violation
The purpose of this crime is to criminalise sexual acts which fall short of actual
penetration of Y. If there is actual penetration the crime of rape is committed.
``Sexual violation'' is broadly defined – which causes (a) direct or indirect contact between the
(i) genital organs or anus of one person or, in the case of a female, her
breasts, and any part of the body of another person or an animal, or any object, including any
object resembling or representing the genital organs or anus of a person or an animal;
(ii) mouth of one person and ±
(aa) the genital organs or anus of another person or, in the case of a
female, her breasts;
(bb) the mouth of another person;
(cc) any other part of the body of another person, other than the
genital organs or anus of that person or, in the case of a female,
her breasts, which could ±
(aaa) be used in an act of sexual penetration;
(bbb) cause sexual arousal or stimulation; or
(ccc) be sexually aroused or stimulated thereby; or
(dd) any object resembling the genital organs or anus of a person, and
in the case of a female, her breasts, or an animal; or
(iii) the mouth of the complainant and the genital organs or anus of an
animal;
(b) the masturbation of one person by another person; or
(c) the insertion of any object resembling or representing the genital organs of a
person or animal, into or beyond the mouth of another person,
but does not include an act of sexual penetration, and ``sexually violates'' has a corresponding
meaning.

The third word in the definition, namely ``includes'', is important. The implication
of this word is that the punishable acts included in this crime are not limited to those expressly
mentioned in the definition, but that it is possible that other acts, not expressly mentioned in the
definition, may also amount to the commission of the crime. In the light of the extensive
enumeration of acts in the definition, it is unlikely that a court will decide that other acts, not
mentioned in the definition, also amount to the commission of the crime.
You are not required to memorise the definition of ``sexual violation'' set out
above. You must be able to identify an act which complies with the definition of sexual violation.
(b) Discussion of definition of ``sexual violation''
(i) ``... any act which causes ...''
As in the statutory crime of rape, the present crime is defined widely to include not only the
actual act of X whereby he makes contact with the body of another, but also any act whereby he
causes such contact.
(ii) The causing of contact instead of the causing of penetration is important to note whereas
the expression ``sexual penetration'', which describes the act in the crime of rape is defined as
``any act which causes penetration ...''", the expression "sexual violation", which described the
act in the crime of sexual assault is defined in terms of "any act which causes ... contact
between ...''. Sexual assault - does not deal with penetration, but with ``contact'' between two
persons.
(iii) Direct or indirect contact
The definition speaks of ``any act which causes ... direct or indirect contact between ...''
``Contact'' means the physical touching of two parts of the different bodies or of a body and an
object. ``Indirect contact'' refers to such contact through the agency of
The discussion below the different types: of acts included in the definition of ``sexual
violation'' are listed - they are numbered and set out in sequence in which they are referred to in
the definition of ``sexual violation''.
It should be assumed throughout that the acts take place without Y's consent:
Examples of conduct which may amount to the offence of ``sexual violation''.. You do not have to
learn these examples for examination purposes. You may be required, in a problem-type
question, to identify the acts which comply with the provisions of the section.
the definition is wide enough to cover the following acts:
1. X (male/female) effects a contact between his or her genital organ and any part of the body of
Y (male/female) -it is X's genital organ which touches Y's body.
2. X (male/female) effects a contact between his or her anus and any part of the body of Y
(male/female)- it is X's anus which touches Y's body.
3. Female X effects a contact between her breasts and any part of the body of Y (male or
female) - is female X who is the active party.
4. X (male/female) causes contact between the genital organs or anus of Y (or the breast(s) of
female Y) and any part of the body of an animal.
5. X (male/female), causes contact between the genital organs or anus of Y (male /female) or the
breast(s) of female Y and any object, including any object resembling or representing the genital
organs or anus of a person or an animal. If X causes female Y's
breasts to touch a piece of furniture, X's act falls within the definition.
(v) The wording of paragraph (a)(ii) use of the mouth the definition is wide enough to cover the
following acts:
1. X (male or female), places his or her mouth on female Y's vagina.
2. X (male or female), places his or her mouth on female Y's breast.
3. X (male or female), places his or her mouth on the mouth of Y, (male or
female). This means that if one person kisses another without the latter's consent, he or she
commits the crime of sexual assault.
4. X (male or female), places his or her mouth on ``any other part of the body of another person,
other than the genital organs or anus of that person or, in the case of a female, her breasts, which
could be used in an act of sexual penetration'' "sexual violation" - Examples of ``part(s) of the
body of another person .. which could be used in an act of sexual penetration'' are a person's
fingers or toes. If X sucks Y's toes (without Y's consent) his or her conduct also falls within the
definition of the act constituting the present crime.
5. X (male/female), licks the abdomen of Y (male/female). This act qualifies as long as that part
of Y's body which is licked or touched with the mouth is such that the licking or touching
``could ... cause sexual arousal or stimulation''. What is intended in the is sexual arousal or
stimulation of X, and not of Y.
The licking or touching is in respect of ``any other part of (Y's) body ... which could ... be
sexually aroused or stimulated thereby.'' The sexual stimulation referred to here is not that of
X, but of Y (the victim).
6. X places Y's mouth against the genital organs or anus of an animal.
(vi) causing masturbation the crime can also be committed by any act which causes ``the
masturbation of one
person by another person'' - if X uses his own hands to cause masturbation by Y.
The crime can also be committed by ``the insertion of any object resembling or
representing the genital organs of a person or animal, into or beyond the mouth of another
person''. Examples:
1. X, who may be either a male or a female, places a plastic representation
of a penis into Y's mouth.
2. X coerces/forces Y to place a representation of a penis into his (X's) own mouth.
(viii) ``Subjective indecency'' not sufficient - refers to conduct which may be
described as ``indecent'' from an objective point of view – viewed from the outside, without
having regard to X's motive or intention.
(b) Inspiring a belief that sexual violation will take place
The second way in which the crime of sexual assault may be committed, is by X
inspiring a belief in Y that Y will be sexually violated. The name of the present crime is
``sexual assault'' – the legislature intended this crime to be some species of the common-law
crime of assault.
assault can be committed in two ways:
(i) by an act which infringes Y's bodily integrity something which usually
takes the form of the actual application of force to Y; and
(ii) by the inspiring of a belief in Y that Y's bodily integrity is immediately to be
infringed.
Legislature wanted a similar principle to apply to crime of sexual assault. It is submitted that the
same principles applying to the form of assault known as the inspiring of a belief that Y's bodily
security is about to be infringed, also apply to this way in which sexual assault may be
committed. X may be either a male or a female, and the same applies to Y. The act of sexual
violation must take place without the consent of the complainant.
Whenever an accused is charged with sexual assault, ``it is not a valid defence for that accused
person to contend that a marital or other relationship exists or existed between him or her and
the complainant''. It is perfectly possible for a husband to commit sexual assault in respect of
his own wife.

7.3.2.3 Unlawfulness
X may rely on compulsion as a ground of justification excluding unlawfulness.
7.3.2.4 Intention
Intention is specifically mentioned X must know that Y had not consented to the sexual
violation. Same principles in element in the crime of rape also apply to the element of intention
in this crime.

Compelled sexual assault

7.3.3.1 Definition
Unlawfully and intentionally compels a third person to commit an act of sexual violation
with a complainant (Y) without his/her consent, is guilty of the offence of compelled sexual
assault.
The elements of the crime are the following: (a) compelling a third person (b) to
commit an act of sexual violation with another person (the complainant), (c) without the consent
of such third person, and (d) without the consent of the complainant; (e) unlawfulness and (f)
intention.
7.3.3.2 The act
A typical example where X tells Z that he will kill him if he does not commit some act of sexual
violation in respect of Y, where it is impossible for Z to escape his dilemma and where Z ends
up by yielding to the pressure and performs the deed.
Whenever an accused person is charged with this crime, ``it is not a valid defence for that accused
person to contend that a marital or other relationship exists or existed between him or her and the
complainant''. See above for similar elements & principles.

7.3.3.3 Unlawfulness
The unlawfulness of the act may conceivably be excluded if X is himself was
compelled to compel Z to perform the act upon Y.
7.3.3.4 Intention
The contents of this element have already been set out above in the discussion of
the corresponding element in the crime of rape.

Compelled self-sexual assault

7.3.4.1 Definition
A person who unlawfully and intentionally compels a complainant (Y) without Y's consent to:
(a) engage in
(i) masturbation;
(ii) any form of arousal or stimulation of a sexual nature of the female
breasts; or
(iii) sexually suggestive or lewd acts
with Y himself or herself;
(b) engage in any act which has or may have the effect of sexually arousing or
degrading Y; or
(c) cause Y to penetrate in any manner whatsoever his/her own genital organs
or anus,
is guilty of the offence of compelled self-sexual assault.
The elements of this crime are the following; (a) the compelling of somebody else;
(b) to engage in the conduct set out in the definition; (c) without the consent of the
other person; (d) unlawfulness and (e) intention.
Deals with situations in which there are only two persons, namely the perpetrator (X) and the
victim (Y). X compels Y to perform the ``indecent'' act upon Y himself or herself.

7.3.4.2 The act

Example of conduct punishable is where X tells Z that he will kill him if he does not self-
masturbate, where it is impossible for Z to escape his dilemma and where Z yields to the
pressure and performs the deed.
Y is forced to penetrate himself or herself, such as to insert his or her finger in his or her
vagina or anus.
``absence of consent'' is the same as for the crime of rape. Whenever an accused person is
charged with this crime, ``it is not a valid defence accused to contend that a marital or other
relationship exists or existed between him or her and the complainant''.
7.3.4.3 Unlawfulness
The unlawfulness may conceivably be excluded if X is himself or herself compelled to compel Y
to perform the act.
7.3.4.4 Intention
The contents of this element have already been set out above in the discussion of
the corresponding element in the crime of rape.

>> startSEXUAL OFFENCES AGAINST PERSONS 18 YEARS OR

OLDER
7.4.1 General

The Act creates various offences which may be committed in respect of persons
18 years or older. These offences are not discussed in detail. A brief summary of
the punishable acts follows:
(i) The unlawful and intentional compelling of a person 18 years or older
without his/her consent to witness sexual offences, sexual acts with another or self-
masturbation. It is irrelevant whether the act is performed for the sexual gratification of the
perpetrator (X) or for a third person (Z). The word ``sexual act'' is defined as either sexual
penetration or sexual violation (s1 (1)).
(ii) The unlawful and intentional exposure or display (or causing of exposure
or display) of the genital organs, the anus or female breasts of X or Z to a
person 18 years or older without his/her consent. It is irrelevant whether the act is performed
for the sexual gratification of the perpetrator (X) or for a third person (Z). This offence is
generally referred to as ``flashing''.
(iii) The unlawful and intention exposure or display (or causing the exposure or display) of
persons 18 years or older to child pornography. It is irrelevant whether the act is performed for
the sexual gratification of the perpetrator (X) or for a third person (Z). Of importance is that the
crime is committed even if Y consented to the exposure or display of the child pornography
to himself or herself.
(iv) The engagement of persons 18 years or older in sexual services for financial or other
reward, favour or compensation to Y or a third person (Z). For X to be convicted of this
offence the act must be performed
(a) for the purpose of engaging in a sexual act with Y (irrespective of
whether the sexual act is in actual fact committed or not); or
(b) by committing a sexual act with Y. The conduct of X is punishable even if Y consented to the
act. A person who engages the services of a prostitute (18 years or older, male or female)
may be convicted of this offence.
The section does not expressly criminalise the activity of Y, the prostitute. It is clear that Y's
conduct furthers or promotes the criminal activity of X, and Y may be convicted of being an
accomplice to the crime committed by X.

INCEST (Criminal Law 387±390)

7.5.1 Definition
``Persons who may not lawfully marry each other on account of consanguinity, affinity or an
adoptive relationship and who unlawfully and intentionally engage in an act of sexual
penetration with each other; are, despite their mutual consent to engage in such act, guilty of
the offence of incest.''
The elements of the crime are the following: (a) an act of sexual penetration (b) between two
people who may not lawfully marry each other on account of
consanguinity, affinity or adoptive relationship (c) unlawfulness and (d) intention.
7.5.2 The act
The expression ``sexual penetration'' is defined in discussion of rape. The crime is committed if
the sexual penetration takes places between people who may not lawfully marry each other on
account of consanguinity, affinity or an adoptive relationship.
Section 12(2) reads as follows:
``(2) For the purposes of subsection (1) ±
(a) the prohibited degrees of consanguinity (blood relationship) are the following:
(i) Ascendants and descendants in the direct line; or
(ii) collaterals, if either of them is related to their common ancestor
in the first degree of descent;
(b) the prohibited degrees of affinity are relations by marriage in the
ascending and descending line; and
(c) an adoptive relationship is the relationship of adoption as provided
for in any other law.''
The Act does not spell out in detail what is meant by consanguinity, affinity and adoptive
relationship for the purposes of incest. The courts will probably consult previous authoritative
case law in this regard. These cases are discussed in Snyman 387±390. You are advised to read
these parts in Snyman in order to get more clarity on the circumstances in which such
relationships indeed exist. You must also study this section in Snyman for examination
purposes.
7.5.3 Unlawfulness
>>> startThe intercourse must be unlawful not committed under duress. Consent by the other
party is no defence; where both parties have consented, both parties are in fact guilty of the
crime.
7.5.4 Intention
The parties must not only intend to have sexual intercourse with each other but they must also be
aware of the fact that they are related to each other within the prohibited degrees of
consanguinity, affinity or adoptive relationship.

BESTIALITY (Criminal Law 390±391)

7.6.1 Definition
A person who unlawfully and intentionally commits an act-
(a) which causes penetration to any extent whatsoever by the genital organs
of ±
(i) X into or beyond the mouth, genital organs or anus of an animal; or
(ii) an animal into or beyond the mouth, genital organs or anus of X; or
(b) of masturbation of an animal, unless such act is committed for scientific
reasons or breeding purposes, or of masturbation with an animal,
is guilty of the offence of bestiality (s 13).
The elements of the crime are the following: (a) causing penetration of the genital
organs of X into genital organs, etc, of an animal or vice versa or committing an act
of masturbation of an animal; (b) unlawfulness and (c) intention.
You are not required to know this crime in detail. You only have to know the
definition of this crime and take note that the court in M 2004 held that the existence of such
a crime is not unconstitutional. The decision of the court is discussed by Snyman on p. 391.
You are required to study the discussion of Snyman of this case for examination purposes.

SEXUAL OFFENCES AGAINST CHILDREN

7.7.1 General
(Criminal Law 392±398)
Chapter 3 of the Act deals with sexual offences against children - most important of these crimes
is sexual penetration with children below the age of 16 years even with their consent.

Consensual sexual penetration of children

7.7.2.1 Definition
A person (X) who commits an act of sexual penetration with a child (Y) is, despite the consent
of Y to the commission of such an act, guilty of the offence of having committed an act of
consensual sexual penetration with a child - the word ``child'' in the is defined as ``a person 12
years or older but under the age of 16 years''.
The elements of this crime are the following: (a) the commission of an act of
sexual penetration (b) with a person between the ages of 12 and 16 years of age (c)
unlawfulness and (d) intention.
This crime is usually referred to as ``statutory rape''. If X commits an act of sexual
penetration with a child below the age or 12, he or she will be guilty of rape,
because any alleged ``consent'' by such a young child is regarded by the law as invalid.
Sexual penetration of a child between the ages of 12 and 16 is criminalised, because such a
child is not yet mature enough to properly appreciate the implications and consequences of
sexual acts, especially sexual penetration of a female by a male. They should therefore be
specially protected. Consent by the child to the commission of the act is no defence. If the act
takes place without any consent by the child, X commits the more serious crime of rape.

7.7.2.2 The act

Child must be between of 12 and 16 years of age at the time of the commission of the act. The
definition does not require X to be above a certain age. If X is also a child (a person 12 years or
older but under the age or 16 years), the prosecution must be authorised in writing by the
national director of public prosecutions and both X and Y must be prosecuted. The reason for
this is that it is difficult to decide whether a prosecution is feasible if both parties were 14
years of age at the time. Such cases occur regularly. A prosecution may sometimes cause
more harm than good, and some form of educational treatment by - welfare authorities may
prove to be
more beneficial than the institution of criminal proceedings.

Two defences which X may rely on when charged with this crime.
. First defence: Y deceived X about her age - X reasonably believed that Y was 16 years or
older. This does not apply if X is related to Y within the prohibited degrees of
blood, affinity or an adoptive relationship. It is submitted that the prosecution bears the onus
of proving that X was not deceived into believing that Y was 16 years or older, but that there is
an evidential onus on X to raise the defence and lay a factual foundation for the existence of
the belief.
. Second defence: X and Y both children - it is a valid defence for somebody charged with this
crime to contend that both X and Y were ``children'' (between the ages of
12 and 16 years) and the age difference between them was not more than 2 years at the time
of commission of the crime. If X was 15 years old at the time of the act, he/she will have a valid
defence if Y was 13 years old at that time, but not if Y was 12 years old at that time.

7.7.2.3 Unlawfulness
The act must be unlawful - compulsion may exclude the unlawfulness - unlawfulness can be
excluded by official capacity where a medical doctor who examines the child places his or her
finger in the child's vagina, anus or mouth.
7.7.2.4 Negligence a sufficient form of culpability
Intention is not specifically mentioned as a requirement for a conviction of the present crime. It
often happens that X bona fide believes female Y to be at least 16 years of age, whereas she is
just below the age of 16 - X can not rely on the defence that he has made a mistake as
regards Y's age. X's belief that Y was already 16 years old, must be reasonable. The use of the
word ``reasonable'' brings an objective element into the inquiry which means that X can be
held liable if the reasonable person would have realised that Y is already 16 years old. X may
be found guilty of the crime if the state proves only negligence.

