LCRM UNIT 10: crime against a person

Murder and culpable homicide:

Murder (ROSLAN DYER) Culpable homicide (NOLAN)
Deff: murder is the unlawful and intentional Def: the unlawful and negligent causing of
causing of the death of another human the death of another human being
being

Intention determined subjectively. Negligence determined objectively.

Murder
Deff: murder is the unlawful and intentional causing of the death of another human being.

Section 11:

Examples:
1. Premeditated
2. Alcohol
3. Mercy

Punishment 1917= death penalty. Abolished in 1995.

Current punishment: life long imprisonmen

Elements of murder:
1.unlawfulnnes 2.intention 3.Causing death 4.Another living
(Includes criminal (Includes conduct) human being
capacity)
-Valid defense The state must Causation theories is Unborn fetus
(justification): prove beyond a applicable doesn’t count.
Necessity and reasonable doubt Mshumpa
statutory that the accused
authorization, then had the intention to
no guilt will be cause the unlawful
found. death.

-invalid defense: 1.determined

euthanasia subjectively
(consent to be 2.perosn isn’t
killed) is not negligent =
defense culpable homicide

in other words,
there was a will to
kill and knowledge
of unlawfulness
Case law
S V mshumpa

Facts:
Accused 1 (father of the unborn child of complainant) and Accused 2 agreed to end the
live of the complainant’s UNBORN BABY (THE UNBORN BABY WAS 32 WEEKS) Accused 1
arranged with Accused 2 to shoot both himself (in the shoulder) as well as the
complainant in the stomach with the purpose of killing the UNBORN BABY The plan was to
be executed in a way that made it look like a kidnapping and robbery. On the morning of
14 February 2006, Accused 2 (Mshumpa) indeed approached the couple and shot Accused
1 in the shoulder and the complainant (twice) in the stomach. Accused 2 then took off
with certain items of Accused number 1, including his watch. Accused 1 then got back into
the car and managed to drive the complainant and himself to the hospital. Both were
fortunate and survived, but the unborn baby died. Accused 1 and 2 were prosecuted of
various charges including the MURDER of the unborn baby.

Legal question:
Whether it was appropriate for the court to develop the common law so to include the
killing of an UNBORN BABY in the definition of murder?

Decision and reason for court’s decision

No, but both Accused 1 and 2 convicted of attempted murder of the complainant.
They both foresaw the causing of death of the complainant with the attempt to kill the
UNBORN BABY The current definition of murder refers to the unlawful and intentional
killing of another person, born alive. The extension of the definition to include an
UNBORN BABY, will be against the principle of legality The fact that the complainant was
pregnant served as an aggrivating factor in sentencing the accused.
S v Grotjohn
Facts:
The accused’s wife indicated that she wished to commit suicide. She was in a wheelchair
and suffered from depression. On the day of the incident, her husband handed her a
loaded gun, saying that she should shoot herself because she was a burden. She took the
gun and shot herself. The accused was charged with murder but he was acquitted. The
Minister of Justice referred the following questions to the Supreme Court of Appeal:

Legal question
1. Does a person who instigates, assists or puts another person in a position to commit
suicide , commit a crime?
2. If so, what crime?

Other legal questions:

3. Is suicide a crime?;
4. Was there a sufficient casual link between the conduct of the accused and the death of
his wife as the last act was her own and independent?

Decision of court
1. Yes, a persons who instigates, assists or puts another person in a position to
commit suicide., is guilty of a crime.
2. Depending on the circumstances (type of fault present), such a person may
be guilty of murder, culpable homicide or attempted murder in the case where the
attempt is unsuccessful.
Decisions of other legal questions:
3. suicide is not a crime;
4. There was a sufficient casual link between the conduct of the husband and death of
woman irrespective of the fact that the very last act was her own independent act.

Culpable homicide:
Def: the unlawful and negligent causing of the death of another human being

Elements of murder:
1.unlawfulnnes 2.Negligence
(Includes criminal capacity)
Unlawful (no valid defence), causing of -reasonable person test (objective test)
the death (causation) of another human. -would a reasonable person have killed the
(not yourself). deceased?
-would he have taken steps against a
Same as murder foreseen death?

