CRW2603/201/1/2018

Tutorial Letter 201/1/2018

Selected Topics of Criminal Law

CRW2603

Semester 1

Department of Criminal and Procedural Law

IMPORTANT INFORMATION

Please register on myUnisa, activate your myLife e-mail addresses and make sure that you have regular access to the myUnisa module

website, as well as your group website.

Note: This is an online module and therefore it is available on myUnisa. However, in order to support you in your learning process, you will also receive some study material in printed format.

BARCODE

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SELECTED TOPICS OF CRIMINAL LAW CRW2603

TUTORIAL LETTER 201 OF 2018 (FIRST SEMESTER 2018)

Dear student,

When you read this tutorial letter you would have

completed the first assignment for this subject, and

will undoubtedly have experienced some of the

fascinating and frustrating aspects of Selected

Topics of Criminal Law. I trust that you have found the first assignment interesting, and that you

have learnt from them.

The purpose of this tutorial letter is to give you feedback on the first and third (self-evaluation)

assignment. It will also provide some general guidance on how to prepare for the exam.

The next tutorial letter – Tutorial Letter 202 – will give feedback on the second assignment.

Please note that this will be a short tutorial letter, and it will be available on myUnisa only. It will

not be sent out in printed form. (The management at Unisa made a decision that short tutorial

letters will no longer be printed, but be available on myUnisa only.)

Online Resources

In my attempt to help you in your studies, I have created a number of electronic resources on

myUnisa. For example, there are some podcasts to help you with your study material, and there

are also videos to help you with your assignments and exam. Please feel free to make use of

these resources, as it is created for your benefit. Here are a few screenshots to showcase some

concepts.

Tutorial Letters for 2018 (First Semester):

= Tutorial Letters already received

= Tutorial letters that must still be sent to you

Tutorial Letter 101 of 2018

Tutorial Letter 201 of 2018 (This tutorial letter)

Tutorial Letter 202 of 2018 (on myUnisa only) Note that all tutorial letters will be available electronically on myUnisa.

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The videos can be viewed directly on YouTube at:

Answering Scenario Type Questions in CRW2603

Part 1 (2 min 05 seconds)

https://youtu.be/fDSRSK0_3Ws

Part 2 (2 min 52 seconds)

https://youtu.be/8kqaYFA05Lg

Part 3 (7 min 56 seconds)

https://youtu.be/XprD7vfCZQI

Suggested Solution to Assignment 1

When answering a scenario-type question, I want to draw your attention again to section 8.5 in

Tutorial Letter 101 where you are given an example on how to answer scenario-questions. This

will help you greatly when answering such a question in the exam.

Also note that a question like this might count more marks in the exam. If so, you will have to

discuss the principles of the crime in more detail.

Assignment 1: Question 1

Johnny is an amateur pilot, and loves flying around in his new, two seater aeroplane. He often flies around his neighbourhood to see anything which might interest him. However, he sometimes flies so low over neighbouring houses that some people have complained to him about his negligent behaviour. He also knows it is against air traffic regulations to fly so low over a populated neighbourhood.

One day, while flying low over his neighbourhood, Johnny loses control over his aeroplane, and crashes into the ground. He miraculously survives, but three pedestrians are killed.

1.1. Which crime, if any, did Johnny commit? Explain fully by referring to the elements of the crime. (10)

Note: Do not discuss any air traffic violations. Discuss the main crime that was committed, and focus on the fact that people were killed. Look carefully at the element of culpability.

1.2. What would the position have been if police later found out that one of the three pedestrians that were killed, was Johnny’s ex-girlfriend, and that Johnny intentionally crashed the aeroplane in order to kill his ex-girlfriend? (5)

[15]

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Suggested solution

1.1. Introduction

Johnny can be charged with culpable homicide. Before he can be convicted of this crime, he will have to comply with the requirements thereof. (1)

Definition

Culpable homicide is the unlawful negligent causing of death of another human being. (1)

Elements of the crime

The elements of this crime are:

(1) the causing of the death (2) of another person (3) unlawfully and (4) negligently (max. 2)

The only difference between murder and culpable homicide lies in the form of culpability required for each. In the case of murder, intention is required, while in the case of culpable homicide the perpetrator must have acted negligently in causing the death of the deceased. (1)

Conduct

Causing of death

This requirement of the crime of culpable homicide is very similar to the corresponding element in respect of the crime of murder, and most of the same principles apply. (1)