FEEDBACK
Section 56(2)(a) of the Sexual Offences Act 2007, provides that an accused to a
charge of rape is entitled to contend that a child (a person who is 12 years and
older but under 16 years of age) deceived him into believing that she was 16 years
or older at the time of the alleged commission of the offence. In order for this
contention to be a valid defence, the accused must have reasonably believed that
the child was 16 years or older at the relevant time. This means that it is not
enough that the accused subjectively believed that the complainant was 16 years
or older (lack of intention is insufficient). His belief must be one that would be
shared by the reasonable person in his position. The state must prove beyond reasonable
doubt that a reasonable person would have realised that Y was not yet 16 years old. What
would count against X in this matter is the fact that he was close to some of Y's friends, who
are high school students themselves. A reasonable person in his position would have sought
more information about Y from her friends before deciding to have sexual intercourse with her.
Consensual sexual violation of children
The only difference between this crime and that of consensual sexual penetration of
children are that the child between the ages of 12 and 16 years is not sexually penetrated, but only
sexually violated. The two special defences created, apply also to this crime. The same remarks
apply to the elements of unlawfulness and intention, as well as to the consent of the director of
public prosecutions which must be obtained if X is below the age of 16 years of age. As in the
other crime, X may be either male or female and the same applies to Y.
7.7.4 Sexual exploitation of children

Sexual exploitation of children

7.7.4.1 Definition
The word "child", as used in the section, means a person under the age of 18 years.
(a) Sexual exploitation of a child
Any person who engages the services of a child (with/without his/her consent) for sexual favours
for reward, irrespective of whether the sexual act is committed or not, is guilty of the crime of
sexual exploitation of a child. X commits the crime if he obtains services of Y for sex for reward,
even if Y is a consenting 17-year-old.

(b) Involvement in the sexual exploitation of a child

A person (X) who offers the services of a child complainant (Y) to a third party (Z), with or
without the consent of Y, for financial or other reward, for purposes of the commission of a
sexual act with Y by Z, or by detaining Y by threats for purposes of the commission of a sexual
act, is guilty of the crime of being involved in the sexual exploitation of a child.
(c) Furthering the sexual exploitation of a child

Any person who allows/permits the commission of a sexual act by Z with a child Y, with or
without the consent of Y, or permits property which he or she (X) owns to be used for the
commission of a sexual act with a child Y, is guilty of furthering the sexual exploitation of a
child.
(d) Benefiting from sexual exploitation of a child
A person, who intentionally receives financial or other reward from the commission of a sexual
act with a child complainant by a third party, is guilty of benefiting from the sexual exploitation
of a child.
(e) Living from the earnings of sexual exploitation of a child
A person who intentionally lives wholly or in part on rewards or compensation for the
commission of a sexual act with a child (Y) by the third person (Z), is guilty of living from the
earnings of the sexual exploitation of a child.
(f) Promoting child sex tours
A person who organises any travel arrangements for a third person (Z) with the intention of
facilitating the commission of any sexual act with a child (Y) or who prints or publishes
information intended to promote such conduct, is guilty of promoting child sex tours.
Sexual grooming of children
Section 18 criminalises a long list of acts which all amount to requesting, influencing, inviting,
persuading, encouraging or enticing a child (Y) – a person under the age of 18 years indulge in
a sexual act or to diminishing his or her resistance to the performance of such acts. A person
commits the crime of sexual grooming of a child if
he/she, amongst other things, performs any of the following acts:
. display of an article to Y intended to be used in the performance of a sexual act, the display
of pornography or a publication or film which is intended to encourage the child to commit a
sexual act
. commission of any act with or in the presence of Y with the intention to
encourage the child to commit a sexual act with him/her or a third person or
to reduce unwillingness on the part of Y to perform such act.
Further acts which amount to the offence is specifically aimed at the prevention of
grooming of a child over the internet. Punishable acts are the following:
. to arrange a meeting with the child (in any part of the world) in order to
commit a sexual act with the child
. to invite the child to travel to meet X in order to commit a sexual act with the
child.
Displaying of pornography to children; the use of children for child pornography and the
benefiting from child pornography
May be committed in respect of children younger than 18 years old Section 19 prohibits a person
from unlawfully and intentionally exposing or displaying child pornography to persons
younger than 18 years. It is a crime to use a child for, or benefiting from child pornography
- The section targets different role players that are actively involved
in obtaining children and using them in order to create child pornography. It does not matter
whether Y consents to the act or not, or receives any benefit or reward from such proposed
conduct – the aim is to punish all role players who benefit in any manner from their
involvement in child pornography.

Compelling children to witness sexual crimes, sexual acts or self-masturbation

Section The offence applies to children under the age of 18 years old.
7.7.8 Exposing or display of genital organs, anus or female breasts to children
(``flashing'')
The offence is the same as the offence in respect of adults except for one important difference.
For adults the act must be performed without the consent of the victim. For children, the
offence is committed even if the child consented - with or without the consent of the child.

SEXUAL OFFENCES AGAINST MENTALLY DISABLED PERSONS

7.8.1 General (Criminal Law 398±400)
Mentally disabled persons are vulnerable to sexual exploitation and the need
protection by the law.
7.8.2 Definition
``Person who is mentally disabled'' is defined as follows in section 1(1):
``a person affected by any mental disability, including any disorder or disability
of the mind, to the extent that he or she, at the time of the alleged commission of
the offence in question, was ±
(a) unable to appreciate the nature and reasonably foreseeable consequences
of a sexual act;
(b) able to appreciate the nature and reasonably foreseeable consequences of
such an act, but unable to act in accordance with that appreciation;
(c) unable to resist the commission of any such act; or
(d) unable to communicate his or her unwillingness to participate in any
such act.''
The offences created in respect of mentally disabled persons are similar to the
offences created in respect of children and they are not discussed here again.
FAILURE TO REPORT SEXUAL OFFENCES AGAINST CHILDREN AND
MENTALLY DISABLED PERSONS
A person who has knowledge that a sexual offence has been committed against a child,
must report such knowledge immediately to a police official. A person who fails to report
such knowledge is guilty of an offence - obligation on any person to report knowledge,
reasonable belief or suspicion that a sexual offence has been committed against a
person who is mentally disabled.
TRAFFICKING IN PERSONS FOR SEXUAL PURPOSES
A person who traffics in any person (Y) for sexual purposes without that person's consent, is
guilty of the offence of trafficking in persons for sexual purposes - encouraging, incitement,
instigation and other preparatory actions amount to the offence of involvement in trafficking in
persons for sexual purposes.
ATTEMPT, CONSPIRACY AND INCITEMENT
Any person who is involved in the commission of a sexual offence by way of attempt,
conspiracy, aiding or abetting, inducement, incitement, instigation, instruction,
commanding, counselling or procurement, is also guilty of an offence.

SUMMARY

General
(1) The Sexual Offences Act 32 of 2007 amends all aspects of the laws relating
to sexual offences and addresses them in a single statute by, amongst others,
repealing the common-law offence of rape and replacing it with two new statutory
offences of rape and compelled rape. The Act also repeals the common-law offence of
indecent assault and replaces it with a statutory
offence of sexual assault.
(2) The definitions of the statutory offences of rape are gender-neutral. The
statute targets all forms of sexual penetration committed without consent
irrespective of gender.
(3) ``Sexual penetration'' is defined broadly in s 1 in the Act and includes ``any
act which causes penetration''.
(4) Consent is defined in section 1 of the Act as ``voluntary or uncoerced
agreement''. A list of circumstances in respect of which Y does not
voluntarily or without coercion agree to an act of sexual penetration are
provided in the Act.
(5) Absence of consent is a definitional element of most of the offences in the
Act. The interpretation of this element is determined by the definition of
``consent'' in section 1 of the Act.
Rape
(6) Definition of rape (s 3)
(7) Definition of ``sexual penetration'' (s 1)
(8) Definition of ``absence of consent'' (s 1(2) and (3))
(9) Sentence that may be imposed for rape
Compelled Rape
(10) Definition of compelled rape (s 4)
(11) X may be convicted as a perpetrator of this crime even if he/she did not
perform any act of sexual penetration with his or her own body with the
complainant. Furthermore, his/her liability is not dependent on the existence
of a perpetrator (it is not accessory in character).
(12) Sentence that may be imposed for compelled rape
Sexual Assault
(13) Definition of sexual assault (s 5(1))
(14) Definition of sexual violation (s 1)
(15) The act required for the offence of sexual assault includes the inspiring of a
belief in the complainant that he/she will be sexually assaulted (s 5(2)).
Compelled sexual assault
(16) Definition of compelled sexual assault (s 6)
Compelled Self-Sexual Assault
(17) Definition of compelled self-sexual assault (s 7)
Sexual offences in respect of person 18 years and older
Compelling another to witness sexual crimes or sexual acts
(18) Definition (s 8). Included in these offences are the compelling or causing of a
person 18 years or older without his/her consent, to witness sexual offences,
sexual acts or self-masturbation
``Flashing''
(19) Definition (s 9). The crime is committed without the consent of the victim.
Displaying child pornography
(20) Definition (s 10). The crime is committed irrespective of whether Y consents
to the displaying or not.
Engaging sexual services for reward
(21) Definition (s 11). Both parties consent to the act. Meaning of "engaging" Ð
no actual sexual act required.
Incest
(22) Definition (s 12)
Bestiality
(23) Definition (s 13)
(24) Such crime held to be not unconstitutional (Case of M).
Sexual offences against children
Consensual sexual penetration of children between the ages of 12
and 16 years
(25) Definition (s 15)
(26) These crimes are committed regardless of the consent of the child
concerned.
(27) Section 56(2)(a) provides that an accused person charged with either one of
these offences may contend that the child deceived him/her into believing
that he/she was 16 years old or older at the time when the offence was
committed. To be a valid defence, the accused's belief must have been
reasonable, namely one shared by reasonable person in his/her position.
Section 56(2)(b) provides a defence if both parties were children.
Consensual sexual violation of children
(28) Section 16. Same defences as above are applicable.
Sexual exploitation of children
(29) Offence that is widely defined, and includes acts of involvement in sexual
exploitation; furthering of sexual exploitation; benefiting from sexual
exploitation; living from the earnings of sexual exploitation and promoting
child sex tours (s 17).
Sexual grooming of children
(30) An offence comprising a number of sub-crimes (s 18): acts of promoting or
facilitating the grooming of a child; and acts amounting to active grooming of
children. Further acts which amount to the offence are, inter alia, aimed at
preventing the grooming of a child over the Internet.
Display of child pornography to children under 18 years and the
use of children for child pornography or benefiting from child
pornography
Compelling children under 18 to witness sexual acts (``flashing'')
(31) The offence is committed even with the permission of the child.
Sexual offences against mentally disabled persons
(32) Definition of a mentally disabled person (s 1).
Failure to report sexual offences against children and mentally
disabled persons (s 54(1) and (2)).
Trafficking in persons for sexual purposes.
TEST YOURSELF
(1) Discuss the changes that have been brought about by the Sexual Offences Act 2007,
relating to the common-law crime of rape.
(2) Discuss the statutory crime of rape.
(3) Discuss the statutory crime of compelled rape.
(4) Discuss in detail the meaning of the requirement of consent in terms of the Act.
(5) Discuss the minimum sentences that may be imposed for the crime of rape and
compelled rape.
(6) Can a person who did not perform an act of sexual penetration with the complainant
with his/her own body be convicted as a perpetrator on a charge of compelled rape?
(7) Name four prohibited types of conduct which constitute ``acts of sexual penetration''.
(8) Define the crime of sexual assault.
(9) Define the crime of compelled sexual assault.
(10) Give examples of conduct which amount to ``sexual violation''.
(11) Explain the differences between the concepts ``sexual penetration and sexual
violation''.
(12) Define the crime of compelled sexual assault and compelled self-sexual assault.
(13) Discuss the elements of the crimes of ``compelled sexual assault'' and ``compelled
self sexual
assault''.
(14) Define the crime of ``engaging sexual services for reward''.
(15) Define the crime known as ``flashing'' in respect of adults.
(16) Define the crime of incest.
(17) Name the three prohibited degrees of relationship through which the crime of incest
can be committed.
(18) Consider whether the crime of bestiality can be regarded as constitutional.
(19) Discuss the crime of ``consensual sexual penetration of children''.
(20) Discuss the crime of ``consensual sexual violation of children''.
(21) Discuss the two defences that an accused may rely on if charged with any of the
offences mentioned in (19) and (20).
(22) Name five ways in which the crime of sexual exploitation of children can be
committed.
(23) Briefly discuss the crime of sexual grooming of children.
(24) Briefly discuss the crime known as ``flashing'' in respect of children.
(25) Discuss the sexual offences that may be committed against mentally disabled people.
(26) Discuss whether a person who fails to report knowledge of the commission of a
sexual offence against a child or a mentally disabled person may be held criminally
liable.
(27) Discuss the offence of ``trafficking in persons for sexual purposes''.

STUDY UNIT8 Bigamy and abduction

BACKGROUND
Bigamy and abduction - these two crimes are related to the protection of family life.
8.2 BIGAMY
You must study the discussion of this offence in Criminal Law 401±403 on your
own.
The elements of this crime are the following:
(1) purporting to be a party to a marriage ceremony which would bring about a
valid marriage between that party and someone else
(2) the perpetrator must already be married
(3) unlawfulness
(4) intention
Read the discussion on the definition of the offence in footnote 1 on page 401 of
Criminal Law. Tape. ( about already married word games)

ABDUCTION
Abduction is regulated by common law as well as by statute. Up to 1957 abduction was a
common-law offence but its scope was extended by section 13 of the Sexual Offences Act 23 of
1957. This section does not replace the common-law crime of abduction. The common-law and
statutory-law crimes of abduction exist side by side, and in fact do not differ to any great
extent from each other. We shall discuss the two crimes separately.
8.3.1 Common-law abduction (Criminal Law 403±407)
8.3.1.1 Definition
A person commits abduction if he or she unlawfully and intentionally removes
an unmarried minor from the control of his or her parents or guardian,
without their consent, intending that he or she, or somebody else, may marry or
have sexual intercourse with the minor.
8.3.1.2 Origin and character of crime
Women especially minors played subordinate roles in society and their parents or guardians
exercised authority over them. They had little freedom of movement, and were regarded as
economic assets of their parents. Purpose of crime was to prevent outsiders from removing minor
from authority of parents depriving parents of their rights economic over minor. The crime
protected parents' right to consent to their daughter's marriage. Scope of crime was later extended
to protect parents' rights in respect of their sons as well.
Nowadays minors are, of course, more independent of parental authority. The crime still exists
and protects rights of parents to consent to marriage of their minor children, as well as to exercise
control over where they stay. The importance of the crime has diminished, it still serves a
purpose, as far as it punishes unscrupulous persons who entice minors to leave their parental
homes in order to make them available for the purposes of engaging in indiscriminate sex (often
with the minor's consent and
for remuneration).
8.3.1.3 Elements of the crime

8.3.1.3 Elements of the crime

The elements of the crime are the following:
(1) the removal
(2) of an unmarried minor
(3) from the control of his or her parents or guardian
(4) with the intention to marry or have sexual intercourse with the minor
(5) without the consent of the parents or guardian
(6) unlawfulness
(7) intention

8.3.1.4 Removal
Perpetrator (X) must remove the minor (Y) from one place to another. In majority of reported
cases X is a male and Y (the minor) a female. The removal need not be forcible in almost all
cases of abduction Y consents to the removal. It is not required that X should himself effect
the removal or be present at the time of removal. It is sufficient if X and Y arrange to meet
at a place away from the house of the parents (Nel 1923 Jorgenson 1935)
8.3.1.5 Person removed must be an unmarried minor
The person who is removed (Y) must be unmarried and a minor, and male or female.
8.3.1.6 There must be a removal from the control of the parents or guardian
Y must be removed from control of her parents/guardian. The legal interest protected by this
crime is the authority of the parents or guardian over the minor. Abduction is committed
against them, and not against the minor, Y's consent to the removal does not afford X a
defence. It is possible parents no longer exercise authority or control over Y - where Y has left
the parental home to go and live and work elsewhere, and the parents no longer even know where
Y finds herself and no longer care what she does. If this is the case, X does not commit
abduction if he takes Y from where she happens to be staying to another place Bezuidenhout
1971. Although in such a case parents de jure (legally) still have the right to refuse consent
to Y's marriage, de facto (in actual fact) they no longer exercise any authority over Y.
8.3.1.7 Intention to marry or have sexual intercourse with the minor
The crime is only committed if X removes Y with a certain aim in mind. X himself either
marry Y or have sexual intercourse with her. For the crime to be complete, it is not required
that the marriage or sexual intercourse should actually have taken place. All that is
required is an intention on the part of X to achieve one of these aims. Mere temporary
removal of a girl from her home in order to have sexual intercourse with her is not yet
abduction. X must intend to remove Y from her
home either permanently or for a substantial period. If a man wishes to have sexual
intercourse with a girl, but it is impractical for him to do so at her parents' home where she lives,
the couple then drive to another place for the purpose of sexual intercourse and immediately
thereafter he brings her back to her home, he does not commit abduction. Such conduct may
amount to seduction, but mere seduction is not the same as abduction. (Seduction does not
constitute a crime.) In order to distinguish between seduction and abduction, the removal
must last at least a substantial period L 1981. In Ismail 1943 it was held that a period of 24
hours was sufficient, and in Killian 1977 a period of only 8 hours was sufficient. The intention
to marry Y or have sexual intercourse with her must exist at the time of the removal. If the
removal is for an innocent purpose, and X only decides thereafter to have sexual
intercourse, the crime is not committed Sashi 1976. It is important to note that the crime is also
committed if it is X's intention that someone other than himself should marry Y or have sexual
intercourse with her (Adams 1911). This draws the attention to important and sinister aspect
of the crime, namely the situation where unscrupulous persons entice minors to leave their
homes in order to engage in indiscriminate sex with strangers (often for remuneration
payable to the minor).