-reasonable test done by Drs/experts

1. versai doctrine rejected
Unlawful conduct=guilty
2.partial excuse theory rejected (exceeding
boundaries of self-defence)

Attempted culpable homicide doesn’t exists;

you cant attempt to be negligent

Case law
S v van As
Facts:
During a quarrel, the accused gave D a hard slap with his right hand on D’s Cheek. D, who
was a very fat man, lost his balance, fell backwards and hit his head on the cement floor.
He became unconscious and died. The trial court convicted him of culpable homicide He
appealed against the conviction.

Legal question:
Was the accused negligent in causing the death of the victim?

Decision and reason for the decision:

Conviction of culpable homicide was replaced by one of common assault.

Reason:
The reasonable person would not have foreseen the possibility of death
Assault:

Three types of assault:

1.common assault 2.A with the intent to do 3.sexual assault
bodily harm
More serious than common A. Indecent assault (a common
law offence), was replaced by
ADITIONAL ELEMENT: sexual assault.
J88-weapon, degree of
violence, part of body injuries. (Now a statutory offence in
terms of the Criminal Law
(Sexual Offences and Related
Matters) Amendment Act 32 of
2007.

Section 5 of the Act defines

Sexual assault:
Any person who unlawfully
and intentionally sexually
violates a complainant without
his/her consent, is guilty of the
crime of sexual assault.

Elements of assault:
1.Unlawfulness 2.Intent 3.direct/indirect 4.inspiring a belief
bodily integrity:
-grounds of -any types of dolus is direct: (Waves fists, pretends
justification: sufficient touching/contact to stab etc.)
1.Private defence -there is no such thing Stabbing; hitting Must be threatening
2.Oublic Authority as negligent male Victim must fear the
3.Consent to harm assault (matle) Indirect: assault against him
Cosent: drs and -attempted assault Injury without (Belief that the
sport exists but limited rouchung accused is going to
Pull chair away; assault him)
something in drink. Not sufficient if only
Spit in face (Marx) accused believes that
he inspires such fear
in the victim.
Subjective state of
anxiety of the
threatened person
must thus be tested.
tested subjectively
Causes direct or
indirect contact
between:
 -genitals and body;
anus and body;
breasts (of female)
and body;
-genitals, anus,
breasts of women
and body of an
animal;
-genitals, anus and
breasts of women
and any object
(including those
resembling genitals or
anus of humans and
animals)

Contact between
mouth and
-genitals (male and
female); anus;
breasts (of female);
mouth; body parts
that can be used in
act of sexual
penetration
(FINGERS, TOES ETC)

-body parts that can

cause sexual arousal;
-body parts that
causes sexual arousal
to perpetrator;
-object resembling
genitals/anus of
human/animal or
breasts of female;
-genitals/anus of
animal.

Case law
S v Matle

Facts:
The accused was a difficult man. On the day of the incident, he did not like the way that his
girlfriend made his bed. He threw a cane at her – she ducked and it hit and injured his mother
standing behind her. A few days later his mother died due to pneumonia. He was prosecuted of
culpable homicide but convicted of assault with intent to cause grievous bodily harm He appealed.
 Legal question:
Did the accused have intention to injure his mother ?

Decision
No, The conviction of dolus eventualis as well as the sentence were set aside.
Reason:
The state could not even prove intention in the form dolus eventualis as the room was very small
(3x3 meters). It was unlikely that the accused foresaw the possibility of missing his girlfirend . and
hitting his mother

S v Smith:
Facts:The accused was a ploice officer and part of a group of police group who set their dog upon
3 allegedly illegal immigrants as part of a training session. The victims sustained serious injuries.
The accused was convicted of assault with the intent to do grievous bodily injury and sentenced to
7 years imprisonment of which 2 years were suspended. He appealed against the sentence.

Legal question:
Whether the sentence was appropriate (fit and proper?)

Decision:
yes, the sentence was confirmed

Reasons:
Although this is a harsh sentence for assault with the intent to do grievous bodily injury, the
attack/conduct was premiditated and the accused have done damage to the image of the police.

Rape:

Rape
Focus only on Sexual Assault and Rape as examples of sexual offences, but there are many
other sexual offences.