However, with the crime of culpable homicide the conduct element may also be satisfied by X’s failure to act in certain situations. In some cases, a person’s death may be the result of X’s negligent failure to act where he (X) had a duty to act positively to prevent the death of the deceased. In other words, the conduct element in the crime of culpable homicide may also be satisfied by an omission on the part of X. (2)

Application

Johnny caused the death of the three pedestrians, i.e. there is a strong causal link between Johnny’s actions and the death of the pedestrians. He complies with the element of the act for culpable homicide. (1)

Unlawfulness

The conduct (or omission) should be in contravention of the legal convictions of society, and there should not be a ground of justification on which the perpetrator can rely. (1)

Culpability

Both culpable homicide and murder involve the unlawful causing of death of another human being. However, murder requires the intentional causing of death, whereas culpable homicide requires negligence. (1)

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It would be incorrect to say that culpable homicide requires the unintentional death of the deceased, as this could easily imply that the perpetrator had neither intention nor negligence. The question that should always be asked is whether the reasonable person would have foreseen the deceased’s death. If the answer is in the affirmative, then the perpetrator should have foreseen the deceased’s death, and his conduct is negligent. (2)

It should be noted that culpable homicide is the only common-law offence which does not require intention as an element. (1)

The killing of another person is negligent if the perpetrator should have foreseen that he might cause the death of the other person but did not refrain from his act, even though a reasonable person in the perpetrator’s position would have foreseen this. (1)

Application

Johnny should have foreseen that the three pedestrians could be killed. He acted with negligence, which is the required form of culpability for culpable homicide. (1)

Conclusion

Johnny complies with the requirements of culpable homicide, and can be convicted thereof. (1)

1.2. Introduction

When a deceased is unlawfully killed, the perpetrator can be charged with culpable homicide or murder. In the case of culpable homicide, negligence is required, and with murder, intention is the required form of culpability. (2)

Scenario

In the scenario it is mentioned (in question 1.2) that Johnny intentionally crashed the plane into the ground to kill his ex-girlfriend. This means that he directed his will towards the commission of the crime, and knew that his conduct is unlawful. (2)

Thus, if Johnny intentionally killed his ex-girlfriend, he can be convicted of murder. (1)

[15]

Assignment 3: Self-evaluation

Question 1

1.1 2

1.2 3

1.3 1

1.4 2

1.5 2

1.6 2

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1.7 2

1.8 1

1.9 3

1.10 1

[20]

Question 2

Question 2.1

Introduction

The two hundred workers can be charged with public violence. (1)

Definition

Public violence is the unlawful and intentional commission, together with a number of persons,

of an act or acts that assumes alarming proportions and that are intended to disrupt public law

and order in a violent manner, or to disrupt the peace of others. (1)

Protected interest

The reason why we have a crime like public violence, is to protect public peace and tranquillity.

If a society does not feel safe anymore, many situations of violence and anarchy can occur. As

a result of this any form of public violence should be stopped to ensure a safe and stable

society. (1)

Conduct

The definition of public violence mentions that the act of public violence can consist of any act

that assumes alarming proportions and that is intended to disrupt public law and order. From

this it is clear that one cannot simply state which specific acts will qualify as an appropriate act

for public violence. Any act which meets the necessary requirements will therefore be sufficient.

(1)

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Application

In the given facts the two hundred workers assaulted people and damaged property to the

amount of R1 million. These actions took on alarming proportions. (1)

Number of perpetrators

The definition of public violence simply mentions that a number of people must act together to

commit this crime. It is therefore clear that a single person cannot commit the crime - a group of

persons must be involved. (1)

What constitutes a group is, however, not clear at all. Some court cases, like the cases of

Terblanche 1938 EDL 112 and Clarke 1961 N 652 held that three to five persons would be

sufficient to commit this crime, while other cases like Mcunu 1938 NPD 229 and Nxumalo 1960

(2) SA 442 (T) held that eight or even ten people were not sufficient to constitute the crime.

Every situation will therefore be looked at on its own merits. (2)

Application

In the given facts, the two hundred workers performed this act. It is quite clear that this number

of people is quite sufficient to constitute a group for the purposes of public violence. (1)

Seriousness of the act

The question regarding the seriousness of the act is very important. The act must assume

alarming proportions before it can amount to public violence. (1)

Application

In the given facts, it is clear that the group’s actions took on alarming proportions. A manager

was assaulted, and damage to property (the office building and computers) amounted to R1

million. (1)

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Acting in concert

For public violence to be present, the perpetrators must have acted in concert. This means that

the people must have acted together. (1)

It is not necessary for the perpetrators to have planned the act together, and the common

purpose could have evolved spontaneously or even tacitly. (1)