8.3.1.8 Without the consent of the parents or guardian

Removal must take place without the consent of the parents or guardian. Whether or not Y has
consented to the removal, is immaterial. In practice Y most often consents to her removal, yet the
crime is committed even if she does not consent. If Y does not consent, then, apart from
abduction, X can also be guilty of the more serious crime of kidnapping. What must be lacking
is the consent of the parents or guardian to both the removal and the purpose of the removal.
8.3.1.9 Unlawfulness
There must be no ground of justification for X's conduct. The removal may be justified by
necessity - where X acts under compulsion.
8.3.1.10 Intention
The form of culpability in this crime is intention. X must know that Y is an unmarried minor
(Churchill 1959) and that Y's parents have not consented to the removal (Sita 1954).
Statutory abduction
Sexual Offences Act 23 of 1957 defines abduction as follows: Any person who takes or detains or
causes to be taken or detained any unmarried male or female under the age of 21 years out of the
custody and against the will of his or her father or mother or guardian, with intent that such
person or any other person, whether a particular person or not, may have unlawful carnal
intercourse with such unmarried male or female, shall
be guilty of an offence.
The term ``guardian'' includes any person who has in law or in fact the custody or control of
the unmarried male/female - ``unlawful carnal intercourse'' means carnal intercourse other
than between husband and wife.
The difference between common-law abduction and statutory abduction
(1) In common-law abduction the purpose of the removal of the minor is to have
intercourse with or to marry the minor. Statutory abduction - is possible only if the purpose of
the removal is to have intercourse with the minor.
(2) In statutory abduction the term ``guardian'' has an extended meaning: it includes people
who have only the factual custody or control of the minor. Statutory abduction did not replace
common-law abduction: the latter crime is still in existence. The state may elect with which
crime statutory or common-law abduction it will charge an accused.

ACTIVITY
X, a 40-year-old female, entices Y, a 12-year-old girl, to leave her home and
work as a prostitute for X and her husband. Y leaves her home voluntarily
but without her parents' consent. What crime does X commit?
FEEDBACK
X commits either statutory or common-law abduction.
SUMMARY
Bigamy
(1) Definition of bigamy Ð see definition in Criminal Law 401.
(2) Proof of sexual intercourse is not required for a conviction of bigamy. What
is required are the four requirements or elements of the crime set out above.
Abduction
(3) There are two forms of abduction, namely common-law abduction and
statutory abduction. Both forms of abduction were also defined.
(4) Seven different elements can be identified in the crime of common-law
abduction.
(5) Finally, the two most important distinctions between common-law abduction
and statutory abduction were highlighted.
TEST YOURSELF
(1) Define bigamy.
(2) Write short notes on the following requirements for a conviction of bigamy:
(a) that the perpetrator was already married
(b) that there should have been a second ``marriage ceremony''
(c) that the perpetrator's conduct was unlawful
(d) that the perpetrator acted intentionally
(3) Define common-law abduction.
(4) Write short notes on the following requirements for a conviction of common-law
abduction:
(a) that the minor was ``removed'' from the control of the parents or guardian
(b) with what intention the removal must take place
(5) Define statutory abduction.
(6) Explain the difference between common-law abduction and statutory abduction

Study Unit 9 Crimes against the person

Crimes against life and potential life

MURDER
9.2.1 General
You must study the discussion of this crime in Criminal Law 447±451 on your
own.
The elements of this crime are:
(1) the causing of the death
(2) of another person,
(3) unlawfully
(4) intentionally
Elements (1), (3) and (4) are not discussed in detail in Criminal Law, since the concepts
``causation'', ``unlawfulness'' and ``intention'' have been dealt with the general principles of
criminal law. The only new element which has not yet been discussed is the requirement that
``another person'' must be killed the object of this crime must be a living human being.
9.2.2 The punishment for murder
Imprisonment the only type of sentence
In Makwanyane 1995 Constitutional Court held that the death sentence for murder is
unconstitutional, because it amounts to an unjustifiable violation of the right to life, the right to
dignity and the right not to be subjected to cruel, inhuman or degrading punishment. Neither may
a court order corporal punishment to be imposed upon X. This follows from the decision of the
Constitutional Court in Williams 1995. A fine for murder is not appropriate punishment only
type of sentence murder is imprisonment.

Imprisonment for life must sometimes be imposed

Before 1997 the courts used to have free discretion. The Criminal Law Amendment Act
1997 now provides for certain mandatory minimum periods of imprisonment to be imposed
by a court upon convicting X of murder – reason is attempt by
legislature to combat murder by deterring would-be murderers and by exacting more suitable
retribution for the commission of this crime (Montgomery 2000). In Dodo 2001
(CC) the Constitutional Court rejected the contention that the provisions of section 51 are
unconstitutional.

In the following circumstances a court is now bound, in terms of section 51, to

sentence a person found guilty of murder to imprisonment for life:
(1) if the murder was planned or premeditated
(2) if Y was a law enforcement officer (such as a member of the police) who was
murdered while performing his or her function as a law enforcement officer
(3) if Y was somebody who had given evidence (or was likely to give evidence)
in a trial in which somebody had been accused of a serious offence (in actual
fact the Act speaks of an offence referred to in Schedule 1 of the Criminal
Procedure Act; this Schedule contains a list of offences which may be
described as serious)
(4) if X committed the murder in the course of committing rape
(5) if X committed the murder in the course of committing robbery with
aggravating circumstances
(6) if the murder was committed by a group of persons acting in the execution of
a common purpose.

Other minimum periods of imprisonment must sometimes be imposed

If none of the circumstances set out is present, X does not qualify for the mandatory
imprisonment for life. Section 51 provides that in such a situation a court is obliged to
impose the following minimum periods of imprisonment:
(1) fifteen years in respect of a first offender
(2) twenty years in respect of a second offender
(3) twenty five years in respect of a third or subsequent offender.

Circumstances in which a court is not bound to impose a prescribed minimum sentence

Section 51 the legislature has created a mechanism whereby a court may be freed from the
obligation of imposing a minimum sentence. A court is not bound to impose imprisonment for
life or for one of the minimum periods of imprisonment set out above, if there are ``substantial
and compelling circumstances'' which justify the imposition of a lesser sentence than the
prescribed one. If such circumstances exist, a court may then impose a period of imprisonment
which is less than the period prescribed by the legislature. ``Substantial and compelling'' are
important words when applying subsection 3(a). Ensure that you remember these words for
examination purposes. Do not endeavour to use any other words which may connote more
or less the same idea.
In Malgas 2001 the Supreme Court of Appeal laid down a number of guidelines to be used in
order to determine whether in a given case there are ``substantial and compelling
circumstances'' justifying the imposition of a lesser sentence than the prescribed one. We do
not intend setting out the whole list of guidelines, except to draw attention to what is possibly the
most important one of them all. This was formulated as follows by the court (at our emphasis):
If the sentencing court on consideration of the circumstances of the particular
case is satisfied that they render the prescribed sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of society, so that an injustice
would be done by imposing that sentence, it is entitled to impose a lesser sentence.

CULPABLE HOMICIDE
Must study the discussion on this crime in Criminal Law 451±453 on your own.
The elements of this crime are:
(1) the causing of the death
(2) of another person,
(3) unlawfully and
(4) negligently
Notice only difference between murder and culpable homicide is in culpability required for
each - murder, intention is required, culpable homicide X must have acted negligently in
causing the death of the deceased.
SUMMARY

(1) Murder is the unlawful and intentional causing of the death of another
person, while culpable homicide is the unlawful and negligent causing of the
death of another person.
(2) For murder and culpable homicide it is required that ``another person'' be
killed.
TEST YOURSELF
(1) Define murder and culpable homicide and distinguish between the two.
(2) Write short notes on the requirement that the death of ``another person'' must be
caused in order to constitute murder.
(3) Name the requirements for a conviction of culpable homicide.
(4) Discuss in which circumstances a court is bound, in terms of s 51 of the Criminal Law
Amendment Act 105 of 1997, to sentence a person found guilty of murder to
imprisonment for life.

STUDY UNIT10 Crimes against bodily integrity

ASSAULT (Criminal Law 455±463)

10.1.1 Definition
A person commits assault if she unlawfully and intentionally
(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
10.1.2 Elements of the crime
The elements of this crime are the following:
(1) the application of force (or the inspiring of a belief that force is to be
applied)
(2) unlawfulness
(3) intention
10.1.3 Historical
In common law, assault in the sense of an attack or threat of attack to the person of another was
not known as an independent crime. There was a comprehensive crime, known as iniuria,
which included all kinds of violations of the rights of personality. Under the influence of
English law, assault in our law developed into an independent crime. An iniuria committed
against another's dignity (dignitas) is punished as crimen iniuria; an iniuria against
another's good name (fama) is punished by us as criminal defamation. Assault is nothing
other than iniuria against the physical integrity (corpus) (dignity and name) of another.
10.1.4 Ways in which the crime can be committed
The act of assault may take different forms. First application of force to the person (body) of
another (direct or indirect). Secondly, it may inspire fear.

10.1.5 Application of force direct

Through the application of force - distinguish between direct and indirect application of force.
Direct application of force.
Most common way in which the crime can be committed - corresponds most closely to the
ordinary lay person's idea of assault. For example:
. X punches Y with her fist, or
. kicks her, or
. hits her with a stick, or
. throws a stone at her which strikes her
The fact that Y does not feel much or any physical pain, is irrelevant. X may commit the crime
even if she only spits in Y's face or trips her so that she stumbles.
10.1.6 Application of force indirect
In this form of the crime X commits some act which results in Y's physical integrity being
infringed, as in the following examples:
. X sets a vicious dog on Y, or
X snatches away a chair from under Y just as she is about to sit on it, resulting
in Y's falling to the ground, or
. X derails a train on which Y is traveling, or
. X frightens a horse on which Y is riding so that Y falls from the horse.

Note two examples case law of convictions of assault where the application of force was
indirect:
(1) In Marx 1962 X gave three glasses of wine to drink to each of two children, five and
seven years old. The children drank the wine and became sick as a result. The younger child, for
example, could not walk at all and was in a semi-conscious condition. X was convicted of assault.
The fact that the harm or discomfort was internal rather that external, was held to be
irrelevant.
(2) In A 1993 X, a policeman, forced Y, whom he had just arrested and taken to the police
station, to drink his own urine. X was convicted of assault. The court rejected the proposition
that, since urine was not poisonous or dangerous, the forced drinking of it could not constitute
assault, holding that the forced drinking of any substance constitutes assault.

Inspiring fear of immediate force

Inspiring fear/belief in Y that force is immediately to be applied to her constitutes an act of
assault. There is no physical contact with or impact on Y's body – this is unusual way of
committing assault - departs from the lay person's conception of what constitutes assault. Take
good note of the rules below setting out the preconditions
for holding somebody liable for assault in this form.
For a person to be convicted of assault in this form the following rules apply:
(1) The threat must be one of violence to the person of Y. Thus a threat by X to
damage Y's property is not sufficient.
(2) The threat must be one of immediate violence. Thus a threat by X to cause Y
some physical harm in the future would not qualify as assault in this form.
(3) The threat must be one of unlawful violence. If X is entitled by law to threaten Y with
violence should Y not behave in a certain manner (e.g leave X's house or premises), she does not
commit assault if she threatens Y. Thus X may always threaten Y to use force to defend
herself or her property.
(4) Y (the complainant) must subjectively believe that X intends to carry out her threat and is able
to do so. The essence of this type of assault is the intentional planting of fear into Y. If Y does
not in fact fear the threat, no assault is committed.
ACTIVITY
X threatens to shoot Y, but the object X is holding in her hand is not a real
pistol, but only a toy pistol. Y knows that the object X is brandishing is only a
toy pistol. Consequently Y is not put in any fear. Does X commit assault
upon Y?
FEEDBACK
X does not commit assault, because Y did not fear any immediate bodily harm.
Even if X happens to believe that the object she is holding in her hand is a real,
loaded pistol whereas it is in fact only a toy pistol, but Y knows that the object is
only a toy pistol, X does not commit assault, because Y did not fear any
immediate bodily harm.

(5) In previous descriptions of this type of assault it was required that X's
conduct should contain some ``act or a gesture'' - the crime could not be committed by words
alone. The general consensus of opinion among modern writers is that X commits this form of
assault even though she does not perform any act or gesture but merely threatens Y verbally.
Thus if Y turns a corner to be confronted by a motionless X who, with a gun in her hand,
commands: ``Hands up!'', X commits assault.

Unlawfulness
The use of force or the inspiring of fear must be unlawful. This means that there must be no
ground of justification for X's act. The following are examples of
instances in which X's act would be justified (ie not unlawful):
(1) Private defence. Y threatens to kill or assault X. In order to defend herself X
uses force against Y.
(2) Official capacity. X is a police official who uses force to arrest Y, who has
committed a crime in her presence.
(3) Parental authority. X gives her naughty seven-year-old daughter a moderate
hiding in order to discipline her.
(4) Consent.
(a) X is a surgeon who cuts open Y's body in the course of the performance of
an operation upon Y to which Y has consented.
(b) Y is a sports lady (netball or hockey player) who is injured by X in the
course of a sporting contest in respect of which Y has voluntarily
consented to take part.
Intention
X must have intention to apply force to the body of another or to inspire in her
fear of the application of force. This implies the following:
(1) The intention may take the form of either direct intention, indirect intention
or dolus eventualis.
Example of an assault in which X had intention in the form of dolus eventualis is the following:
X throws stones at birds. There are children around playing. She foresees the possibility that if
she throws a stone at a bird, the stone may miss the bird and strike one of the children. Although
she hopes this will not happen, she nevertheless decides to go ahead, unperturbed by the
possibility of her injuring a child. She throws a stone, which misses the bird she aimed at and
strikes a child.
(2) In cases of assault which take place by means of the inspiring of fear. X must know that her
conduct will inspire fear in Y.
(3) According to the ordinary principles relating to intention, X's intention must
incorporate knowledge of unlawfulness. X must know that her conduct is not covered by a
ground of justification. If X believes that she is entitled to act in private defence because she fears
an imminent unlawful attack by Y whereas she is in fact not entitled to private defence because Y
does not intend to attack her, she lacks the necessary intention to assault.
(4) According to Chretien 1981 intoxication may lead to X's lacking the intention to assault, in
which case X must be found not guilty.
(5) It seems doubtful whether our courts would be prepared to recognise provocation as a
ground for excluding the intention required for ordinary assault. (They do recognise that
provocation may exclude the ``special intention'' required for the qualified assaults, such as
assault with intent to do grievous bodily harm.)

Attempt
Is it possible to commit attempted assault? Consider the following example: X strikes at Y's head
with her fist, but because Y dodges her head, the blow just misses Y. Previously it was assumed
that attempted assault was impossible, for the following reason: every time X attempts to
assault Y but her blow misses Y, X has inspired a belief in Y that force is immediately to be
applied to her, and therefore X is guilty of completed assault even in these cases which would
appear to constitute attempted assault only.
It is now recognised that the above argument is fallacious there may indeed be cases in which
only attempted assault is committed. Although it may be granted that where X has indeed
inspired fear in Y, she commits completed assault, it must be remembered that, in exceptional
cases, it is possible that X's blow at Y which misses her may not arouse any fear in Y. In such
cases only attempted assault is committed. In instances where she is blind or deaf or unconscious
or under the influence of liquor, or does not understand X's threatening words. Even where
she is aware of, and understands the threat, she may be completely unperturbed, for
instance when she knows that it is only a toy revolver that X is pointing at her. (you kind of
stretching!!!)

Assault with intent to do grievous bodily harm

You must study the discussion of this crime in Criminal Law 461±462 on your
own. Read into Tape.
ACTIVITY
X and Y are arguing over a girl. X becomes angry and draws a knife from his pocket. X tells Y to
forget the girl and to go home. Y refuses. X tries to stab Y with the knife. Y manages to avert the
attack and X misses Y more than ten times. Y flees and runs to the police station to lay a charge
of assault with the intent to cause grievous bodily harm. X is charged with this offence. X's
defence is that although he had tried to stab Y, Y had not been injured at all. Therefore, he could
not be found guilty of the crime. Can X succeed with this
defence?
FEEDBACK
X's defence will not succeed. For a conviction of assault with the intent to cause
grievous bodily harm, it is not required that Y had in actual fact suffered serious
bodily harm. It is only required that X had the intention to impose serious bodily
harm. This crime can be committed even though no grievous bodily harm is in fact
inflicted upon Y, and even though no actual physical injuries are inflicted upon him. In
Joseph 1964 X drove a truck and deliberately swerved towards Y, intending to hit him,
but just failed to hit him. He was convicted of assault with intent to do grievous bodily
harm.

Assault with intent to commit another crime

You must study the discussion of this crime in Criminal Law 462±463 on your
own. (tape)
POINTING OF A FIREARM (Criminal Law 466±468)
10.2.1 Definition
Definition
Section 120(6) of the Firearms Control Act 60 of 2000 provides that 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; or
(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.
The subsection creates two different offences - closely related and it is convenient to
discuss them as a single offence.
Elements of the offence
(1) the pointing of
(2) a firearm or other article
(3) at any person
(4) unlawfully and
(5) intentionally
This may overlap with assault - inspiring fear of immediate personal violence.