OTHER:
1.Bestiality
2.Necrophilia
2.Prostitution

Criminalisation of rape protects section 10 (violate dignity) and 12 (violate bodily integrity)
of the Constitution.

Definition of rape
(Act 32/2007):
Rape was for many years a common law offence.

Now a statutory offence

Section 3 of Act 32/2007:
Any person who unlawfully and intentionally commits an act of sexual penetration with a
complainant, without the consent of the complainant(male or female), is guilty of the
offence of rape.

Statutory crime no longer a common law crime

(protects) Equality – both men and women can now be perpetrators and victims of rape

Partners to the crime

1. Perpetrator: both male or female
2. Victim: both male or female

ELEMENTS:
• UNLAWFULNESS
• INTENTION
• SEXUAL PENETRATION (defined) conduct element of rape
• WITHOUT CONSENT (defined)

Unlawfulness (unlawful unless valid justification but only ground of justification is

capacity)
Grounds of justification:
(Dr that conduct Job isn’t unlawful thus can’t be convicted of crime even necessity being
forced to do so )

1) Official capacity
2) Consent? Needs to prove a lack of consent (element of the crime )

Question:
❖Can a husband rape his wife (wife rape her husband)? Is that unlawful?
YES. Has to be consent
Clarity: Sec. 56(1) of Act 32/2007 – husband and wife can rape each other.

Intention
• Must have intention to have act of sexual penetration without consent (be aware of the
act and aware no consent)
• Was the accused impression that he had permission? (Mistake of fact)
You under impression you had permission and consent.

Sexual penetration conduct element of rape

• A classic rape– The genital organs of one person into or beyond the genital organs, anus
or mouth of another person.
• B–Any other part of the body of one person or, any object, including any part of the
body of an animal, into or beyond the genital organs or anus of another person.
• C – The genital organs of an animal, into or beyond the mouth of another person

FORCE ANOTHER PERSON TO RAPE? = COMPELLED RAPE (S4 on this act)

NOTE: Sexual violation= sexual assault (contact of genitals) – extremely broad

Absent of consent
Consent must be completely voluntary:

• Submission is NOT consent (women over powered and gives up)

• Consent obtained by way of force/any intimidation (any threat) = not valid consent
• If you abuse your power of authority – consent not valid.
• Consent acquired through fraud is not valid consent in the:
a) Misrepresentation with regards to identity.
(Example -the victim believed it was her husband with whom she committed an act
of sexual penetration – error in personae)
b) Misrepresentation regarding the nature of the act.
(Example – misrepresent sex as “operation”)

(Valid consent where the victim agrees to commit act of sexual penetration, believing that
she will be cured from, for example, a medical condition.) why cause you know you are
going to to proceed in the act.

• What about false information given about status (wealth, etc)? – consent = valid
(slept with him because he was rich but lied about it)
• Sleeping, unconscious or intoxicated people CANNOT CONSENT – depending on degree
of intoxication. (Must be able to appreciate what she/he is consenting to ....)
• Mentally retarded/deficient – can normally not consent –depending on degree – see
above.
• Younger than 12 – cannot give consent.
• HIV-positive? (plays a role in sentencing)
If you withhold you status of + and don’t inform person and engage then that can
amount to rape and exclude consent. Cause that person wouldn’t engage if that a
person knew your were = because t can influence consent.

Case law
S v SM abuse of authority

Facts:
The appellant was convicted in a high court of, inter alia rape and was sentenced to 15
years imprisonment. He appealed against the conviction and sentence. The complainant
was the appellant’s adoptive daughter. She was adopted at the age of 15. A close and
intimate relationship developed between the appellant and complainant. The appellant
then started to demand privileges from the complainant for allowing the complainant to
contravene some of the grounding orders imposed by her mother. These privileges
included kissing her, rubbing her breasts, touching her private parts, and performing oral
sex on him. Later that year he had sexual intercourse with her. The complainant objected
but did not resist (submission) at the end because she felt that she had no choice but to
go along with what he was doing. She testified that she had nowhere else to go and might
have been returned to a place of safety, should she cause trouble for her adoptive family.
 It would also cause trouble for the church where the appellant was a senior pastor.