Application to facts

The people in the current set of facts acted in concert. However, it is unlikely that they planned

these actions beforehand. It most probably evolved spontaneously. Even so, it is clear that they

acted in concert, with a common purpose in their mind. (1)

Unlawfulness

With public violence, the element of unlawfulness is dealt with in a peculiar way. Unlawfulness

must be determined from two viewpoints: in the first instance, it must be clear that the individual

perpetrator's act is unlawful. In the second instance, it must also be clear that the group's

conduct was unlawful. (1)

Application to facts

In the given facts, each participant in the rioting group's act is unlawful because it infringes upon

the legal convictions of society (society did not condone the conduct). There is no ground of

justification that each participant of the group can rely on. (1)

The group's actions (as a group) were also unlawful. Society will not condone such action. (1)

Culpability

The required form of culpability is intention. As is the case with unlawfulness, intention should

also be examined by looking at the intention of the individual perpetrator as well as the intention

of the group. The group must have acted with a common purpose. (1)

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Application to facts

In the given facts it is clear that the group acted with a common purpose. The reason for this is

that they all had the common intention to assault the manager and damage the company’s

property. (1)

Conclusion

In the given facts, the two hundred workers will be convicted of public violence due to the fact

that all the elements of the crime were present. (1)

[10]

Question 2.2

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. (2)

Terminology

The name of this crime is somewhat confusing. The older terminology for this crime is

“malicious injury to property”, while the newer term seems to be “malicious damage to property”.

It is advised that the newer term be used, as a reference to “injury” refers mainly to something

living, such as humans or animals, and not inanimate objects as is envisaged by this crime. The

result is that the term “damage to property” is preferable. (1)

Aspects related to specific conduct for damage to property

With damage to property a specific consequence is prohibited, because it is a materially defined

crime. (1)

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This means that any conduct by the accused that causes damage to property in the defined

circumstances will be punishable. (1)

The offence may also be committed by way of an omission where there was a duty to act. (1)

The damage

What constitutes damage to property depends on the circumstances of each case. Milton

submits that property will be considered to have been damaged if it was interfered with in such

a way that it was destroyed or lost or permanently damaged or damaged with the result that it

reasonably required (or still requires) repairs to put it in the state it was before interference. The

interference must have caused damage that resulted in some loss to the owner or insurer. (3)

Where the damage is of a trivial nature the principle of de minimis non curat lex will be applied.

Where there is a complaint of damage to property, common sense should be applied to

establish whether the damage warrants criminal proceedings. (1)

The property

The property must be corporeal (physical) and can be either movable or immovable property. (1)

It must belong to another person or the owner must intend to claim the value of the damage

from an insurer. (1)

The complainant need not be the owner of the property; it will be sufficient if he/she can show

that he/she has a legally protected interest in the property. (1)

There must be physical damage to the property. This may include the total or partial destruction

of property. (1)

Damage will usually entail that the property has been tampered with in such a way that it would

cost the owner money, effort or labour to restore it to its original form. (1)

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Unlawfulness in case of damage to property

Damage of another person’s property is unlawful, unless there is a ground of justification for

such conduct. (1)

A person may damage his/her own property without acting unlawfully where there is no intention

of claiming from an insurer the value of the damage to the property. The accused may rely on

any ground of justification that excludes unlawfulness. (1)

Specific intention required for damage to property

The accused must act with the intention of causing damage to another person’s property or,

when damaging his/her own property, act with the intention of claiming the value of the damage

from the insurer. (1)

Where the accused foresees the possibility (dolus eventualis) that his/her conduct may result in

damage to property, even where his/her intention was to commit another offence, e.g. theft or

trespass, he/she will be considered to have acted with the intention of causing damage to

property. (1)

[10]

Question 2.3

Assault

Definition

A person commits assault if she unlawfully and intentionally applies force, directly or indirectly,

to the person of another, or inspires a belief in another person that force is immediately to be

applied to her. (1)

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Ways in which the crime can be committed

The act of assault may take different forms. First, it may consist in the application of force to the

person (body) of another, and may be direct or indirect. (1)

Secondly, assault may be committed by inspiring fear in the victim, and more particularly, a

belief by the victim that force is immediately applied to her. (1)

Application of force – direct

The direct application of force is the most common way in which the crime can be committed,

for example where a person is beaten. This is the form of the crime which corresponds most

closely to the ordinary layperson's idea of assault. (1)

The fact that the victim may not feel much or any physical pain is irrelevant. The perpetrator

may commit the crime even if he only spits in the victim’s face or trips her so that she stumbles.