The act: ``To point ... at''

The act consists simply in pointing the firearm/article at somebody else.
(1) that X fired a shot;
(2) that the firearm or article was loaded; or
(3) that the firearm or article was capable of firing a shot.
``Point at'' interpreted in more than one way: . Firstly – narrowly pointing of firearm at Y that,
if discharged, the bullet would hit Y (this interpretation was adopted in Van Zyl 1993).
. Secondly – broadly directing firearm towards Y if it were discharged, the bullet would
either strike Y or pass in her immediate vicinity (wider interpretation was adopted in Hans
1998).
Support for both interpretations can be found in case law, it is submitted that broader
interpretation is the correct one. The reasons for
following the broader interpretation are the following:
(1) The legislature wants to combat the evils surrounding the handling of firearms on as broad
a front as possible.
(2) The narrow interpretation makes it difficult for the state to prove the commission of the
offence it would be difficult to prove beyond reasonable doubt that, if the bullet had been
fired, it would actually have hit Y, and not merely have missed her.
(3) The arousal of fear in the mind of Y of being struck by the bullet, would exist
irrespective of proof that bullet would have actually struck her or just missed her.

A firearm, et cetera
What must be pointed is a firearm, an antique firearm or an airgun or anything
which is likely to lead a person to believe that it is a firearm, an antique firearm or
an airgun - the gist of the definition of a firearm, namely ``any device manufactured or
designed to propel a bullet or projectile through a barrel or cylinder by means of burning
propellant'', a firearm includes the barrel or frame of the device - ``or anything which is likely
to lead a person to believe that it is a firearm etc'' X may commit the
offence even if she points a toy pistol at Y, if the toy pistol leads a person to believe that it is a
real pistol.
``Any other person''
Must be pointed at a person to point it at an animal, cannot lead to a conviction.
10.2.6 Unlawfulness
The requirement of unlawfulness is not specifically mentioned in the definition of
the offence – the words ``without good reason to do so'' are wide enough to incorporate grounds
of justification. X will not be guilty of the crime if she points a firearm at another while
acting in private defence, or if X is a police officer lawfully effecting an arrest.

Intention
Intention is not expressly required in the it is unlikely the legislature intended to create a
strict liability offence - also unlikely it intended mere negligence to
be a sufficient form of culpability - words ``point at'' prima facie denote intentional behaviour.
The corresponding offence in the previous legislation, which was replaced by the present Act,
required that the firearm be ``willfully'' pointed. It is submitted that the form of culpability
required for a conviction under the subsection is intention.
This means that X must know that
(1) what she is handling is a firearm, antique firearm, airgun or anything which is likely to lead a
person to believe that it is such an article
(2) she is pointing the weapon at another person - if she thinks that she is
pointing it at an animal or an inanimate object, she lacks intention
(3) there is no ``good reason'' for her conduct, it is unlawful, not covered by a ground of
justification
Mere negligence is not sufficient. It is submitted that, according to general principles, intention
in the form of dolus eventualis is sufficient.
Punishment - punishment is a fine or imprisonment for a period not exceeding ten years.

ACTIVITY
X takes a gun and points it at herself. Whilst X is pointing the gun at herself, the police arrives at
the scene. X is charged with ``pointing of a firearm''. Can X be convicted of this offence?
FEEDBACK
X cannot be convicted of this offence. Section 120(6)(a) and (b) of the Firearms
Control Act 60 of 2000 provides that the pointing of a firearm must be directed at
``any other person''.
SUMMARY

Assault
(1) Definition of assault Ð see definition above.
(2) The act of assault may consist in either the application of force to the body of
another person, or in the inspiring of fear or a belief in Y that force is
immediately to be applied to her. The application of force may be direct or
indirect.
(3) Grounds of justification which may possibly be raised on a charge of assault
are private defence, official capacity, parental authority and consent.
(4) Intention is the required form of culpability for the crime of assault.
Negligence is not a sufficient form of culpability for this crime.
(5) It is possible to commit attempted assault.
Assault with the intention to do grievous bodily harm
(6) All the requirements for an ordinary assault apply to this crime, but in
addition there must be intent to do grievous bodily harm.
(7) Whether grievous bodily harm is in fact inflicted on the victim is immaterial
in determining liability. It is only the intention to do such harm that is in
question.
(8) Important factors which may indicate that a person had such an intention are
for example the nature of the weapon or instrument; the way in which it was
used; the degree of violence used; and the part of the body aimed at.
Assault with intent to commit another crime
(9) All the requirements for ordinary assault are also applicable to these
offences. In addition there must be an intention to commit the further crime,
for example rape, robbery or murder.
Pointing of a firearm
(10) Definitions of the offence Ð see definition above.
(11) The expression ``point at'' should be interpreted as directing the firearm
towards Y in such a way that, if it were discharged, the bullet would either
strike Y or pass in her immediate vicinity.
(12) The gist of the definition of a firearm is any device manufactured or designed
to propel a bullet or projectile through a barrel or cylinder by means of a
burning propellant.
TEST YOURSELF
(1) Define assault.
(2) Set out briefly the different ways in which assault can be committed.
(3) Give two illustrations from our case law of assault committed by the indirect
application of force.
(4) Discuss the principles relating to assault in the form of inspiring fear in another that
force is immediately to be applied to her.
(5) Give examples of grounds of justification that exclude the unlawfulness of an assault.
(6) Discuss the requirement of intention in assault.
(7) Is the following statement correct? Give reasons for your answer. ``It is impossible
for somebody to be convicted of attempted assault, because if one strikes at another and
misses the other, the conduct will always amount to the inspiring of a belief in the other
that force is immediately to be applied to her.''
(8) If X is charged with assault with intent to do grievous bodily harm, is it incumbent
upon the prosecution to prove that grievous bodily harm has in fact been inflicted upon
the victim?
(9) Discuss the meaning of ``grievous bodily harm'' in the crime of assault with intent to
do grievous bodily harm.
(10) Discuss the crime of assault with intent to commit another crime.
(11) Define the offence of pointing a firearm.
(12) As far as proof of the requirement of an act (ie ``point at ...'') in the offence of
pointing a firearm is concerned, the state need not prove certain circumstances. Name
these circumstances.
(13) The requirement of an act in the offence of pointing a firearm consists simply in
pointing the firearm at somebody else. However, the expression ``pointing at'' is capable
of being interpreted in more than one way. Describe the different interpretations of this
expression, indicate which interpretation should be followed and give reasons why such
an interpretation should be followed.
(14) What is the gist of the definition of ``firearm'' as this expression is used in the
offence of pointing a firearm?
(15) Give two examples of instances in which the pointing of a firearm is not unlawful.
(16) What is it that X must know in order to have the intention required for the offence of
pointing a firearm? Explain.
(17) What is the punishment for this offence?

STUDY UNIT 11
Crimes against dignity,
Reputation and freedom of movement
CRIMEN INIURIA (Criminal Law 469±475; Case Book 240±243)
11.1.1 Definition
Crimen iniuria is the unlawful, intentional and serious infringement of the dignity
or privacy of another.
11.1.2 Elements of the crime
(1) the infringement
(2) of another's dignity or privacy
(3) which is serious
(4) unlawfulness (5) intentional
Introduction
A person values not only his physical integrity (freedom from physical attacks by others) but
personality rights - include right to dignity and privacy. Insults to a person's dignity is regarded
by him as insults to his physical integrity. The criminal law punishes not only violations of a
person's physical integrity (``assault'') but also violations of rights to personality – they are
punished under the headings of crimen iniuria and criminal defamation.
Distinction between crimen iniuria and criminal defamation
Crimen iniuria and criminal defamation should not be confused with each other.
. crimen iniuria, violations of a person's dignity and privacy are made punishable.
. criminal defamation, violations of a person's good name or reputation are made punishable.
It is important to distinguish between dignity and privacy and reputation (``good name''). A
person's reputation refers to what others think of him. A violation of reputation involves
three parties, namely
. the person who makes the defamatory statement
. the complainant (Y), the person about whom defamatory statement is made.
. the so-called third party (one or more other people) to whose knowledge the
defamatory statement must come.
In crimen iniuria there are only two parties involved.
. the wrongdoer (X), who says or does something which violates the dignity or
privacy of
. the complainant (Y),
as where X insults or degrades Y over the telephone (remarks which nobody
other than Y can hear), or where he watches Y undressing.

The interests protected by the crime

We consider the interest protected by the crime - person's dignitas (dignity) and privacy.
11.1.5.1 Dignity
The crime protects a person's dignity his dignitas.
What does dignitas mean? Melius de Villiers (The Roman and Roman-Dutch Law of
Injuries (1899) gave a classical description of the concept which our courts have followed. It
reads as follows: That valued and serene condition in his social or individual life which is
violated when a person is, either publicly or privately, subjected by another
to offensive and degrading treatment, or when he is exposed to ill-will, ridicule, disesteem or
contempt.
(This description was quoted with approval in, inter alia, Umfaan 1908 Jana 1981) Other
expressions used by the courts to describe dignitas include ``mental tranquility'' (Holliday
1927) and ``his proper pride in himself'' (Tanteli 1975). The gist of the concept of dignity is
usually expressed as ``mental tranquility'', ``self-respect'' or ``feeling of chastity''.

11.1.5.2 Privacy
Crimen iniuria protects not only a person's dignity, but also his privacy. The courts regard
privacy as something which is included in the concept of dignity commentators have
observed privacy cannot be accommodated under the concept of dignity. One of the reasons for
this view is the following:
The right to privacy can be infringed without Y's being aware of the infringement - where
X watches Y undressing (Holliday supra). On the other hand an infringement of Y's dignity or
right to self-respect is only conceivable if Y is aware of X's insulting words or conduct (Van
Tonder 1932). This is the reason why both terms, dignity and privacy, have been designated as
the protected interests in the definition of the crime above. The Bill of Rights in the RSA
Constitution recognises a person's right to dignity and his right to privacy in different
sections. Section 10 recognises a person's right to dignity and section 14 his right to privacy.
Infringement of legal interest may lead to both civil claim and criminal prosecution
If X's dignity or privacy is unlawfully and intentionally violated by Y's conduct, X may institute a
civil claim against Y, in which he claims an amount of money for damages or compensation from
Y for the unlawful infringement of his interests. The same applies if it is X's good name or
reputation which has been violated by Y. In this latter case it is a claim for defamation which X
institutes against Y. These civil claims are something entirely different from criminal prosecution
for crimen iniuria or defamation. It is nothing unusual to find that a person whose dignity or good
name has been infringed
. not only institutes a civil claim against the alleged infringer, but also
. lays a charge of crimen iniuria or criminal defamation against the alleged wrongdoer with the
police, resulting in a criminal prosecution for one of these crimes.

Infringement of interests protected

11.1.7.1 General
(1) The crime can be committed either by word or by deed.
(2) Although many or perhaps most cases of crimen iniuria involve some taint of sexual
impropriety, the crime is not confined to insults of such a nature.
(3) Many instances of crimen iniuria involve conduct by a male towards a female, X may be
either male or female.
(4) An attack, not against Y himself, but against some group to which he is
affiliated (his language group, his religion, race or nationality) will normally not constitute a
violation of his dignitas, unless there are special circumstances from which an attack on his
self-respect can be deduced (Tanteli supra).

11.1.7.2 Subjective and objective aspects of infringement

The infringement of the interests protected contains both a subjective and an
objective element.
The subjective element is the following:
In instances of infringement of dignity (as opposed to infringement of
privacy) Y must
. be aware of X's offending behaviour and
. feel degraded or humiliated by it.
Exception to this rule: where Y is a young child or a mentally defective person, he would not
be able to understand the nature of X's conduct and consequently would not be able to feel
degraded by it. This does not afford X a defence. For this reason the crime can be committed
even in respect of a young child or a mentally defective person (Payne 1934).
Proof of the fact that Y felt degraded - it is usually assumed that conduct which offends the
sensibilities of a reasonable person would have offended Y's sensibilities. If, it comes to light
that Y did not take any offence at (did not feel aggrieved or humiliated by) X's behaviour, a court
will not convict X of the crime. In cases of infringement of privacy (as opposed to dignity),
however, a different rule applies: it need not be established that Y was aware of X's
offensive conduct. If X watches Y undressing, X is taken to have infringed Y's privacy
irrespective of whether Y is aware of being watched or not (Daniels 1938).
The objective element is the following:
Feelings such as ``mental tranquility'' and ``self-esteem'' (describe dignitas) are subjective and
emotional concepts, their existence and intensity may vary from person to person. A certain
person may be hypersensitive and easily take affront, whereas another may be more robust or
broadminded and not feel degraded if the same conduct is directed at him. For this reason the
law must of necessity apply the objective standard: X's conduct must be of such a nature that it
would offend at least
the feelings of a reasonable person. If Y happens to be so timid or hypersensitive that he
takes affront at conduct that would not affront a reasonable person, the law does not
assume that the crime has been committed.

11.1.7.3 Examples of infringement of dignity

The following are examples of conduct constituting an infringement of Y's
dignity:
(1) Indecent exposure where X exposes his private parts to Y (without Y's consent) (A 1991).
It matters not whether this takes place in public or in private. (This type of conduct may also be
categorised as invasion of privacy.)
(2) Communicating to Y a message containing expressly or impliedly, an invitation to, or a
suggestion of, sexual immorality (Olakawu 1958), where X, unsolicited, sends indecent photos
to Y.
(3) address another in language which humiliates or disparages him - calling him a ``pikkenien''
S v Mostert 2006.
(4) Acts which constitute assault may also constitute crimen iniuria, where X spits in Y's face
(Ndlangisa 1969).
(5) The uttering of words constituting vulgar abuse or gross impertinence may constitute the
crime, provided that the circumstances are sufficiently serious.
Examples of such cases in which X was convicted of crimen iniuria are the
following:
. In Walton 1958 Y, a mother, asked X to stop making a noise with his motorcycle so that her
child could sleep, whereupon X shouted at Y ``Come here lady and I will give you another''.
. In Momberg 1970X swore at a traffic officer who issued him with a ticket for a traffic offence,
shouting at him ``Jou lae donnerse bliksem!'' (``You low damn scoundrel)

11.1.7.4 Examples of infringement of privacy

(1) A person's privacy may be infringed by a ``Peeping Tom'' – someone who peeps through a
window somebody else undressing or taking a bath. Cases involving `Peeping
Toms'' are most common instances of criminal invasion of privacy (eg Schoonberg 1926,
Holliday supra). The fact that Y, at the time she was being watched by X, had not yet
undressed, offers X no defence, because the mere unwanted intrusion by X into Y's private
sphere is enough to constitute the infringement of the interests protected by the crime.
(2) A person's privacy may be infringed by ``bugging'' someone plants a listening-in device in
Y's house, room or office and then listening to his private conversations (A 1971). The fact that
the contents of the overheard conversation happen not to reveal anything shameful or scandalous
does not afford X a defence, because the mere unlawful intrusion by X into Y's private sphere is
enough to constitute the infringement of the interests protected by the crime.
(3) A person's privacy may conceivably be infringed in a variety of other ways - opening and
reading of a confidential postal communication (including e-mail) addressed to him, or by
prying into his private life in an unwarranted manner, by means cameras, telescopes and
other ``bugging devices''.

Violation of dignity or privacy must be serious

Violations of dignity or privacy must be serious - may not be of a trifling nature (Seweya
2004). This requirement is vague but necessary. In everyday life it is common that people
argue with each other and that in the course of argument one person may say something to the
other which technically amounts to an infringement of the other's dignity (as where X swears at
Y). Ill mannered drivers may snarl at other road users or make uncouth gestures at them.
The law cannot regard these small and unfortunate episodes that occur in everyday life as
crimes. The courts would be inundated with unnecessary trials. In short, as was said in Walton
supra ``in the ordinary hurly-burly of everyday life a man must be expected to endure minor
or trivial insults to his dignity.

Factors which may play a role in deciding whether the behaviour was serious:
(1) The ages of the parties. Certain conduct towards young persons is sometimes viewed in a
more serious light than it would be if it were directed at mature people.
(2) The gender of the parties. In Van Meer 1923 the court stated that ``(t)he law would naturally
be always more studious to protect girls and women against insults from men than it would be
in the case of insults offered by one man to another''. There is, however, no rule stipulating that
the crime can only be committed by a man towards a woman. It can also be committed by a man
towards a man, a woman towards a woman or a woman towards a man.
(3) The nature of the act. Certain types of conduct are notoriously serious - indecent exposure or
the activities of ``Peeping Toms''.
(4) The relationship between the parties. The violation of X's dignity is more
serious if she is insulted by a stranger, than when she is insulted by her husband or boy-friend in
a domestic argument.
(5) The persistence of the conduct – may push it over the borderline between non-punishable
conduct and crimen iniuria. Thus to stare at a woman is scarcely injurious, but to follow her and
rudely stare persistently at her may be (Van Meer supra).
(6) The publicity with which the conduct is accompanied. The degree of impairment of
dignity may be greater where X's words are heard not only by Y, to whom they are addressed,
but by others as well, or when they are otherwise made known to a larger audience.
(7) Sexual impropriety. If X makes unwanted overtures towards Y which contain an element of
sexual impropriety - more serious light than when the overtures do not contain such an element.
The crime can be committed even if there is no suggestion of sexual impropriety in X's advances
towards Y.
(8) Y's public standing attacks upon the dignity of a person occupying a public office and
related to such a person's performance of his duties may be viewed in a more serious light
compared to the same behaviour directed at a person in his private capacity. To swear at a police
or traffic officer for merely performing his duties may be more serious than swearing at a private
person in his private capacity (Momberg supra). The reason for this is that offensive words
directed at a person occupying a public office may be viewed as an expression of contempt
not only towards the individual person at whom the words are directed, but also towards the
very institutions which such persons represent. These institutions are often necessary to
maintain law and order and to secure public peace and security.

