Cameron Miranda
South African criminal law is the body of national law relating to crime in South Africa. South African criminal law is founded on the principle of legality, which is entrenched in the preamble of the South African Constitution. This principle dictates that the state may only inflict punishment for contraventions of a designated crime that was already in force, valid, and applicable before the contravention occurred. Common law crimes in South Africa include dangerous weapons, drug trafficking, harassment, intimidation, sexual offences, and terrorism, among others.
| Characteristics | Values |
|---|---|
| Definition of Crime | "Conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted." |
| Function of Criminal Law | To provide a social mechanism to coerce members of society to abstain from conduct that is harmful to the interests of society |
| Standard of Evidence for Criminal Conviction | Proof beyond a reasonable doubt |
| Sources of Criminal Law | Common law, case law, and legislation |
| Principle of Legality | Nullum crimen, nulla poena sine praevia lege poenali: "no punishment without a law" and "laws and punishments do not operate retrospectively" |
| Theories of Punishment | Combination theory, deterrence, prevention, and retribution |
| Hate Crimes | The public interest against discrimination is not based on black and white discrimination but rather on the perception of others as different or inferior, which can traumatize communities and damage society |
| Requirements for Liability | Unlawfulness and culpability |
| Common Law Offences | Dangerous weapons, drugs and drug trafficking, harassment, intimidation, sexual offences, teargas, terrorism, torture, public gatherings, etc. |
| Statutory Offences | Administration of justice, animal and nature conservation, corruption, counterfeiting currency, escaping from custody, vehicle theft, witchcraft, assault, bribery, forgery, kidnapping, etc. |
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Hate crimes
The new law defines hate speech as a person intentionally publishing, propagating, advocating, sharing or communicating anything to one or more persons “in a manner that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred based on defined grounds." The law also covers hate speech disseminated through electronic communications.
The law provides for several exceptions for free-speech concerns, including artistic creativity, performance or other forms of expression, academic or scientific inquiry, fair and accurate reporting or commentary in the public interest, and the interpretation and articulation of any religious conviction, tenet, belief, or writing that does not advocate hatred or constitute incitement to cause harm.
Despite these exceptions, the law has attracted criticism from some quarters for its perceived restrictions on freedom of speech. Georgia Du Plessis, a Legal Officer at ADF International, a conservative Christian advocacy group, commented that the legislation violates international legal protections for free speech and may lead to human rights abuses by censoring peaceful expression.
Previously, South Africa had no legislation covering crimes motivated by prejudice or that specifically targeted people based on factors such as race, nationality, ethnicity, sexual orientation, or religion. The introduction of this bill is a significant step forward in addressing xenophobic and homophobic violence in the country.
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Common law marriage
In South Africa, common-law marriage refers to the widely held belief that couples who live together for a certain period become married under common law. However, this is not the case. South African law does not recognise common-law marriage, and living together does not grant legal duties or marital status to a couple, regardless of the duration of their relationship.
To protect their rights and obligations, couples can enter into a cohabitation agreement, which can be verbal or written. This agreement should outline that it does not constitute a marriage and address aspects such as joint property ownership. While not mandatory, it is recommended that the agreement be in writing and signed by both parties. It can be concluded at any time during the relationship and should detail the rights and obligations of each partner.
The Domestic Partnership Bill has been proposed to grant unmarried couples legal partnership rights. This bill would allow couples to register their relationship as a domestic partnership, providing similar rights and responsibilities as a marriage.
It is important to note that South African law distinguishes between different types of marriages, including civil, customary, religious, and civil unions, but common-law marriage is not recognised as a valid form of marriage under South African law.
Some common-law offences in South Africa include dangerous weapons, drug trafficking, harassment, intimidation, sexual offences, terrorism, and public violence.
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Blasphemy
The last recorded conviction for blasphemy in South Africa was in 1968, where the editor of Varsity was convicted for covering an event that discussed the topic "Is God Dead?". The editor quoted participants as saying "We must write God off entirely" and " [God] is beginning to stink". Although the editor was convicted, they received only a caution. Since then, convictions have been rare for many decades.
Some sources suggest that the more recent South African constitution has made the blasphemy law unenforceable, due to its protections on freedom of expression, and also on anti-discrimination grounds as the offence only applies to blasphemy against Christianity. However, this has not been tested in law.
In addition to the criminal law, the civil law Equality Act (2000) forbids hate speech defined as "words" based on various grounds, including religious grounds, "against any person", with intent. However, it does not appear that in practice the Equality Act has been used as a de facto blasphemy law.
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Sexual offences
Rape, sexual assault, and compelled sexual assault are all considered sexual offences. Rape occurs when a person forces another to engage in sexual intercourse without their consent. Sexual assault occurs when a person sexually violates another person without their consent. Compelled sexual assault, also known as compelled rape, occurs when a person forces another person to witness or perform sexual acts. These acts are considered crimes and must be reported. The severity of the charges and the potential consequences of a conviction depend on the nature of the sexual offence.
In South Africa, sexual offences are often committed against women and children. According to statistics, 50% of South African women experience sexual violence in their lifetime, with 75% of men perpetrating violence against women. Additionally, one in five South African children are sexually abused by the age of 17. However, only 35.5% of sexual offences are reported, and of those reported, between 40%-60% are withdrawn, and only 8.6% result in a successful conviction.
Other sexual offences include sexual grooming, incest, child pornography, and child prostitution. Sexual grooming refers to when a person prepares a child or a person living with a mental disability to perform or witness a sexual act. Incest occurs when people who are related and not allowed to marry each other engage in sexual intercourse. Child pornography involves using a child for pornographic material, while child prostitution involves using a child or a person with mental disabilities for sexual acts in exchange for a reward or exposing them to pornography.
It is important to note that victims of sexual offences are not to blame and should seek support and report these crimes.
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Dangerous weapons
In South Africa, the Dangerous Weapons Act of 2013 defines a 'dangerous weapon' as "any object, other than a firearm, capable of causing death or inflicting serious bodily harm, if it were used for an unlawful purpose". This means that any object that can cause harm or death can be considered a dangerous weapon under the law, and possession of such weapons under suspicious circumstances is a criminal offence.
The Act specifically addresses the possession of weapons during public gatherings and demonstrations, aiming to ensure that these events are conducted peacefully and within the law. It is important to note that simply possessing a dangerous weapon during a gathering does not automatically constitute an offence. If the weapon is being used for a lawful purpose, such as in the pursuit of employment, religious or cultural activities, sports, or entertainment, then possession may be justified.
However, if there are reasonable grounds to suspect that an individual intends to use a dangerous weapon for an unlawful act, they may be found guilty and face legal consequences, including fines or imprisonment of up to three years. This provision is in place to protect the security and safety of all citizens, as guaranteed by the Constitution of the Republic of South Africa.
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Frequently asked questions
Common law crimes in South Africa are crimes that are prohibited by common or statute law and are punishable by the state alone. Common law crimes include abduction, arson, bigamy, fraud, incest, housebreaking, indecent assault, public violence, murder, rape, robbery, and treason.
The sources of South African common law are found in case law and legislation, as well as in the country's constitution, which entrenches the principle of legality.
One important principle is "nulla poena sine lege," which means "no punishment without a law." This means that the definitions of common-law and statutory crimes must be clear and settled, and penal statutes should be strictly construed. Another principle is "nullum crimen, nulla poena sine praevia lege poenali," which means laws and punishments do not operate retrospectively.