Legal question:
1) Whether the appellant had consent ?
2) Whether the sentence was appropriate? (15 years)

Decision of court and reason for decision:

1) no, there was not valid consent. The conviction of rape was confirmed.

Reason :
The appellant abused the power of authority that he had - complainant was entangled in
a web of rewards and punishments at the hands of an elder whose intrusive conduct
became increasingly difficult to resist. He had no real consent.
2) Yes, sentence was appropriate and confirmed.

Reason:
The trial court did not induce a sentence of shook.
S v Willemse extended definition of rape applied

facts
The accused (boy raised as part of the family) raped the victim one afternoon inside her
home. The accused at first raped the victim vaginally and thereafter stopped, turned her
on her side and raped her anally as well. He was convicted of two separate rape charges
and given life imprisonment as sentence. He appealed against the conviction as well as the
sentence.

Legal Question:
1)Whether the conduct of the accused amounted to two separate rape
2) Whether the life imprisonment (sentence) was appropriate.

Decision and reason for decision:

1)yes, the conviction two separate rape was confirmed.

Reason:
1)According to the court, there were two separate thought processes involved (he
wanted to rape the victim two different ways) which justifies the conviction of two
separate rape charges.
2) The sentence was not appropriate

Reason:
Due to mitigating factors the sentenced was reduced to 20 years imprisonment.

Crimen inuiraia
Crimen inuiraia
Def: the unlawful and intentional and serious infringement of the dignity(s10) and
privacy(s14) of another r
Elements of Crimen inuiraia
1.Unlawfulness 2.Intention 3.serious infringement 4.dignity and
privacy
Grounds of Any type of dolus = Factor to take consideration Dignitas refers to
justification: sufficient in order to determine both terms Dignity
Official capacity; whether a violation was (refers to self
necessity VIOLATION serious enough: respect)
Can take place in
Serious various ways • Time and place (In front of •the victim must
violation (verbally/conduct) other?) by aware of
=unlawful 1) Spit in face • Respective ages violation in case of
2) Expose • Sex and social status violation of dignity.
everyday abuse: 3) Sexually assault (female/employee/employe (2 Exceptions:
de minimus non r Children; mentally
curat lex (little Verbally (abusive • Whether the insult has a retarded)
matters isn’t language) : racial or sexual connotation
taken seriuous) usually suggestion • Whether the insult is •Both subjective
of sexuality or addressed to a public official and objective test
-s v sharp racism on duty applied in the case
Name calling Factors of violation of
Self study : Violation of dignity.
everyday privacy:
language, no (Peeping Tom)/ Privacy:
violation of reading Victim does not
dignity confidential have to be aware
messages etc. of violation
(someone looking
while you are
undressing for
example)

Case law
-s v sharp
Legal question:
Was dignity of the complainant impaired?
Decision:
No
Reason:
The use of this word didn’t amount to a violation of Ys dignity since the word formed part
of everyday language
S v Holiday
Facts:
a roof and looking through a skylight while the complainant was undressing. She was
informed about this by 2 pedestrians outside the building who saw the accused on the
roof. He was convicted of crimen iniuria and appealed.

Legal question:
 Is it a requirement for conviction of crimen iniuria that the victim be aware of the violation
of privacy?

Decision:
Conviction of crimen iniuria was confirmed

Reason:
1)awareness is not a requirement for conviction in the case where privacy is violated, only
where dignity is violated.
2) This was a serious violation of privacy
S v Momeberg
Facts:
he appellant had been convicted of crimen iniuria in that he said the following to the
traffic officer: “Jou lae donnerse bliksem, ag fock- off jou lae bliksem, jy is laer as ‘n
donnerse vark.” He uttered those words upon receiving a traffic ticket from the officer.
The traffic officer was in uniform, with another officer and the incident took place in the
main street of Mosselbay. The accused appealed against the conviction.

Legal question:
Was the conduct of the accused conduct for a conviction of crimen iniuria

Decision:
Conviction of crimen iniuria was confirmed.

Reason:
The conduct serious enough because
1) the officer was uniform,
2) it happened in front other people – in the main street of Mosselbay,
3) the officer was on duty and
4)the accused spoke loud

Criminal defamation

Criminal defamation: s10 and s 16

Def: the unlawful and intentional publication of matter concerning another which tend to
injure the other persons reputation.