Unlawfulness
Conduct which would otherwise amount to a violation of dignity or privacy may
be justified by grounds of justification such as
. necessity – where X appeared naked in Y's and a fire broke out in Y's house while he was
having a bath and had to flee for his life while naked.
. consent, where Y gives X permission to look at her while undressing
. official capacity, as where X is a policeman who, in the course of the performance of his duties
as a detective, enters Y's house without Y's permission and searches the house in an effort to find
evidence of the commission of a crime he is investigating.
Intention
Can only be committed intentionally. Negligence is insufficient ground to base a conviction. X
must know that his words or conduct violate Y's dignity or privacy, and he must know that there
is no ground of justification for his conduct.

CRIMINAL DEFAMATION
You must study the discussion of this crime in Criminal Law 475±477 on your
own.
You are not required to study the part in Criminal Law which deals with the origin
of the crime (par 3) for examination purposes. Only read through this part.
The elements of this crime are:
(1) the publication
(2) of defamatory matter
(3) which is serious, and
(4) which takes place unlawfully and
(5) intentionally
As far as the requirement of publication (Criminal Law 476 par 5) is concerned, you must take
note of the following: The term ``publication'' as used here does not necessarily mean that the
allegations should be made public in printed form. It only means that the allegations must
come to the attention of people other than Y. The publication can therefore take place orally or
in writing. If they come to the attention of Y only they can at most constitute crimen iniuria,
if they are of such a nature that Y's dignity is injured.

KIDNAPPING
You must study the discussion of this crime in Criminal Law (479±482) on your
own
The elements of this crime are
(1) the deprivation
(2) of freedom of movement (or parental control)
(3) which takes place unlawfully, and
(4) intentionally
The crime is a crime against a person's freedom of movement.
GLOSSARY
dignitas dignity

SUMMARY
Crimen iniuria
(1) Definition of crimen iniuria see definition above.
(2) The crime of crimen iniuria protects both a person's dignity and privacy.
(3) The gist of the concept of dignity (or dignitas) is usually expressed as
``mental tranquility'', ``self-respect'' or ``feeling of chastity/innocense''.
(4) Although many or perhaps most cases of crimen iniuria involve some
measure of sexual impropriety, the crime is not confined to insults of such a
nature.
(5) In instances of infringement of dignity (as opposed to infringement of
privacy), Y must be aware of X's offending behaviour and feel degraded or
humiliated by it.
(6) Examples of conduct which infringes Y's dignity are indecent exposure,
communicating to Y (in practice usually a woman) a message containing an
invitation to, or a suggestion of, sexual immorality, and vulgar abuse.
(7) Examples of conduct which infringes Y's privacy are the activities of
``Peeping Toms'', planting a listening-in device in Y's house, room or office
and opening and reading a confidential postal communication addressed to Y
without his consent.
(8) In order to qualify as crimen iniuria the infringement of dignity or privacy
must be serious.
(9) The required form of culpability for this crime is intention.
Criminal defamation
(10) Definition of crime Ð see Criminal Law 475.
(11) The crime protects the reputation of a person.
(12) A person's good name or reputation can be harmed only if the conduct or
words complained of come to the notice of someone other than Y, in other words,
if publication takes place. If the conduct comes to the notice of Y only, it can at
most amount to crimen iniuria.
(13) Grounds of justification are the same as the defences available to the
defendant in a civil defamation action, namely, truth and public benefit; fair
comment and privilege.
(14) The harm to another's reputation must be serious.
(15) X must intend to harm Y's reputation by the unlawful publication of
defamatory matter concerning him. X must also know that his words are not
covered by any ground of justification. In other words, X must have the
necessary knowledge of unlawfulness.
Kidnapping
(16) Definition of crime Ð see definition in Criminal Law 479.
(17) The interest protected is, in principle, the freedom of movement of a person.
If the person is a child, the interest which is infringed is the control of a
parent or guardian over the child.
(18) X's motive in depriving Y of his or her freedom of movement, need not
necessarily be to demand a ransom for his or her release. However, if a
ransom is demanded, X may also be punished for extortion.
(19) Child stealing is merely a form of kidnapping.
(20) Forcible removal is not a requirement for the crime. The removal may also be
effected by cunning or craft.
(21) It is also not required that a person be removed from one place to another.
The crime can also be committed even though there is no physical removal, for
instance where Y is concealed or imprisoned where he happens to be.
(22) There is no such requirement for kidnapping that the perpetrator must intend
to deprive Y permanently of his freedom of movement.

TEST YOURSELF.

(1) Define crimen iniuria.

(2) Distinguish between crimen iniuria and criminal defamation.
(3) Discuss the meaning of the term dignitas in the crime of crimen iniuria.
(4) Discuss the following statement: ``The infringement of the legal interests protected by
crimen iniuria contains both a subjective and objective element''.
(5) Give examples of
(a) the infringement of dignity
(b) the infringement of privacy
(6) Name and discuss the factors which may play a role in deciding whether the
infringement of dignity or privacy was serious.
(7) Define the crime of criminal defamation.
(8) Distinguish between the interests protected by the crimes of criminal defamation and
crimen iniuria.
(9) Name the grounds of justification which may be relied upon on a charge of criminal
defamation.
(10) Discuss the intention required for the crime of criminal defamation.
(11) Define the crime of kidnapping.
(12) Is ``childstealing'' a separate crime in our law or merely a form of kidnapping?
(13) Distinguish between kidnapping and abduction.
(14) Does X commit kidnapping if he removes Y, a 15-year-old boy, with his (Y's)
consent from his parents' home, but without the boy's parents' consent?
(15) Y is a clerk who works in an office. X, who has a grievance against Y, locks the
door of Y's office while Y is inside. In doing this, he makes it impossible for Y to leave
his office, because the office is on the fifth floor of a building and Y therefore cannot
escape through a window. X refuses to open Y's office unless Y complies with certain
demands. Y refuses to agree to or yield to X's demands. X only lets Y free twenty four
hours after Y has been locked up in his office. Did X commit kidnapping? Give reasons
for your answer.

Crimes against property

STUDY UNIT12
Theft
DEFINITION
Theft is the unlawful, intentional appropriation of movable, corporeal property
which
(1) belongs to, and is in the possession of, another
(2) belongs to another but is in the perpetrator's own possession, or
(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 provided that the intention to appropriate the property includes an intention
permanently to deprive the person entitled to the possession of the property, of such
property.
GENERAL CHARACTERISTICS OF CRIME
Because the legislation has not defined the crime – we rely on provisions of Roman-Dutch
law in order to define theft. In Roman-Dutch law the crime comprised a large number of acts. It
covered the appropriation not merely of another's property in the possession of such other
person, but also of another's property which is already in the perpetrator's own possession.
Example:
Fearing that his house may be burgled while she is away on holiday, my neighbour requests me to
keep a bottle of wine belonging to her in my house and to look after it while she is away. I
receive the bottle of wine. Before my neighbour returns from holiday, I drink all the wine
myself.
Appropriating someone else's property already in the perpetrator's possession or control, is known
as embezzlement. ``Belongs to another but is in the perpetrator's own possession.' Since acts of
embezzlement amount to theft, one cannot define theft in our law merely in terms of the
removal of another's property. In the above example, I drank my neighbour's wine, I did not
first remove the wine from her possession I already possessed it myself!
Another unusual characteristic of the crime in our law is that it can be committed even if X
takes back her own property which is temporarily in another's lawful possession - where X has
pledged her watch to Y and before paying her debt to Y, withdraws it from Y's possession
without Y's consent. This form of theft may be described as the unlawful arrogation of the
possession of a thing. Since such conduct also amounts to theft, it is incorrect to describe theft in
our law exclusively in terms of the appropriation of somebody else's property.

LATIN TERMINOLOGY
The most important concepts relating to theft are derived from Roman law - some of the original
Latin terminology is still used today to describe certain concepts relating to the crime. The Latin
word for theft is furtum. The act of theft was described as touching the property. Today one
may commit theft without touching the stolen property – e.g. I drive somebody else's sheep from
his land onto my own land. In our present law, the act by which theft is committed is much
broader than conveyed by the meaning of the word contrectatio - this word should be
avoided when describing the act of stealing. The courts sometimes still use the word
contrectatio, but then the term is an ``erudite-sounding'' synonym for ``the act of stealing''.
We prefer to describe the act as an appropriation of the property – it is' understandable to the
lay person, and flexible enough to encompass the wide variety of acts amounting to theft.
The object of the crime, that is the property or thing stolen, is res. Animus furandi means
``intention to steal''. The intention required for theft is better described as ``intention to
appropriate''. invito domino means ``without the owner's consent'' and refers to the unlawfulness
requirement.

DIFFERENT FORMS OF THEFT

Theft can be committed in a variety of ways. Distinguish between the following different forms
of theft in our law:
(1) The removal of property. X removes property belonging to somebody else from that person's
possession and appropriates it - most common form of theft.
(2) Embezzlement. X appropriates another's property which she already has in her possession.
(3) Arrogation of possession. X removes her own property which is in the lawful possession of
another (a pledgee) and appropriates it.

Further forms of theft - theft of money in the form of credit, which are governed by certain rules
applicable only to such cases.
We shall arrange the discussion of the crime as follows: First - theft in the form of removal of
property - four basic requirements of the crime which (in principle) must always be complied
with no matter what form of theft one is dealing with.

FOUR BASIC REQUIREMENTS

Four basic requirements must be complied with before a person can be convicted
of theft in any of its forms.
(1) an act of appropriation
(2) in respect of a certain type of property (or thing)
(3) which takes place unlawfully and
(4) intentionally (with the intention to appropriate)

THEFT IN THE FORM OF THE REMOVAL OF PROPERTY

X removes Y's property from Y's or somebody else's possession and appropriates it - most
common form of theft – four basic requirements for liability for this theft are:
12.6.1 Act of appropriation
A person commits an act of appropriation if she commits an act whereby:
(1) she deprives the lawful owner or possessor of her property, and
(2) she herself exercises the rights of an owner in respect of the property
(Tau 1996). She behaves as if she is the owner/person entitled to the property in so doing
exercises control over the property.
12.6.1.1 Act of appropriation consists of two components
An act of appropriation consists of the following two components:
. a negative component, exclusion of Y from the property
. a positive component, X's actual exercise of the rights of an owner in respect of the property in
the place of Y.
If second component has been complied with but not the first, there is no completed act of
appropriation. This explains why X does not commit theft in the
following two types of situations:
(1) The ``pointing out'' situation. X points out certain property (eg a cow) to Z and tells Z that
the property belongs to her (X). The property in fact belongs not to X, but to Y. X then ``sells''
the property to Z, but before Z can remove it, Y, the true owner, intervenes and X's fraudulent
conduct comes into the open. (Makonie 1942 Strydom 1952) are examples. Y has not yet been
excluded from the control over her property. There has
been no completed act of appropriation, X cannot be convicted of theft. (She may, however, be
convicted of attempted theft.)
(2) The situation where X is apprehended before she can complete the taking of the property. X
exercises the rights of an owner over the property but is caught before she can succeed in getting
the property under her control. X sets out to steal a motor car. She gets into Y's car and starts
tampering with the electrical wiring below the steering
column of the car, but before she can succeed in starting the car she is caught by a police officer.
Y, the real owner, has not been excluded from her property X can, at most, be convicted of
attempted theft.
12.6.1.2 Border between attempted and completed theft
If X carries away Y's thing but is apprehended shortly thereafter, before she has succeeded in
removing the property to the exact locality she has in mind, the question arises whether she
should be convicted of completed theft or attempted theft only.
The test employed to distinguish between attempted and completed theft is the
same as that employed to distinguish between an uncompleted and a completed act of
appropriation: the crucial question is whether, at the stage when X was apprehended, Y had
lost control of her property and X had gained the control of
the property in Y's place.
The answer to this question depends upon the particular circumstances of each
Case - the character of the property taken, the way in which a person would normally exercise
control over property of such a nature, and the distance between the place from which the
property was removed and the place where X was apprehended with it. Since the thief and the
owner have opposing claims to the property, they cannot simultaneously exercise control over it.
The precise
moment at which the owner loses her control and the thief gains it is a question of
fact. In Tarusika 1959 it was held that X had already gained control of the property and had
committed completed theft when he had removed a blanket from a washing line, had placed it
under his arm and had been caught in possession of it 20 metres from the
line.
12.6.1.3 Stealing from a self-service shop
If X, intending to steal, conceals in her clothing an article offered for sale in a self service
shop and is apprehended with the article before leaving the shop, the courts accept that she can be
convicted of completed theft (M 1982); Dlamini 1984). The fact that the courts accept that X can
be convicted of completed theft in such circumstances maybe explained as follows: because the
public is invited to help themselves in the shop, and because even security personnel who have to
try to trace the thieves in the shop find it impossible to keep all clients continually under
surveillance while they are in the shop, it cannot be said that the owner of the self-service shop
exercises effective control over all the articles in the shop while the shop is open.

The property
In principle, theft can be committed only in respect of a certain type of property
(or thing). However, as we shall see, there are specific exceptions to this rule. To
qualify as property capable of being stolen, the property must comply with the
following requirements:
(1) The property must be movable - immovable property is a farm - one cannot steal a part of a
farm by moving its beacons or fences. If part of an immovable property is separated from the
whole, it qualifies as something that can be stolen; examples in this respect are mealiecobs
separated from mealie-plants (Skenke 1916) and trees cut down
to be used as firewood (Williams).
(2) The property must be corporeal. This means that it must be an independent
part of corporeal nature. In principle, one must be able to see or touch it. One
cannot therefore steal a mere idea (Cheeseborough 1948, nor a tune (X might be liable for
damages in copyright). The rule that only corporeal property is capable of being stolen should
be viewed circumspectly. This requirement has already been considerably watered down in
our law. Note the following two exceptions to the rule:
First, from Roman times the law has recognised that an owner may steal her own property from
somebody else who is in lawful possession of the property (such as a pledgee). (arrogation of
possession.) In reality it is not the property that is stolen. While it is true that here the act is
directed at a corporeal thing, what is infringed is the possessor's right of retention, which is a
right is something incorporeal.
A second clear exception to the rule is the following: In the case of certain types of conduct
recognised by the courts as theft - the theft of money through the `manipulation'' of cheques,
banking accounts, funds, false entries, the object stolen is not a corporeal thing in the form of
individual coins or notes of money, but something incorporeal, credit'' or an ``abstract sum of
money''.

(3) The property must be available in (or capable of forming part of) commerce.
(In Latin the property must be in commercio.) is available in commerce if it is capable of being
sold, exchanged or pledged, or privately owned. The following types of property are not capable
of forming part of commercial dealings and are therefore not
susceptible to theft:

(a) Res communes property belonging to everybody air, the water in the ocean or in a public
stream (Laubscher 1948).
(b) Res derelictae abandoned by its owners with intention of ridding themselves of it. Property
which a person lost e.g. money which has fallen out of a person's pocket, is not a res derelicta,
because such a person did not have the intention to get rid of it.
(c) Res nullius property belonging to nobody although it can be the subject of private ownership
wild animals or birds (Mafohla 1958) (wild kudu); Mnomiya 1970). (bees)). If such animals or
birds have been reduced to private possession by capture - birds in a cage or animals in a zoo,
they can be stolen (Sefula 1924).
(4) In principle the property must belong to somebody else. One cannot, steal one's own
property. The exception to this rule is the case of the unlawful arrogation of the possession of a
thing (furtum possessionis),
Unlawfulness
The most important ground of justification excluding the unlawfulness of the act is consent
by the owner to the removal or handling of the property. The requirement that the owner should
not have consented to the taking is often expressed in legal literature by the statement that X
should have acted invito domino means ``without the owner's consent''. Presumed consent
(also called spontaneous agency) may constitute a ground of justification. Example:
While my neighbour Y is away on holiday, her house is threatened by flood waters; I remove her
furniture to my own house in order to protect them. I am then not guilty of theft.
12.6.4 Intention
The form of culpability required for theft is intention. The crime can never be committed
negligently. We have already discussed the three basic
requirements for the crime other than the requirement of intention itself - an act of
appropriation, the property requirement and the requirement of unlawfulness.
12.6.4.1 The intention in respect of the property
X must know that what she is taking or that at which her conduct is directed is a movable
corporeal property which is available in commerce and which belongs to somebody else or (in
cases of theft in the form of the arrogation of possession) which belongs to herself but in respect
of which somebody else has a right of possession which prevails against
her (X's) right of possession.

If X believes that her action is directed at a res nullius or a res derelicta and the
piece of property is not a res nullius or a res derelicta, she lacks intention to steal and cannot be
convicted of theft.

In Rantsane 1973X removed a dirty mattress cover from a garbage container in a military camp.
He was under the impression that the owner (the defence force authorities at the camp) had
thrown it away - that it was a res derelicta. It appeared that the quartermaster had not discarded it
but a recruit had dumped it in the garbage container
because he regarded it as too dirty to sleep on. X was found not guilty of theft because he had
acted mistakenly and therefore lacked the intention to steal.

If X believes that the property she is taking belongs not to another, but to herself,
she likewise lacks the intention to steal.
12.6.4.2 The intention in respect of the unlawfulness
X must be aware of the fact that she is acting unlawfully - that Y had not agreed to the removal or
handling of the property. In Slabbert 1941 Y invited X for a drink at Christmas. On arriving at his
host's home, he found no one there and helped himself to drinks. He was found not guilty on a
charge of stealing some of Y's drinks because he lacked awareness of unlawfulness: he thought
that Y would not object if he helped himself to drinks.

