Gavin Howe
South African criminal law is founded on the country's Constitution, the Criminal Procedure Act of 1977, other statute laws, and common law. The country's criminal justice system was established by the British in 1828, replacing the existing Roman-Dutch legal system. South Africa's criminal law system is accusatorial, with the state accusing and the accused defending. The state has the primary authority and responsibility for the prosecution of crime, with the final decision lying with the prosecuting authority. The standard of evidence required to validate a criminal conviction is proof beyond a reasonable doubt. The principle of legality dictates that the definitions of common-law and statutory crimes should be precise and settled, and that laws and punishments do not operate retrospectively. South Africa's criminal law includes various scheduled offences, such as arson, fraud, forgery, treason, sexual assault, drug-related crimes, and murder.
| Characteristics | Values |
|---|---|
| Criminal law in South Africa | Forms part of the public law of South Africa, as well as of the substantive law |
| Criminal liability | Determined by the principles of law |
| Law of criminal procedure | Focuses on the procedures used to decide criminal liability and theories of punishment |
| Standard of evidence | Proof beyond a reasonable doubt |
| Sources of South African criminal law | Common law, case law, and legislation |
| Principle of legality | The state may inflict punishment only for contraventions of a designated crime created by a law that was in force, valid, and applicable before the contravention |
| South African Constitution | Entrenches the principle of legality, with a preamble stating that South Africa is founded on the supremacy of the Constitution and the rule of law |
| Nullapoenasinglege | "No punishment without a law" |
| Definitions of common-law and statutory crimes | Reasonably precise and settled |
| Dictum nullum crimen | "Laws and punishments do not operate retrospectively" |
| Role of the state | The primary authority and responsibility for the prosecution of crime lies with the state, which makes the final decision |
| Bail | Governed by Chapter 9 of the Criminal Procedure Act, 1977; meant to minimise the impact on an accused's freedom before conviction |
| Prescription in criminal law | Limits criminal accusations to provide certainty for potential accused persons |
| Criminal procedure | Has its basis mainly in English law, with the current system introduced by the British in 1828 |
| Types of offences | Schedule 1 offences include arson, fraud, forgery, treason, and public violence; Schedule 5 offences include murder, attempted murder, indecent assault, and drug-related crimes; Schedule 6 offences include premeditated murder and multiple instances of rape |
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What You'll Learn
The principle of legality
South African criminal law is sourced from common law, case law, and legislation. The principle of legality, entrenched in the South African Constitution, upholds the rule of law and ensures that criminal liability is determined by the principles of law.
South Africa's approach to criminal law differs from other common law countries in its treatment of seditious activities and the concept of intent. South Africa considers certain acts, such as promoting feelings of hostility or interfering with law and order, as subversive to the political and social order. Additionally, South Africa imposes criminal liability for actions that hold any possibility of inciting violence, even if the connection between the act and its effect is not clear. This differs from the prevailing common law approach, which requires a clear connection between the act and its probable effect.
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The thin skull rule
The rule is also known as the "eggshell skull" rule, derived from the idea that a defendant is liable for damages even if a plaintiff had "a skull as thin as an egg's shell". This principle is particularly relevant in cases where the victim had a pre-existing medical condition that rendered them especially vulnerable to harm, such as a weak heart, haemophilia, a cerebral aneurysm, or an earlier injury. In such cases, the thin skull rule ensures that the victim is entitled to all their medical expenses and related losses, including any complications that may arise from their injuries.
For example, consider an auto accident where a driver is struck from behind. The collision may not be severe, and another driver might have walked away relatively unharmed. However, if the driver involved has weakened bones or osteopenia, they may suffer more severe injuries. In this case, the thin skull rule would apply, and the other driver would be liable for all the medical expenses and related losses, even though they did not intend to crash into someone with weakened bones.
It's important to note that defendants facing liability under the thin skull rule have two potential defences: the "crumbling skull" rule and the rule of intervening cause. The crumbling skull rule states that defendants are not liable for expenses resulting solely from a plaintiff's pre-existing medical condition. They are only responsible for the damages directly caused by their actions. Additionally, the rule of intervening cause allows defendants to argue that they are not liable for expenses if it can be shown that the injuries were pre-existing or resulted from an intervening cause.