DISTINGUISH CRIMEN INIURIA FROM CRIMINAL DEFAMATION:

Iniuria Defamation
Dignity and privacy Reputation
Words/conduct towards victim Publication of accusation to others

1.unlawfulness 2.intent 3.publication

Grounds for justification: -must be proved (animus 1.witing
1.cosent Iniuriandi) 2. verbale
 2.necessity -douls eventualis is sufficient
-intent to publish as well as
Special grounds for justi: intent to defame
Exclusive to CRM
defamation
-Defamation pub
= truth and in the
interest of the public
=boils down the
reasonable commentary
=allegation made at
privileged occasion

Violation of reputation
A person’s reputation or fama is violated when a publication exposes him to hatred,
contempt or ridicule. (Diminish your esteem)

Case law:
S v Hoho
Facts:
The appellant was convicted on 22 charges of criminal defamation for publishing several
leaflets in which he defamed various persons. In these leaflets allegations of, amongst
others, fraud and corruption were made. He appealed against the conviction.

Legal question:
1. Does our law still recognize criminal defamation. as a crime?
2. Is it constitutional to recognize criminal defamation as a crime?
3. Is serious an element of this crime? (Should serious of reputations be referred to
criminal courts?)

Decision:
1. yes, criminal defamation still a crime in our law.
2. yes, the existence of criminal defamation. as a crime is constitutional.
3. no, not only serious cases of criminal defamation. to be referred to criminal
courts.

Reason:
The limitation of section 16 is reasonable and justifiable

The conviction of criminal defamation was confirmed.

Witchcraft offences:
Witchcraft
Deff: In an African context usually refers to the cultural belief that a person , who has magical or
supernatural powers has influence on another person’s property, mind or body..... (mostly elderly
women who are accused)

How is it dealt with- 3 mian offences

1. Witchcraft accusation
– section 1(a); (b) Accusing another of using witchcraft to cause harm.
2. Witch identification
– section 1(a); (c)Identifies /hire a person to identify the person who has caused harm by using
witchcraft
3.Practicing witchcraft
– section 1(d); (e); (f)Where you advise another how to bewitch, where you use witchcraft to
harm/damage; use witchcraft to find stolen property for gain etc

Witchcraft suppression act 3 of 1957

Section 1:

 a) accuses (imputes to) another person of causing, by supernatural means, any disease or
injury to another person or damage to property; or identifies (names/indicates) another
person as a wizard;
 b) while admitting (professing) or pretending to use any supernatural power, witchcraft or
sorcery, accuses (imputes to) another person of causing the death, injury, disease or
disappearance of another person or damage to property;
 c) employs any witchdoctor, witch-finder or any other person to identify (name/indicate)
any person as a wizard;
 d) admits (professes) knowledge of witchcraft, or the use of charms, and advises any
person how to bewitch, injure or damage any person or thing;
 e) on the advice of any witchdoctor, witch-finder or other person or on the ground of any
pretended knowledge of witchcraft, uses any means which is calculated to injure another
person or damage property;
 f) for gain pretends to exercise or use any supernatural power, witchcraft or sorcery, or
undertakes to tell fortunes, or pretends from his skill in or knowledge of any occult
science to discover where and in what manner anything supposed to have been stolen or
lost may be found, is guilty of an offence and can be punished..... (Complies with principle
of legality)
Sanctions:
• Contravening:
Section 1(a); (b) – max 10 years
If victim dies = 20 years. Section 1(c);(d) or (e) = max 5 years.
Section 1 (f) = 2 years. (Complies with principle of legality)

Effect of witchcraft criminalisation within cultural context:

• Complex issue
• Witchcraft accusation and killing of witches still part of
culture/belief of certain communities
• Punishing the killing of alleged witches as murder creates conflict between criminal law
principles and the cultural belief in witchcraft.
• It also requires the balancing of conflicting constitutional rights, namely, right to life and be free
from all forms of violence (section 11 and 12) and right to exercise one’s culture, religion and
beliefs (section 31).