(1)

Application to facts

In this scenario the manager was beaten up by the rioting workers. It is a clear example of

application of force to the manager. (1)

Application of force - indirect

The application of force may also be indirect. In this form of the crime the perpetrator commits

some act which results in the victim’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 travelling, or

• X frightens a horse on which Y is riding so that Y falls from the horse

(2 marks – one for the explanation and one for an example)

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Note the following two examples from our case law for convictions of assault where the

application of force was indirect:

(a) In Marx 1962 (1) SA 848 (N) X gave three glasses of wine to drink to each of two

children, aged five and seven years. The children drank the wine and became sick as a

result. The younger child 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 than

external was held to be irrelevant. (2)

(b) In A 1993 (1) SA 600 (A) 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. (2)

Inspiring fear of immediate force

Inspiring fear or a belief in the victim that force is immediately to be applied to her also

constitutes an act of assault. Here there is no physical contact with, or impact on the victim’s

body. (1)

This is a rather unusual way of committing the crime, one which, in certain ways, departs from

the layperson's conception of what constitutes assault. As a result, one should 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:

(a) The threat must be one of personal violence to the victim. Thus a threat by the

perpetrator to damage the victim's property is not sufficient. (1)

(b) The threat must be one of immediate violence. Thus a threat by the perpetrator to cause

the victim some physical harm in the future (e.g. the next day) would not qualify as

assault in this form. (1)

(c) 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 (such as to 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. (1)

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(d) The victim must subjectively believe that the perpetrator intends to carry out his threat,

and that he is able to do so. The essence of this type of assault is the intentional

inculcation of fear in the victim. If the victim does not in fact fear the threat, no assault is

committed. (1)

Application to facts

In this scenario it is very clear that the perpetrators applied physical harm to the manager

without any form of ground of justification to rely on. They have committed assault. (1)

[10]

Question 3

Introduction

The only crime that John can be charged with is murder. However, before he can be convicted

of murder, the elements of the crime need to be proved. Only if all of these elements are

present, can John be convicted of murder. (1)

Definition:

Murder is unlawfully and intentionally causing the death of another human being. (1)

The Act

The act of murder consists in causing the death of another human being. (1)

The way that the death is caused is not as important as the fact that the death is caused. (1)

When we look at the possibility that one person has caused the death of another person, it is

clear that the requirements of causation need to be proved. (1)

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Application

In the given facts it is stated clearly that Peter died of the wounds that John had inflicted upon

him. Thus a causal link between the act and the effect is present. (1)

Another human being

Before a person can be convicted of murder, it must be clear that another human being is

involved. If one kills oneself, it is not a crime (suicide, not murder). (1)

Application

John killed Peter. Peter is another human being. (1)

Considering the discussion above, it is clear that the element of the act is present. (1)

Unlawfulness

It must be clear that the act is unlawful. Unlawfulness is an objective element and it is

established by looking at the legal convictions of society. It must also be clear that there is no

ground of justification for such an act. (1)

Application

According to the legal convictions of society, John's act is unlawful. There is no ground of

justification that John can rely on. (1)

Culpability

Intention is the form of culpability that is required. The perpetrator must direct his will towards

the act and must also know that his action is unlawful. (2)

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Application

In the given facts, it is clear that John had the necessary intention to kill Peter. He directed his

will towards the crime (he walked over to Peter) and he knew that what he was doing was

unlawful (he hid the knife). (1)

Mistake

If a person thinks that he is killing an animal, but in actual fact kills a person, then intention will

not be present, because the person has made a mistake regarding one of the material aspects

of the crime. (1)

Application

In the given situation, John does not make such a mistake. It is therefore clear that the required

intention is present. (1)

The motive of the perpetrator is irrelevant. (1)

Conclusion

John complies with all the elements of the crime. He will therefore be found guilty of murder. (1)

[15]

Question 4

Perjury

Similarities:

Statements under oath are made. (1)

Statements may be oral or in writing. (1)

Differences

Common Law perjury Statutory perjury

only one statement is involved; (1) two statements are involved; (1)

it can only be committed in the course

of legal proceedings; (1)

neither of the statements have to be

made in the course of legal

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proceedings; (1)

the state must prove intention; (1) the state is not required to prove

intention;

the statement must be proven to be

false (1)

the two statements must differ from

each other, and neither of them has

to be proved to be false.

[10]

Note: you do not need to use a table format. Giving the relevant facts will suffice. Putting

it in a table format does look better though!