12.6.4.3 The intention in respect of the act (ie intention to appropriate)

The act of stealing consists in an appropriation of the property. It follows that the intention in
respect of the act consists in the intention to appropriate the property.

a Meaning of intention to appropriate

``appropriation'' comprises two components, a positive and a negative one. The positive
component consists in X's exercising the rights of an owner over the property, while the negative
one consists in X's excluding the owner from her property. Since the intention to appropriate is a
mirror image of the act of appropriation, it must reflect both the above components of the concept
of ``appropriation''.
As a result, X must have:
(1) an intention to exercise rights of owner in respect of property, as well as
(2) an intention to exclude the owner from exercising her rights over her
property to deprive her of her property.

b Intention permanently to deprive

The intention to deprive the owner (Y) of her property (ie intention (b) above) must be qualified
in a very important respect: X's intention must be to deprive Y permanently of her property. If X
wishes to deprive Y only temporarily of her property, she still respects and recognises Y's right to
her property throughout. This is contrary to the essence of appropriation.
E.g. I take my friend's car without her consent, not intending to deprive her of it permanently, to
take a joy ride in it and return it to her. If this is my intention when I take and use the car, I do not
commit theft because I lack the intention to appropriate the property.
In the past it was not always very clear whether an intention permanently to
deprive Y of her property was required for a conviction of theft. This intention was not
required in Roman and Roman-Dutch law. Instead of this requirement, common law required
an intention to act lucri faciendi gratia with an intention to derive some benefit from the
handling of the property. (The concept of ``benefit'' was very widely interpreted in our
common law.)

Because the common-law did not require an intention permanently to deprive Y of her
property, X could be convicted of theft even if she intended to use the property without Y's
consent only temporarily before returning it to Y. This form of theft in common-law was known
as furtum usus theft of the use (of the property). In legal literature this type of conduct is
referred to as ``unlawful borrowing'' or the ``arrogation of the use of a thing''. Before 1955
there was uncertainty in our law whether furtum usus (the temporary use of property
without the owner's consent) still amounted to theft.

In 1955 the Appeal Court in Sibiya 1955 removed the uncertainty by clearly holding that
furtum usus is no longer a form of theft in our law and that for X to be convicted of theft an
intention permanently to deprive Y of her property is required. In this case X removed Y's car
without his consent and took a joyride in it intending to return it to Y. The car overturned and
landed in a donga. When the police arrived at the scene, X (who was apparently unscathed) was
still standing near the car. The Appeal Court held that he had not committed theft.
c Intention to appropriate includes intention permanently to deprive
Although Sibiya and other later judgments emphasised the intention permanently
to deprive Y of her property, we are of the opinion that it is better to describe the
intention in respect of the act as an intention to appropriate the property. The
intention to appropriate is not in conflict with the intention permanently to
deprive. The intention to appropriate is wide enough to encompass the intention permanently
to deprive. If one places all the emphasis on the intention permanently to deprive Y of her
property and neglects the intention to appropriate (and more particularly, the intention
directed at the positive component of the concept of appropriation) there is a danger that X may
be convicted of theft where the facts reveal that she actually committed only malicious
injury to property. If X chases Y's cattle over a precipice to their death, without performing any
further acts in respect of the cattle, or if X merely sets Y's furniture alight, X certainly has the
intention permanently to deprive Y of her property, but it is questionable whether she also has the
intention to appropriate the property.
It is clear from the judgment in Sibiya that the mere temporary use of another's
property does not constitute theft. This does not mean that such conduct is not punishable.
After the judgment in Sibiya, the legislature passed legislation aimed at preventing X from
escaping criminal liability in such a situation. The legislature created an offence penalising the
unlawful removal of another's property for temporary use in
certain circumstances. This in fact amounts to a statutory form of unlawful borrowing.

d Exceptions to rule that temporary use not theft

Mere temporary use of another's property is not theft:
(1) If X removes Y's car intending to use it only temporarily but before she returns the car it
breaks down, collides with some object, and X abandons it without notifying Y of the situation,
she may be guilty of theft. By abandoning the car without caring whether Y will find it again, X
adopts an intention which is the opposite of an intention of returning the car to Y: she foresees
the possibility that Y may lose her car and behaves recklessly towards this possibility. Her
state of mind amounts to intention in the form of dolus eventualis to deprive Y permanently of
her car. The facts in Laforte 1922 in this case X was convicted of theft.
(2) If X takes Y's property without Y's consent, not in order to take and use it for her own benefit,
but only to retain it as a pledge or security for a debt which Y owes her, she lacks the
intention to appropriate and is not guilty of theft. The intention to appropriate is absent because X
does not wish to deprive Y of the full benefit of her ownership: she is
prepared to return the property to Y as soon as Y has paid her the debt. In Van Coller 1970 X, a
``flying doctor'' in Botswana, took possession of four microscopes belonging to the Botswana
government without its consent. He intended returning the microscopes, provided certain criminal
charges against him were withdrawn by the Botswana authorities. The court held that this intent
could not be reconciled with intent to
deprive the owner of the full benefit of his ownership. The court held that X had not committed
theft.
e Intention to acquire benefit not required

Unlike common-law, an intention to acquire some form of gain or advantage from the
acquisition or handling of the property is no longer a requirement for theft.
The judgment in Kinsella 1961 (3) SA 520 (C) illustrates this principle. In this case,
X was a major in the Defence Force. He removed property belonging to the Defence Force
without its permission and sold it, not with the intention of converting the proceeds of the sale for
his own personal benefit, but in order to use the proceeds to acquire certain facilities for the
residents of the military camp of which he was in charge. His defence that he never intended to
acquire any personal advantage from the transaction was rejected. The court stated that he
would have been guilty of theft even if he had intended to donate the proceeds of the sale to a
charitable organisation.

In order to be convicted of theft it is not required that X should intend to ``keep the property for
herself.'' If X were to remove Y's property without consent and minutes later give it to Z as a
present, she would still be guilty of theft.

EMBEZZLEMENT
(Criminal Law 499±501)
Theft can be committed in a variety of ways – most common theft removal by X of somebody
else's property and the appropriation of the property.
X commits theft in the form of embezzlement (``theft by conversion'') if she appropriates
another's (Y's) property which is already in her (X's) possession. In
embezzlement X need not first remove the property from Y's she only commits an act of
appropriation in respect of property already in her possession. unlawfulness and the intent
requirements are the same as those in theft. In the following discussion of
of the requirement of the act only. It is immaterial whether the animal that X appropriates
accidentally walked onto X's land or whether its owner had entrusted it to her.
Examples of X's appropriation of Y's property, which is already in X's possession:
. where X consumes the property (she eats Y's food or burns Y's firewood);
. where she sells it (Attia 1937; Markins Motors1958);
. donates it;
. exchanges it for something else (Van Heerden 1984);
. uses it to pay her debts;
. or pledges it without intending to release the pledged property by paying her
debt to the pledgee, or without having any reason to believe that she would
have enough money in future to pay her debt and thus release the property
(Viljoen 1939).

Somebody who finds or picks up an article which somebody else has lost keeps it for herself
and uses, consumes or sells it, amount to theft. If the finder knows who the owner of the article is
or how to trace her, but fails to inform the owner and, consumes it herself, her conduct would
amount to an appropriation of the article (Spies and Windt (1908); Luther 1962. (A person who
picks up coin things of small value and appropriates it would not be charged with or convicted
of theft, because of the operation of the maxim de minimis non curat lex.)

Mere failure or procrastination by X to return the property to Y, or false denial of possession,

cannot without more ado be construed as an appropriation of the property (Kumbe 1962).
Investigate all the circumstances of the case before assuming that X's failure amounts to an
appropriation. X's passivity or omissio may/may not amount to an appropriation e.g. X
simply refuses to return Y's mantelpiece-clock which she had to look after, but which is now in
her lounge room where she can regularly consult it to
ascertain the time. X's decision not to return the property does not constitute its
appropriation; mere thoughts or a mere resolve is not punishable.

ARROGATION OF POSSESSION (FURTUM POSSESSIONIS)

Today furtum usus is no longer regarded as a crime in our law, furtum
possessionis is. The owner steals her own thing by removing it from the possession of a
person who has a right to possess it which legally prevails over the owner's own right of
possession. The pledgee and somebody who has a right
of retention are examples of persons who enjoy such a preferential right of possession.
Example: X wishes to borrow money from Y. Y will to lend X the money if X gives her (Y) her
(X's) watch as security for the repayment of the debt. X gives Y her watch and Y lends X the
money. X will get her watch back only after she has repaid Y the amount
of money owing. Before she has paid Y the money, X takes the watch into her own possession
without Y's consent. This constitutes theft in the form of the arrogation of possession.
This form of theft is peculiar X steals is in fact her own property. In Roberts 1936 X took his
car to a garage for repairs. The garage had a lien (a ``right to retain'') over the car until such
time as the account for the repairs had been paid. X removed his car from the garage without
permission. He was convicted of theft.
In Janoo 1959 X, the owner of a carton of soft goods which he had ordered by post, removed the
carton from the station without the permission of the railway authorities. He was entitled to
receive the goods only against signature of a receipt and certificate of indemnification. His
intention in removing the goods was later to claim the loss from the railway. He was found guilty
of theft.
ACTIVITY
(1) X's neighbour, Y, owes X R800 but fails for more than two years to pay back the money. One
day X goes to Y's house, takes Y's television set and puts it in her (X's) store room. She tells Y
that he will get his television back only after he has paid her (X) the R800 which he owes her. X
does not use the television set, but merely keeps it in order to induce Y to pay his debt.
(2) X intentionally removes a large quantity of food and clothing from a millionaire's house
without his consent. She does not use any of the booty herself, but distributes it amongst the poor.
(3) A stray horse comes walking onto land belonging to X, a farmer. X does not know who the
owner of the horse is, and allows it to graze on her property. Three months later she ascertains
that it belongs to Y. A month thereafter X, who is in financial difficulty, sells the horse and uses
the money to pay her debts.
FEEDBACK
(1) X did not commit theft because she did not intend to deprive Y of all the benefits of his
ownership. X intended throughout to give the television set back to Y as soon as Y had paid her
the debt. She intended to deprive Y only temporarily of his property. This cannot be equated to an
intention to appropriate it, for the last-mentioned intention presupposes an intention permanently
and fully to exclude Y of his property. The leading case in this regard is Van Coller.
(2) X committed theft despite the fact that she did not use or consume the goods herself. She
intended to appropriate the articles unlawfully. She disposed thereof as if she were the owner and
in so doing excluded the owner from exercising her rights to the articles. The fact that X did not
acquire any benefit for herself is no defence in our law. See the decision in Kinsella, discussed
above.
(3) X committed theft in the form of embezzlement. The fact that she sold the horse which had
come into her possession, is clear evidence of an appropriation.

CERTAIN ASPECTS OF THE THEFT OF MONEY

(Criminal Law 503±509)
Money can be stolen where cash (banknotes, coins) are unlawfully removed from the owner by a
person who appropriates them for herself. In the modern business community cash is seldom
used. Money generally changes hands by means of
cheques, negotiable instruments, credit or debit entries in books, or registration in
the electronic ``memory'' of a computer. X, an attorney administers the financial matters of Y, an
aged widow who is growing senile. As trustee of Y's money X has an obligation to receive all
cheques made out to Y or representing funds to which she is entitled, and then to deposit them
into her banking account or invest them for her at a favourable rate of interest. X receives the
cheques her duties she deposits them into her (X's) own banking account in order to enable her
(X) to pay her own private debts. X does not handle any tangible coins or notes - corporeal
things. What she is dealing with and converting to her own use is something incorporeal
``credit'' or an ``abstract sum of money''. If convicted of theft she would be convicted of theft
of incorporeal property. According to our courts, this consideration affords her no defence on a
charge of theft: this conduct constitutes theft (Kotze 1965; Verwey 1968). The courts emphasise
that what is important is not so much the particular mechanisms employed by X to acquire
money, but rather the economic effect of her actions, the reduction of the credit in Y's banking
account (Scoulides 1956). If X wrote enabling her to withdraw money from Y's banking account
and to channel this money into her own banking account in
order to pay her (X's) own private debts. X would then be guilty of theft of the money. The fact
that as a trustee she has the right to write out cheques on Y's behalf does not afford X a defence,
because according to the courts, Y has a so- called ``special interest or property'' in the money or
funds in her account; by writing out cheques contrary to her duties X infringes Y's ``special
interest or property'' (Manuel 1953).
THEFT A CONTINUING CRIME
Theft is a delictum continuum or a continuing crime – the commission of the crime continues
for as long as the stolen property remains in the possession of the thief.
The result of this rule is that our law draws no distinction between perpetrators and
accessories after the fact in respect of theft. If X has stolen property and Y assists X, who is
still in possession of the property, to hide or sell it, Y is guilty of being an accessory after the
fact to the theft, but also of theft as a co-perpetrator, because at the time she assisted X the
theft was not yet completed but still in the process of taking place. In Von Elling 1945, X was
convicted of theft (as a co-perpetrator) because at the request of Z, who had stolen a motor car, he
drove the car from one garage to another with the intention of concealing it from the owner.
GLOSSARY
furtum - theft
furtum possessionis - theft of the possession of the property (arrogation of possession)
furtum usus - theft of the use of the property (no longer a form of theft in our law)
contrectatio - the act of stealing (handling or touching of the property)
res - the thing or property
res communes- things belonging to everybody
res derelictae- abandoned things
res nullius - things belonging to nobody
res in commercio- things that are capable of forming part of commerce
invito domino- without the consent of the owner
animus furandi - the intention to steal
lucri faciendi gratia- the intention of gaining some gain or advantage
delictum continuum- a continuing crime
SUMMARY
Crimen iniuria
(1) Definition of theft: see the definition above.
(2) The act of stealing consists in the appropriation of the property.
(3) The act of appropriation consists in any act whereby X
(a) deprives the lawful owner or possessor of her property, and
(b) exercises the rights of an owner herself in respect of the property
(4) A person can commit theft of another's property either in circumstances in
which the property is in the owner's possession or in circumstances in which
it is in the perpetrator's own possession. The former form of theft is known as
the removal of property and the latter as embezzlement.
(5) It is possible for the perpetrator (X) to commit theft even in respect of
property belonging to herself. This happens if she removes her own property
from the possession of a person (such as a pledgee) who has a right to
possess it which legally prevails over the owner's own right of possession.
This form of theft is known as the arrogation of possession.
(6) For property to be capable of being stolen, it must
(a) be movable
(b) be corporeal
(c) be capable of forming part of commerce (which means that it should not
fall into one of the following categories:
(i) res communes Ð things belonging to everybody
(ii) res derelictae Ð abandoned property
(iii) res nullius Ð things belonging to nobody)
(d) belong to somebody else (except in cases of the arrogation of
possession)
(7) In order to be unlawful, the act of stealing must take place inter alia without
the permission of the person who has a right to possess it.
(8) In order to have the intention required for theft, X's intention (which includes
her knowledge) must
(a) relate to the act
(b) relate to the nature of property
(c) relate to the unlawfulness
(d) furthermore she must have the intention permanently (and not merely
temporarily) to deprive the person entitled to the possession of the property, of such
property. The intention relating to the act means that X must intend to appropriate the
property. The intention relating to the nature of the property (ie the property requirement)
means that she must know that the thing she is appropriating is a movable, corporeal
thing belonging (in principle) to another. The intention in respect of the unlawfulness
requirement comprises inter alia knowledge on the part of X that the person who is
entitled to the possession of the property has not consented to the taking of the property.
(9) The intention permanently to deprive the person entitled to the possession of
such property means that X does not commit theft if she takes the property
with the intention merely of using it temporarily and then of returning it to the
person entitled to its possession.
(10) In theft in the form of embezzlement X appropriates another's property which
already happens to be in her (X's) possession. Here it is not necessary for X
first to remove the property from another's possession, since she is already
in possession of it.
(11) In theft in the form of the arrogation of possession the owner steals by
removing her own property from the possession of the person who has a
right to possess it and whose right legally prevails over the owner's own right
of possession.

TEST YOURSELF
(1) Define theft.
(2) Distinguish between the following forms of theft:
(a) the removal of property
(b) embezzlement, and
(c) the arrogation of possession
(3) Define and discuss the meaning of ``the act of appropriation''.
(4) Discuss fully the question of which types of property are capable of being Stolen.
(5) Discuss the intention to appropriate.
(6) Discuss the form of theft known as embezzlement.
(7) Discuss the form of theft known as the arrogation of possession.
(8) X visits a self-service shop. She takes a piece of soap from a shelf and hides it in her
clothing, intending to steal it. When she reaches the till, a security guard, who has
watched her the whole time, arrests her. With reference to the requirement of an act in
theft, discuss the question whether X should be convicted of theft or merely of attempted
theft.
(9) Is it required, in order to satisfy the intention requirement in theft, that X should have
intended to derive some benefit from the acquisition of the property? Discuss.
(10) X takes Y's motor car without Y's consent and drives a few kilometres in it just for
pleasure. Thereafter she brings it back to Y. Already when she switched on the car, she
intended to use it only temporarily and then to restore it to Y. Has X committed theft?
Discuss with reference to the case law.
(11) What is the meaning of the following?
(a) contrectatio
(b) animus furandi
(c) furtum usus

STUDY UNIT13 Robbery and receiving of stolen property

ROBBERY (Criminal Law 517±521; Case Book 249±252)

13.1.1 Definition
Robbery consists in theft of property by unlawfully and intentionally using
(1) violence to take the property from another or
(2) threats of violence to induce the other person to submit to the taking of the
property
Customary to describe robbery briefly as ``theft by violence'' - reflect the essence of the crime.
13.1.2 Elements of the crime
(1) the theft of the property
(2) the use of either actual violence or threats of violence
(3) a causal connection between the violence (or threats thereof) and the
acquisition of the property
(4) unlawfulness (5) intention
13.1.3 General character of the crime
All the requirements for theft apply to robbery too - we are not going to repeat all
of them -sufficient to point out just as in theft, only movable, corporeal property that is available
in commerce can form the object of robbery. The possessor or person who is entitled to the
property must not, have consented to the taking, and X must have known that consent was
lacking.
13.1.4 Application of force
Robbery can be committed in two ways - either by the application of actual violence or by threats
of violence. Assault can be committed in these two ways also. The violence must be aimed at Y's
person, that is his bodily integrity (Pachai 1962).The violence may be slight Y need not be
injured. Robbery is committed if X injures Y and takes property from him while he (Y) is
physically incapacitated, provided X at the time of assault intended to take it (Mokoena 1975; L
1982 ).
Threats of violence
Robbery is committed even if there is no actual violence against Y: a threat of
physical violence against Y if he does not hand over the property, is sufficient (Ex
parte Minister of Justice: in re R v Gesa, R v De Jongh 1959, Benjamin 1980). Y submits,
through fear, to the taking of the property. Thus Y need not necessarily be physically
incapacitated. The threats of violence may be express or implied.

Causal link between violence (or threats thereof) and the acquisition of the property
There must be a causal link between the violence or threats of violence and the acquisition of the
property. If X acquires the property not as a result of the violence (or threats), but as a result of
some other consideration or event, he does not commit robbery. The judgment in Pachai 1962
illustrates this rule. X made telephone calls to Y in which he threatened Y. Y reported the
telephone calls to the police, who then set a trap for X in Y's shop. X entered the shop, demanded
money and cigarettes from Y, and aimed a pistol at Y. Y then handed over the money and
cigarettes to X. At that stage the police were hiding in the shop and immediately after the handing
over of the property, arrested X. The court held that Y did not hand over the property to X as a
result of X's
threats, but in the course of a pre-arranged plan together with the police which was aimed at
securing X's arrest. X was not found guilty of robbery but was found guilty of attempted robbery.

If X steals something from Y, and then uses violence to retain the property (to prevent Y from
regaining his property), or to avoid being caught by the police he does not commit robbery. He
may be convicted of two separate offences of theft and assault (John 1956; Ngoyo 1959). If X
only wanted to assault Y, and after having knocked him unconscious for the first time discovers
his (Y's) watch lying in the road and then only hits on the idea of taking it, and in fact does so, he
does not commit robbery, but the two separate offences of assault and theft (Malinga 1962;
Marais 1969).

Usually violence or threats of violence precede the acquisition of the property. In Yolelo 1981 the
Appellate Division held that there is no absolute rule that requires the violence to precede the
acquisition. If there is a close connection between the theft and the violence that these can be
seen as connecting components of one and the same course of action, robbery may, be committed,
even though the violence does not precede the taking of the property. In this case X was in the
process of stealing certain articles from Y's house, when Y caught him red-handed in the
house. X assaulted Y and incapacitated her by gagging her with a napkin, tying her arms and
locking her up in the bathroom. X then continued to search the house for money and arms. If one
considers all the facts of this case, it is, however, difficult to assume that the assault on Y took
place only after X had already completed the theft.

The ``bag- and cell phone-snatching cases''

Does X commit robbery if with a quick, unexpected manoeuvre he snatches Y's
handbag, which she is clutching under her arm, and runs away with it without Y
offering or being able to offer any resistance? In Sithole 1981 the Natal court held that the
handbag snatcher commits robbery, and not merely theft. In this case Y was carrying her handbag
clutched under her armpit. X was behind her and suddenly grabbed it and ran off with it. In this
case the court expressed the view that for handbag snatching to
amount to robbery, it is sufficient if X intentionally uses force in order to overcome the hold
which Y has on the bag for the purpose of carrying it or if X intentionally uses force to prevent or
forestall such resistance as Y would ordinarily offer to the taking of the bag, if she were aware of
X's intentions. The judge emphasised that it is not necessary for Y to offer resistance or to
try to retain possession of the bag. In Mofokeng 1982 and Witbooi 1984 the judgment in
Sithole was followed by other divisions of the Supreme Court.
In Salmans 2006 the question before the court was whether the grabbing of a cell phone out of the
complainant's hand, constituted robbery or merely theft. Upon an extensive review of the case
law and academic opinion, the court concluded that any force applied to the person of a victim,
however slight, was sufficient to constitute robbery. The court argued that the physical grabbing
of a handbag or a cell phone out of a complainant's hand is a physical intervention necessary for
dispossession. To ``grab'' is, in the court's words, ``to seize suddenly and roughly'' . It does
not matter whether such an act is labelled "force" or ``violence''. Because it is a physical act
against the person of another, it complies with the definition of robbery and does not merely
amount to theft. The decision in Salmans was cited with approval in S v Mambo 2006.
If Y does offer resistance - she clings on to her handbag or cell phone while X pulls it away
from her or drags her, it is self-evident that there is actual violence and, X's conduct amounts to
robbery (Hlatwayo 1980).
Property need not be on the victim's person or in his presence
In Ex parte Minister van Justisie: in re S v Seekoei 1984 X violently attacked Y and forced her to
hand him the keys to her shop which was two kilometres away. He then tied her to a pole, using
barbed wire, and drove her car to the shop, where he stole money and other property. The trial
judge refused to convict X of robbery, for he was of the opinion that it was a requirement for
robbery that the property should be on the victim's person or in his presence at the time of the
theft. The Appellate Division held that the trial judge had erred in this regard, that for robbery no
such requirement in fact existed, and that X should have been convicted of robbery.

ACTIVITY
Discuss whether X may be convicted of robbery in the following instances:
(a) X threatens Y that he will hurt her physically if she does not hand over her handbag to X. Y,
fearing that X will carry out his threat, gives her bag to X.
(b) In a quick, unexpected movement from behind, X snatches Y's handbag which she is holding
under her arm. X runs away with the handbag. Y sustained no injuries as a result of the incident.
FEEDBACK
(a) X may be convicted of robbery. A mere threat of physical violence against Y if she does not
hand over the property, may lead to a conviction of the completed crime.
(b) X may be convicted of robbery. He intentionally used force in order to forestall the resistance
which Y would normally have offered had she known beforehand what X had in mind. See the
decision in Sithole and Salmans supra.

Punishment
13.1.9.1 General
Prescribed minimum sentences are also applicable to robbery capital punishment and corporal
punishment may no longer be imposed. Since a fine is not a suitable form of punishment for so
serious a crime as robbery, the only type of punishment that comes into the picture for this crime
is imprisonment.
13.1.9.2 Prescribed minimum periods of imprisonment
Before 1997 the courts used to have a free discretion. Section 51 of the Criminal Law
Amendment Act 105 of 1997 now provides mandatory minimum periods of imprisonment to be
imposed by a court upon convicting X of certain types of robbery. The reason for
the creation of these mandatory minimum periods of imprisonment is an attempt by the
legislature to combat robbery more effectively by deterring would-be robbers and by exacting
more suitable retribution for the commission of this crime Montgomery 2000. In Dodo 2001the
Constitutional Court rejected the contention that the provisions of section 51 are unconstitutional.
Section 51 provides that if a person has been convicted of robbery
. when there are aggravating circumstances or
. involving the taking of a motor vehicle (``motor hijacking'')
a court must impose the following minimum sentences:
. fifteen years in respect of a first offender
. twenty years in respect of a second offender
. twenty five years in respect of a third or subsequent offender

13.1.9.3 Circumstances in which a court is not bound to impose prescribed minimum

sentence
There are cases where a court is of the opinion that the imposition of minimum periods of
imprisonment would very harsh and unjust. The legislature has created a mechanism whereby a
court may be freed from the obligation of imposing a minimum sentence.
According to subsection 3(a) of section 51, a court is not bound to impose one of
the mininum periods of imprisonment if there are ``substantial and compelling
circumstances'' which justify the imposition of a lesser sentence than the prescribed one. A
court may impose a period of imprisonment which is less than the period prescribed by the
legislature. ``Substantial and compelling'' are crucially important words when applying
subsection 3(a). Ensure that you remember these words for
examination purposes.
RECEIVING STOLEN PROPERTY
You must study the discussion of the crime in Criminal Law 521±523 on your own.
13.2.1 Elements of the crime
(1) receiving
(2) stolen goods
(3) unlawfully and
(4) intentionally (which includes knowledge of the fact that the goods are
stolen).
SUMMARY
Robbery
(1) Definition of robbery: see definition above.
(2) Robbery can be defined very succinctly as theft by violence. The violence may
be either actual or in the form of a threat of violence.
(3) There must be a causal connection between the violence and the obtaining of
the property. This means inter alia the following: X merely wishes to assault Y,
and in fact does so. After the assault Y lies unconscious on the ground. At that
stage X discovers for the first time that Y is wearing a valuable watch. X takes the
watch for himself. X is then not guilty of robbery, but of assault and theft.
(4) If X snatches Y's handbag, which she is clasping under her arm, away from her
and runs away with it, he does not, according to the courts, commit only theft, but
in fact robbery, because he intentionally forestalls any possibility of Y's offering
any resistance.
(5) It is not required for robbery that the property should necessarily be on the
person of the victim or in his presence when the violence takes place.
Receiving stolen property
(6) The correct, complete name of this crime is ``receiving stolen property,
knowing it to have been stolen''.
(7) Definition of this crime Ð see definition in Criminal Law 521.
(8) A person who commits this crime renders himself, at the same time, guilty of
being an accessory after the fact to theft. Since persons who are accessories after
the fact to theft are usually regarded as thieves (ie perpetrators of theft), the crime
of receiving overlaps the crime of theft.
(9) The crime can be committed only in respect of property that is capable of being
stolen.
(10) X need not necessarily touch the property when he receives it. Neither is it
necessary for him to receive the property with the intention of keeping it for
himself; he also commits the crime if he receives it with the intention of keeping it
temporarily for somebody else.
(11) X must know that the property is stolen, or he must foresee the possibility that
it may be stolen and reconcile himself to such possibility.

TEST YOURSELF
(1) Define (a) robbery and (b) receiving stolen property, knowing it to have been Stolen.
(2) Can a person commit robbery if he obtains property not by means of actual violence,
but only by means of threats of violence? Discuss with reference to the case law.
(3) With reference to case law, discuss the requirement for robbery that there should be a
causal connection between the violence and the obtaining of the property.
(4) Does X commit theft or robbery if in a quick, unexpected movement he snatches a
handbag from Y, who is clutching it under her arm, and runs away with it?
(5) Can somebody who has received property knowing it to have been stolen, be
convicted also of theft or of being an accessory to theft?
(6) Discuss the requirement for the crime of receiving stolen property, that X must have
received the property.
(7) Discuss the culpability requirement in the crime of receiving stolen property.

STUDY UNIT14 Fraud and related crimes

FRAUD
(Criminal Law 531±540; Case Book 253±255)
14.1.1 Definition
Fraud is the unlawful and intentional making of a misrepresentation which causes
actual prejudice or which is potentially prejudicial.
14.1.2 Elements of the crime
(1) misrepresentation
(2) which causes or may cause prejudice, and which is
(3) unlawful and
(4) intentional
14.1.3 The misrepresentation
The first requirement for fraud is that there must be a misrepresentation. This is
the conduct requirement of the crime - a deception by means of a falsehood. X must, represent
to Y that a fact or set of facts exists which in truth does not exist.
(1) Form that the misrepresentation may take - generally take the form of writing or speech,
conduct other than writing or speech sufficient a nod of the head signifying
consent (Larkins 1934).
(2) The misrepresentation may be express or implied. In the general course
of events, somebody who buys goods, not by paying cash, but on credit, implicitly represents that
at the time of purchase she is willing to pay for them or intends to pay for them in the future, and
that she believes she will be able to do so. If at the time of purchase she in fact has no such
intention or belief, she misrepresents the state of her mind (Persotam 1938).
(3) The misrepresentation may be made by either a commissio (positive act) or
an omissio (omission). In most cases the misrepresentation is made by means of a commissio. A
mere omission by X to disclose a fact may, in the eyes of the law, amount to the making of a
misrepresentation, if there is a legal duty on X to disclose the fact. A). In terms of the
Insolvency Act 1936, an insolvent person is obliged to disclose the fact that she is insolvent to
any person from whom she receives credit amounting to
more than R20.

(b) from considerations other than the terms of a statute where a court is of the opinion that X
should have acted positively to remove a misconception which would, in the natural course of
events, have existed in Y's mind. In Larkins supra X informed Y on 24 August that his salary for
the month would be deposited in his banking account on 30 August. On the strength of this, Y
lent him money. X failed to mention that, prior to 24 August, he had ceded his entire salary for
the month to some other person. He was convicted of fraud on the strength of his omission.

In Yengeni 2006 X, a member of parliament failed to disclose to parliament a benefit negotiated

for himself in breach of a parliamentary code of conduct. The court held that although the breach
of the parliamentary code of conduct in itself did not amount to fraud, X could be convicted of
fraud because he was under a legal obligation to speak and had, by his deliberate failure to
disclose the benefit, intended to mislead parliament.

It has sometimes been stated (eg in Larkins supra 92) that a mere false promise as to the future
cannot be equated to a misrepresentation. The misrepresentation must refer to an existing state
of affairs or to some past event, but not to some future event (Feinberg 1956). This contention is
misleading, as a person who promises to do something at some future stage implies when making
the promise that she intends fulfilling it. If this is not in fact her intention she is guilty of a
falsehood regarding an existing state of affairs in that she implies that she has a certain belief
or intention which she in fact does not have (Persotam supra).

An important consequence of the above is the rule which has developed that a person writing
out a cheque and handing it to another is generally deemed to have implied that at that stage she
believes there are sufficient funds in her banking account to cover payment of the cheque when
it is presented to the bank Deetlefs 1953.
The prejudice
14.1.4.1 General
We now come to the second element of the crime, the requirement that the misrepresentation
must cause actual prejudice or be potentially prejudicial. Mere lying is not punishable as
fraud. The crime is only committed if the lie brings about some sort of harm to another. The
harm is referred to as prejudice. The person to whom the false representation is made is
prejudiced. Example X falsely represents to Y that the painting she is selling to Y is an original
painting by a famous painter and therefore worth a great amount of money, whereas it is in fact
merely a copy of the original and
worth very little (if any) money. Actual prejudice is not required; mere potential
prejudice is sufficient to warrant a conviction. Nor is it required that the prejudice be
of a patrimonial nature. (tangible/economic).
14.1.4.2 Prejudice may be either actual or potential
Even if the prosecution has not proved that the misrepresentation resulted in
actual prejudice, X may still be convicted if it is proved that her misrepresentation
was potentially prejudicial.
Assume X has insured with an insurance company all articles belonging to her, against theft. She
claims an amount of money from the insurance company on the ground that certain articles
belonging to her have been stolen. Her allegation that the articles have been stolen is false. If the
insurance company pays her the money she claims, the company would have suffered actual
prejudice. However, after she put in her claim, the
company discovers articles concerned were not stolen and that X's claim was false. It refuses
to pay X her claim. Can X be convicted of fraud? Answer is ``yes'', because although the
company has not suffered any actual prejudice, X's misrepresentation resulted in potential
prejudice.
What is the meaning of ``potential prejudice''?
(1) Means that the misrepresentation looked at objectively, involved some risk of prejudice, or
that it was likely to prejudice.
(2) ``Likely to prejudice'' means there should be a possibility of prejudice Heyne 1956
This means that what is required is that prejudice can be, not will be, caused.
(3) Possibility of prejudice should not be too remote or fanciful (Kruger 1961).
(4) The prejudice need not necessarily be suffered by the representee prejudice to a third party, or
even to the state or the community in general, is sufficient Myeza 1985.
(5) It is not relevant that Y, the victim, was not misled by the misrepresentation;
it is the representation's potential which is the crucial issue. Thus in Dyonta 1935 X attempted to
sell glass as diamonds to Y. Both X and Y knew that the articles were glass and not diamonds. X
was nevertheless convicted since the ``representation that the stones were diamonds was capable
in the ordinary course of events of deceiving a person with no knowledge of diamonds and, that
being so, the misrepresentation was
calculated to prejudice ...'' It makes no difference whether or not Y reacts to the
misrepresentation, or whether X's fraudulent scheme is successful or not Isaacs 1968
(6) Since potential prejudice is sufficient, it is unnecessary to require a causal connection between
the misrepresentation and the prejudice. Even where there is no causal connection, there may still
be fraud, provided that one can say that the misrepresentation holds the potential for prejudice. A
successful misrepresentation is not required for fraud.

14.1.4.3 Prejudice may be either proprietary or non-proprietary in nature

Prejudice is proprietary if it has to do with a person's property or material possessions -money, or
something which can be converted into money. Fraud involving
non-proprietary prejudice are the following:
(1) writing an examination for another holds potential prejudice for the education authorities
(Thabetha)
(2) submitting a forged driver's licence to a prosecutor during the trial of a traffic
offence (Jass 1965)
(3) making false entries in a register reflecting the sale of liquor prejudices the state in its control
of the sale of liquor (Heyne supra)
(4) laying a false charge with, or making a false statement to the police (Van
Biljon 1965)
(5) Failing to disclose to parliament a benefit negotiated for oneself in breach of a parliamentary
code of conduct (Yengeni supra). The prejudice, or potential prejudice suffered is that parliament
and its individual members cannot function properly without correct information and accurate
knowledge of a particular matter before it which has to be considered.
Unlawfulness
Compulsion or obedience to orders may operate as grounds of justification. The fact that Y is
aware of the falsehood is no defence. Any fraudulent misrepresentation is unlawful and
unlawfulness does not play an important role in this crime.
Intent
According to the general principles relating to intent, X's intent must relate to all the requirements
of the crime other than the intent requirement. Apart from intention
relating to unlawfulness X's intent must cover the following:
The intent relating to the requirement of misrepresentation means that X must know, or foresee
the possibility, the representation she is making to Y is untrue.
Intent relating to requirement of prejudice means that X must know, foresee the possibility, that
Y or some other party may suffer actual or potential prejudice as a result of her misrepresentation
(Bougarde).
There is a distinction between an intention to deceive and an intention to
defraud. Deceive: an intention to make somebody believe that something which is false is true.
Defraud: the intention to induce somebody to embark, as a result of the misrepresentation, on a
course of action prejudicial to herself (Isaacs supra 191). Deceive is intention relating to the
misrepresentation, and the defraud is intention relating to both misrepresentation and the
prejudice. It is intention to defraud which must be established in order to convict somebody of
fraud. The mere telling of lies which the teller thereof does not believe will cause the person to
whom they are told to act upon them to his prejudice, is not fraud (Harvey 1956).
Attempt
Because potential prejudice is sufficient to constitute fraud, the view is held that there can be no
such crime as attempted fraud, because even if the misrepresentation is not believed, or even if Y
does not act on the strength of the representation, potential prejudice is present and
consequently fraud is committed (Nay 1934 ; Smith 1952). In Heyne 1956 the Appellate
Division held that attempted fraud is possible. This will arise in the case where the
misrepresentation has been made, but has not yet come to Y's attention, example where a letter
containing a misrepresentation is lost in the post or intercepted.