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Criminal procedure
The sources of South African criminal procedure are the Constitution, the Criminal Procedure Act (CPA) of 1977, and other statute laws, such as the Magistrates' Courts Act, the Supreme Court Act, and the Drugs and Drug Trafficking Act. The basic principle of South African criminal procedure is access to courts, as outlined in Section 34 of the Constitution. There is no provision for trial in absentia. The Criminal Procedure Act outlines four methods to secure the attendance of an accused person in court, including arrest, summons, written notice, and indictment. The Act also details the manner in which arrests can be carried out, including with or without a warrant.
Bail is governed by Chapter 9 of the Criminal Procedure Act, which is a complex mechanism. The question of whether a High Court has the inherent power to grant bail is debated, with earlier cases suggesting that the High Court does not have this power unless explicitly granted by statute law. Male inhabitants of South Africa between the ages of sixteen and sixty are obliged to assist with an arrest if requested by a police official and can face criminal liability if they fail to comply without a lawful cause. Peace officers, including police officials, have the power to arrest without a warrant under specific circumstances, such as when a person commits or attempts to commit an offence in their presence or escapes from lawful custody.
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The right to information
In South Africa, criminal law is not codified under a single piece of legislation. Instead, it is part of a legal system called common law, which is used to determine the outcomes of cases and case law. This means that the judiciary identifies the elements of a crime and uses previous case law to determine whether a crime was committed, forming the basis of judicial precedent.
The standard of evidence required to validate a criminal conviction in South Africa is proof beyond a reasonable doubt. This ensures that the prosecution must present compelling evidence to prove the accused's guilt, providing a robust framework for fair trials. South Africa has also implemented specific laws to address sexual offences and protect vulnerable groups, such as the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, which includes a National Register for Sex Offenders.
Additionally, South Africa has a Child Justice Act, 2008, which establishes a separate justice system for children under 18 suspected of committing crimes. This system focuses on restorative justice and diversionary measures, aiming to assist children in turning their lives around and becoming productive members of society. The right to information is thus protected for minors, ensuring they understand their rights and the consequences of their actions.
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Hate crimes
South African criminal law is founded on the principle of legality, which is entrenched in the country's constitution. This principle dictates that punishment can only be inflicted for contraventions of a designated crime that was already in force, valid, and applicable before the contravention. South Africa's criminal law draws from common law, case law, and legislation.
While South Africa currently lacks legislation specifically addressing hate crimes, the country has taken steps to address this gap. In May 2024, President Cyril Ramaphosa approved the "Preventing and Combating of Hate Crimes and Hate Speech Bill," which criminalizes hate crimes and hate speech. This bill gives effect to the country's obligations under its constitution and international human rights instruments.
Hate speech, as defined by the bill, refers to intentionally communicating or sharing information with the intention to incite harm or promote hatred based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, or birth. The law also applies to electronic communications and provides for data gathering and recording on hate crimes.
Despite criticism regarding restrictions on freedom of speech, the bill includes several exceptions for free speech concerns. These include artistic expression, academic inquiry, fair reporting, and the interpretation of religious beliefs and doctrines that do not advocate hatred or incite harm.
The impact of hate crimes extends beyond individual victims, traumatizing entire communities and damaging South African society. The Victim Empowerment Programme Policy Guidelines (VEP) specifically identify victims of hate crimes as a priority target group. Additionally, the Hate Crimes Working Group is lobbying for the introduction of further policies and legislation to address xenophobic violence in the country.
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Frequently asked questions
Common law in South Africa is based on English law and was introduced when the British occupied the Cape in 1806. It has since been developed to suit local conditions.
Common law crimes in South Africa include fraud, forgery, treason, public violence, kidnapping, and drug-related crimes.
In South Africa, the State has the primary authority and responsibility for the prosecution of crimes. The views of complainants, victims, and the public may create pressure to prosecute, but the final decision lies with the prosecuting authority.
One key 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 precise and settled, and penal statutes should be strictly construed. Another principle is that the standard of evidence required to validate a criminal conviction is proof beyond a reasonable doubt.
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