Question 5

Question 5.1

In order to decide whether A, B, C and D are perpetrators, accomplices or accessories after the

fact, we need to examine what each of these concepts entails:

The perpetrator

A person is a perpetrator if

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 (2)

OR

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. (2)

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The accomplice

A person is an accomplice if,

although he does not comply with all the requirements for liability set out in the definition

of the crime, and (1)

although the conduct required for a conviction is not imputed to him in terms of the

doctrine of common purpose, (1)

he engages in conduct whereby he unlawfully and intentionally furthers the commission of the

crime committed by somebody else. (1)

The accessory after the fact

A person is an accessory after the fact to the commission of a crime if, after the commission of

the crime, he unlawfully and intentionally engages in conduct intended to enable the perpetrator

of, or accomplice to, the crime to evade liability for his crime, or to facilitate such a person’s

evasion of liability. (2)

Application

A is a perpetrator because he complies with the requirements of arson. He was the person who

set the building alight. (1)

B is an accomplice because his actions do not fall within the definition of arson. He bought the

petrol, and therefore assisted A in committing the crime while not falling within the definition of

the crime himself. (1)

C is also an accomplice. He helped A to throw the petrol on the premises, but did not complete

the crime by setting the building alight. Only A did that. Therefore, C does not fall within the

definition of arson, and will be an accomplice. (1)

D is an accessory after the fact. He helped the other participants to escape justice. (1)

(12)

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Question 5.2

Nature of an accomplice

The answer to this question can be found in the accessory nature of an accomplice. A person

can be an accomplice to a crime only if there is a perpetrator. As a result, there must be at least

two role-players for an accomplice to exist — the principal perpetrator and the accomplice. (1)

It is, however, not necessary for the perpetrator to be tried and convicted for the offence before

the accomplice can be held liable. An accomplice's criminal liability is reliant on his/her own

conduct and culpability. (1)

Application to facts

If A dies in the fire, B and C can still be charged. There was a perpetrator in the scenario (A),

but it is irrelevant to B and C's criminal liability if the perpetrator was killed in the flames. B and

C will still be charged. (1)

(3)

[15]

Question 6

Theft

There are four elements that have to be present before a person can be convicted of theft in

any of its forms, namely:

(1) an act of appropriation (1)

(2) in respect of a certain type of property (or thing) (1)

(3) which takes place unlawfully and (1)

(4) intentionally (more particularly, with the intention to appropriate) (1)

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Robbery

The elements of the crime are the following:

(1) the theft of the property (1)

(2) the use of either actual violence or threats of violence (1)

(3) a causal connection between the violence (or threats thereof) and the acquisition of the

property (1)

(4) unlawfulness (1)

(5) intention (1)

Differences between theft and robbery

With robbery the thing is appropriated with violence. This is not a requirement with theft.

(1)

With robbery the possessor of the thing is present at the scene of the crime, whilst with

theft the thing it is removed while the owner is (usually) not at the crime scene. (1)

Max. 10 marks

TOTAL: 100

EXAM PREPARATION

Now that you have completed the assignments, it is time to prepare for the exam. This section

will provide general pointers that you may use with any exam.

General

Plan your answer before you start writing it. Know exactly where to begin and work according

to your plan.

Try to use as many headings as possible. This creates a good impression and the marker can

see that you are working according to a plan.

Explain the contents of the question in short paragraphs. Explain each fact that you want to

discuss in a separate paragraph. This creates a good impression and makes it much easier to

read.

If you refer to a case or an important principle, underline it. By doing so, you show the marker

what you regard as important.

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You will notice that there are quite a few questions in the study guide. We want to advise

you to answer as many questions of these as possible, as this will give you a good idea of

what to expect in the examination. It also gives you the opportunity to practise how to

answer a question in writing.

Look again at Assignment 3 (self-evaluation). Look at the question and the memorandum.

This will give you a very good idea what an exam memo looks like [this was a past exam

paper]. Try to answer your questions logically as it is set out in the memorandum.

The exam paper questions for June 2018 will have the following format:

Question 1: True/False questions – 30 marks

Question 2: Scenario type question – 15 marks

Question 3: Scenario type question – 15 marks

Question 4: Definitions – 10 marks

Question 5: Scenario type question – 10 marks

Question 6: Scenario type question – 20 marks

Total: 100 marks – 2 hours

Assignment 2

This tutorial letter is sent out before the due date for Assignment 2. The suggested solution to

Assignment 2 will be provided in Tutorial Letter 202. Note that Tutorial Letter 202 will be

available on myUnisa only, and will not be delivered by mail.

I trust that this module was interesting and insightful. All the best for the exam!

Kind regards

Dr. BJ Gordon

012 429 8652

bgordon@unisa.ac.za