ACTIVITY
Can X may be convicted of fraud in the following circumstances?
(i) X tells his wife, Y, that he is going on a business trip. In the meantime, he is going with his
friends to a rugby test match.
(ii) X goes to a very smart restaurant. She orders a bottle of champagne and an expensive meal.
She tells the restaurant owner that she is waiting for her boyfriend. The truth is that she has
neither an appointment with a boyfriend nor an intention to pay for the meal. After having
finished her meal, she tells the restaurant owner that her boyfriend, who did not arrive, was
supposed to pay for the meal; she has no money.
Accordingly, she fails to pay for her meal.
(iii) X is caught by a traffic officer for speeding. Y asks X for her particulars. She gives him a
false name, ID number and address.
FEEDBACK
(i) It is clear that X made a misrepresentation to Y. However, the mere telling of a lie does not
amount to fraud. There must be prejudice or at least potential prejudice involved. One may argue
that even if there is potential prejudice in this case, it is remote and fanciful, and therefore not
sufficient to sustain a conviction of fraud.
(ii) X may be convicted of fraud. By ordering a meal, X represented by her conduct that she was
able and willing to pay for it. Since she had no honest belief in her ability and willingness to pay,
she commits fraud.
(iii) This is a straightforward example of fraud. Prejudice need not necessarily be uffered by the
representee. Prejudice to the state or the community in general is sufficient.

FORGERY AND UTTERING (tape)

Study the discussion of this crime in Criminal Law 540±543 on your own.
THEFT BY FALSE PRETENCES
(Criminal Law 543±544)
14.3.1 Definition
A person commits theft by false pretences if she unlawfully and intentionally obtains
movable, corporeal property belonging to another, with the consent of the person from
whom she obtains it, such consent being given as a result of a misrepresentation by the
person committing the offence, and she appropriates it.
14.3.2 Elements of crime
(1) a misrepresentation by X to Y
(2) actual prejudice (ie harm or loss) suffered by Y, in that she parts with her
property by allowing X to take possession of it
(3) a causal connection between the misrepresentation and the prejudice
(4) an appropriation of the property by X
(5) unlawfulness (6) intention

General character of crime

This crime can be both as a form of theft and as a form of fraud. What happens when X commits
this crime is first she commits fraud by making a misrepresentation to Y, secondly Y, as a
result of this misrepresentation, ``voluntarily'' hands over movable, corporeal property to X, and
thirdly X appropriates this property. Fraud followed by a theft. Example, X goes to Y's house
and falsely represents to Y, a housewife, that she (X) repairs television sets, Y's husband
requested X to fetch their television set for servicing. On the strength of this misrepresentation Y
allows X to remove the set from their home. X disappears with it and appropriates it to herself. X
uses misrepresentation to obtain Y's consent to taking the TV, thereby excluding any resistance
by Y to the taking. Cases such as these are treated as theft because it is assumed that, Y's
``consent'' is not regarded by the law as valid consent: consent induced by fraud
or misrepresentation is not regarded as valid consent.
Theft by false pretences is unnecessary, because overlaps with fraud. Thus if the crime
were to disappear, it would always still be possible to charge X with, and convict
her of, fraud. Every case of fraud does not involve theft by false pretences, since X can commit
fraud without obtaining or appropriating movable, corporeal property – e.g. where X writes an
examination in Y's place, misrepresenting to the examination authorities that she is Y.

SUMMARY
FRAUD
(1) Definition of fraud see definition above.
(2) The misrepresentation in fraud is the presentation of a fact which does not
exist, and
(a) may be made in speech, writing or in conduct
(b) may be made expressly or tacitly
(c) may consist in either a commissio or an omissio
(d) is not made through a mere false promise as to the future.
(3) The misrepresentation in fraud must cause actual prejudice or be potentially
prejudicial to another.
(4) The prejudice required for fraud may be
(a) either actual or potential, and
(b) either proprietary or non-proprietary in nature.
(5) Because of the wide interpretation of prejudice, there need not be an actual
causal connection between the misrepresentation and the prejudice required.
(6) In fraud X's intent must relate to both the misrepresentation and the
requirement of prejudice.
(7) In the case of Heyne 1956 (3) SA 604 (A) the Appellate Division decided that
attempted fraud can be committed if the misrepresentation has not yet come
to the complainant's attention.
Forgery and uttering
(8) Forgery is a form of fraud in which the misrepresentation takes place by
means of forgery.
(9) The crime of uttering takes place when the forgery is brought to the attention
of someone else.
(10) In the crimes of forgery and uttering, our courts give a wide interpretation to
the concept of ``document''.
(11) In forgery the document is regarded as false if it purports to be something
other than it is.
Theft by false pretences
(12) Theft by false pretences always involves fraud, which is then followed by theft of
the property concerned.
(13) In cases of theft by false pretences Y seemingly consents to part with her
property in favour of X, but this consent is not regarded by the law as valid
consent.
TEST YOURSELF.
(1) Define fraud, forgery and uttering and theft by false pretences.
(2) Discuss the nature of the misrepresentation in fraud.
(3) Discuss the element of prejudice in fraud.
(4) Discuss the requirement of intention in fraud.
(5) Is attempted fraud possible? Discuss in the light of Heyne 1956 (6) X forges a
document unlawfully and shows it to Y with the intention of defrauding her. Of
which crime or crimes can X be convicted? Discuss.
(7) Will it make a difference to your answer in the previous question if X did not forge
the document herself, but nevertheless passed off the forged document to Y with the
intention of defrauding her?
(8) Is there a forgery of a document in the following instances?
(a) X only writes a falsehood on a piece of paper.
(b) X only changes the date which already appears on the document.
(c) X draws up a document which falsely purports to be a copy of a non-existing
document.
(9) Compare theft by false pretences with ordinary theft.
(10) Explain why theft by false pretences can be regarded as a form of Fraud.

STUDY UNIT15 Crimes relating to damage to property.

BACKGROUND
Criminal law protects interests in property by punishing those who damage property. The general
crime used for this purpose is malicious injury to property. Malicious injury to property overlaps
with the crime of arson, which is a particular form of malicious injury to property (Motau
1963).

MALICIOUS INJURY TO PROPERTY

(Criminal Law 545±548)
15.2.1 Definition
Malicious injury to property consists in unlawfully and intentionally
(1) damaging property belonging to another person or
(2) damaging one's own insured property with the intention of claiming the value
of the property from the insurer.

Elements of crime
The elements of the crime are the following:
(1) damaging
(2) property
(3) unlawfully and
(4) intentionally
15.2.3 The property
must be corporeal and movable or immovable cannot commit the crime in respect of one's own
property the owner of property is free to do with his property what he likes. The property should
belong to another - courts have held that X commits the crime if he sets fire to his own insured
property in order to claim its value from the insurer of the property (Gervais 1913; Mavros 1921;
Van Zyl 1987).
15.2.4 Damage
Damage
Damage is difficult to define in abstract terms. It includes the total or partial destruction of the
property e.g. where an animal is killed or wounded (Laubscher 1913), or the loss of the property
or substance (draining of petrol from a container) and the causing of any injury (whether
permanent or temporary) to property. There can be damage even where the original structure of
the property is not changed, e.g. where a statue is painted Bowden 1957. It will usually be
assumed that there is damage if the property has been
tampered with in such a way that it will cost the owner money or at least some
measure of effort or labour to restore it to its original form (Bowden supra 150).
Unlawfulness
Otherwise unlawful injury to property may be justified by
(1) statutory provisions giving X the right to destroy, wound or catch trespassing
animals (Oosthuizen 1974)
(2) necessity, for instance where X defends himself against an aggressive animal
(Jaffet 1962)
(3) official capacity, for example where a policeman breaks open a door to gain
access to a house in which a criminal is hiding
(4) consent by the owner of the property

Intention
The crime can only be committed intentionally. In practice the crime is described
as ``malicious'' injury to property. The use of the word ``malicious'' may be misleading because it
creates the impression that X has to act with an evil or malicious motive. X's motive is in fact not
a relevant consideration (Mnyanda 1973).
ARSON (Tape )
You must study the discussion of this crime in Criminal Law 548 on your own.
ACTIVITY
X sets fire to his house and his car, intending to claim the value of the property from his insurer.
X, in fact, gets paid by the insurer for the ``damage'' that he had suffered. Of which crimes can X
be convicted?
FEEDBACK
X may be convicted of arson in respect of the immovable property (his house) and
of malicious injury to property in respect of the movable property (his car). He may also be
charged with fraud. He unlawfully and intentionally made a misrepresentation to the insurer
which prejudiced the company inasmuch as the company compensated him financially.
SUMMARY
Malicious injury to property
(1) Definition of malicious injury to property Ð see definition above.
(2) The property must be corporeal and may be either movable or immovable.
(3) It will usually be assumed that there is damage if the property has been
tampered with in such a way that it will cost the owner money or at least
some measure of effort or labour to restore it to its original form.
(4) Intention is a requirement for the offence. The perpetrator's conduct need not
be accompanied by an evil or malicious motive.
Arson
(5) Definition of arson Ð see definition in Criminal Law 548.
(6) Arson can only be committed in respect of immovable property. If a movable
thing is set on fire, it amounts to malicious injury to property.
(7) Intention, and more particularly intention to damage the property by setting
fire to it, thereby causing patrimonial harm to somebody, is required.
TEST YOURSELF
Malicious injury to property
(1) Define malicious injury to property.
(2) Complete the following statement: In malicious injury to property the property must
be corporeal and may be either ......................................... or .........................................
(3) Explain whether someone may commit malicious injury to property in respect of his
own property.
(4) Explain the meaning of the concept ``damage'' in this crime.
(5) Name and illustrate the grounds of justification which may be raised on a charge of
malicious injury to property.
Arson
(6) Define arson.
(7) Complete the following statement: The crime of arson can be committed only in
respect
of ........................................ property.
(8) Which crime is committed if movable property is set on fire?
(9) Can a person commit arson in respect of his or her own property? Refer to authority.
STUDY UNIT16 Housebreaking with intent to commit a crime
DEFINITION
Housebreaking with intent to commit a crime consists in unlawfully and intentionally
breaking into and entering a building or structure, with the intention of committing some
crime in it.
The elements of the crime are the following:
(1) breaking and entering
(2) a building or structure
(3) unlawfully and (4) intentionally

BREAKING AND ENTERING

The requirement of an act in this crime consists of two components, namely
(1) breaking into the structure
(2) entering it

Breaking
The word ``breaking'' is an act causes damage to the building or structure. In most cases where
this crime is committed, there may be some degree of damage to the building caused by X, it is
not a requirement for liability for this crime that actual damage be
inflicted to the building or structure. All that is required for an act to amount to a breaking is
the removal or displacement of an obstacle which bars entry to the building and which
forms part of the building itself Meyeza 1962; Ngobeza 1992. The word ``breaking'' is a
``term of art'', that is an artificial concept.
The following do not amount to a ``breaking in'' (since there is no displacement of an
obstacle forming part of the building):
. walking through an open door into a building
. climbing through an open window into a building
. stretching one's arm through an open hole in a wall of a building
(Makoelman 1932; Rudman 1989).
Most obvious act qualifies as a breaking in is:
physically breaking a door, window, wall or roof of a building (in order to gain
entry into the building).
Acts that qualify as a breaking
. merely pushing open a closed (even though not locked) door or window Faison 1952..
merely pushing open a partially closed door or window (Moroe 1981)
X displaces an obstacle which bars entry into the building and which forms part of the
building itself.
If, in her effort to gain entry into the house through an open window, X merely shifts a flower pot
which is placed in the window sill to one side, her act does not
qualify as a breaking in because the flower pot does not form part of the building
or structure itself. If she pushes a blind in front of an open window to one side in order to gain
entry, her act does qualify as a breaking in, because the blind is attached to the window and
therefore forms part of the building (Lekute 1991). It has been held that a curtain in a window is
not an ``obstruction'', and that X therefore does not ``break into'' a house if she merelypushes a
curtain in an open window to one side in order to gain entry (Hlongwane 1992).
To break out of a building after having entered it without a breaking in cannot lead to a
conviction of housebreaking (Tusi 1957). If X walks through an open door into the building,
while inside the wind blows the door shut and X has to open the door (or even break it down) in
order to get out of the building, there is no ``breaking into'' for the purposes of this crime.

Entering
Mere ``breaking'' without ``entering'' is not sufficient to constitute the crime (Maruma 1955. It
may amount to an attempt to commit the crime. Like the concepts ``building'' and ``breaking'',
entering also has a technical meaning. The entry is complete the moment X has inserted any
part of her body, or any instrument she is using for that purpose, into the opening, with the
intention of thereby exercising control over some of the contents of the building or structure
(Melville 1959).
BUILDING OR STRUCTURE
Any structure which is used for human habitation or for the storage or housing of property. It is
difficult, from the cases, to deduce a general principle that can be applied in order to decide
whether a particular premise or structure qualifies as a premise or structure in respect of which
the crime can be committed. We submit that the following principle, which is advocated in
both De Wet and Swanepoel and Snyman Criminal Law p. 550, should be followed in this
respect: if the structure or
premises is used for the storage of goods, it must be immovable, but if it is used
for human habitation, it does not matter whether it is movable or immovable.
Structures such as the following (which are all immovable) always qualify as structures in respect
of which the crime can be committed:
. a house
. a store-room
. a factory
. business premises
Do not qualify as structures in respect of which the crime can be committed:
. a motor car
. a tent which is used only for the storage of goods (Abrahams 1998)
. a railway truck used for conveying goods (Johannes 1918)
. a fowl-run made of tubes and wire netting (Charlie 1916)
. an enclosed backyard (Makoelman 1932)
A caravan is a ``house on wheels'', a movable thing that can be used for either human habitation
or the storage of goods, or both it does not readily fit into the classification set out in the principle
applied above. The position in our law, as far as the question whether a caravan can be
broken into, may be summarised as follows: Generally speaking, the courts accept that a
caravan does qualify as a structure, even if the
breaking-in takes place at a time when nobody is living in it (Madyo 1990; Temmers 1994),
but that it does not qualify if, although it can be moved, it is used merely for the purpose of
storing goods (Jecha 1984). (In Temmers the court rejected the criterion which we advanced
above, but we submit that the alternative, very vague criterion applied by the court in this case,
should not be followed. You may, if you wish, read the criticism of the criterion advanced in
Temmers, yourself, in Criminal Law 550±551.)

UNLAWFULNESS
The breaking into and entering of the building or structure must be unlawful. The crime is not
committed if one breaks into and enters one's own house, or a room which one shares with
someone else, or if one has permission to enter (servant) (Faison supra; Mashinga 1976).

INTENTION
The intention required for this crime comprises the following two completely
distinct components:
(1) X must have the intention of unlawfully breaking into and entering the
house or structure.
(2) Furthermore, X must have the intention of committing some other crime
inside. Mere housebreaking without such an intention does not amount to
the crime. Housebreaking without an intention may, be punishable as malicious injury to
property. The further crime which X intends to commit must be a different one from the
housebreaking itself (Melville supra). In practice housebreaking is mostly committed with the
intention to steal, but in principle charges of housebreaking with intent to commit any crime
are competent. The legislature has even sanctioned charges of housebreaking with the
intention of committing a crime unknown to the prosecutor Criminal Procedure Act 51 of
1977.

SUMMARY
(1) Definition of crime Ð see definition above.
(2) The act consists in the (a) housebreaking and (b) entering of a building or
structure.
(3) The ``breaking'' consists in the removal or displacement of any obstacle
which bars entry to the structure and which forms part of the structure itself.
(4) The entering is complete the moment X has inserted any part of her body, or
any instrument she is using for that purpose, into the opening, with the
intention of thereby exercising control over some of the contents of the
building or structure.
(5) The building or structure may be any movable or immovable structure which
is, or might ordinarily be used for human habitation, or any immovable
structure which is or might be used for storage or housing of property.
(6) The intention required for housebreaking comprises the following two
distinct components, which must both be present:
(a) X must have the intention of unlawfully breaking into and entering the
building or structure.
(b) X must have the intention of committing some other crime inside of the
building or structure.

TEST YOURSELF

(1) Define the crime of housebreaking with the intention to commit a crime.
(2) Complete the missing word: The ``breaking'' consists in
the .............................................
or .............................................. of any obstacle which bars entry to the structure and
which forms part of the structure itself.
(3) Which of the following acts amount to an act of ``breaking''?
(a) X pushes open a partially closed window or door.
(b) X stretches her hand through an open window in order to steal a radio standing on the
window-sill.
(c) X walks through an open door or climbs through an open window.
(d) X opens an unlocked door.
(4) At what stage is the entering complete?
(5) Name and explain the two components of the intention required for the crime of
housebreaking.