Criticism against the act:

South African Pagan Council
(Self-defined witches and bear testimony to the existence of witchcraft but are neither evil nor
criminals)
Witchcraft is part of their religion and the Act violates section 15 (religion); section 16 (freedom of
expression), section 9 (equality) and section 10 (dignity).
Ask for repeal of Act and to apply common law to witchcraft related offences.

Traditional Healers Organisation

Ask for repeal of Act and replacement with new legislation. Also asking:
A definition of “evil” witchcraft:
 For the regulation of harmful practices associated with witchcraft.

Way forward
 Repeal Witchcraft Suppression Act
 Implement Prohibition of Harmful Witchcraft Practices Bill
 Proposal: Not to define witchcraft but rather “harmful witchcraft practices”
 Allow practice of witchcraft as part of religion (positive witchcraft) and criminalise only
harmful practices related to witchcraft (evil witchcraft).
 1) Witchcraft accusations, 2) Witch finding, 3) Crimes associated with harmful witchcraft
and 4) Muti crimes to be criminalised.
 Sentences also reduced -according to new proposed Bill
 Also new = duty to report

Practical scenario:
• Ntabiseng, a child from a community, is found hanged in the field. According to the police
investigation, it was a suicide. However, there is a strong belief in witchcraft in the community and
A consults B to “smell out” the witch or wizard responsible for the child’s death.
• On advice of B, A names the suspected culprits, including C (the deceased), who allegedly killed
the child for witchcraft purposes. C is called forward at a community meeting to answer the
allegations against her and is subjected to a mob trial. The crowd take the law into their own
hands and kill C in a brutal and horrific way.
• You are the prosecutor – state the offences that you will prosecute A, B and the crowd of.

Can witchcraft serve as defence in criminal proceedings

• M and his 2 brothers visit a girl. The mother of the girl does not approve of this and inform them
that they are all going to die. One
month later the 1 brother dies in an accident.
• Few days later the second brother develops a headache ...and also dies a week later.
• M believes that he is next and approaches the police for assistance. They refuse to provide any
assistance.
• M now approaches the mother (whom he believes is a witch) and ask her to accompany him to a
diviner. She refuses and say: “You
will not see the setting of the sun”
• M now takes the matter into his own hands and kills the mother.
You are instructed to defend M who faces a murder charge...

Possible defences:
• Private defence?
• Lack of criminal capacity?
• Putative private defence? (Mokonto) • Only a mitigating factor?
(State v Manundu and Others)

Kidnapping:

Kidnapping
Protects section 21 of the constitution.

Definition: The unlawful and intentional depriving a person of his freedom of movement and/or if
Such a person is a child. His parents or custodians of their control over him.

Elements of kidnapping:
1. Unlawfulness 2. Intention 3. Deprivation of 4. Another
F.OM person.
• A court order, • Intent must be • This crime can take • The kidnapped can
consent, official proved with respect place through violent be a man, woman or
capacity (to arrest to each element of or cunning a
someone) or the crime. deprivation of child.
necessity/ emergency • It must therefore be freedom. (Long –
(medical attention) the accused’s example)
can amongst others intention to deprive • Removal from one
make the kidnapping the kidnapped place to another is
lawful. person not essential. Persons
• Consent to of his freedom of who are held as
kidnapping by movement and the hostages in one place
children is not a valid accused must be are also deprived of
defence. aware of the their freedom of
• Even when a minor unlawfulness of his movement.
gives consent = still conduct.
kidnapping because • The duration during
the parent is which a person is
deprived of control. deprived of his
freedom can be
indicative of intent –
but a long period of
time is not a
requirement.
(See S v Mellors)

Case law:
S v Mellors
Facts:
The accused entered a library where he pointed a pistol at the librarian and ordered her to sit
down. He then piled books against the door to prevent anyone entering or leaving the room. Later
he ordered the librarian to make certain phone calls which she did. After two and a half hours, he
gave himself up and allowed the librarian to leave the room. He was convicted of kidnapping the
librarian and appealed.

Legal question:
Whether the period of After two and a half hours was long enough for a conviction of kidnapping?

Decision:
Yes, conviction of kidnapping was confirmed.

Reason:
The period was long enough and the victim was deprived of her F.O.M during this period.
Case law: