Chapter 1: Definition, Origins and Fundamental Values of South African Criminal Justice

I) National Criminal Law

Branch of N. Law defining certain forms of human conduct as crimes and providing for
punishment of those w/criminal capacity who unlawfully and w/guilty mind commit a crime.
If proceedings are instituted by a public authority there is a culpability requierement w/potentially
severe consequences. Distinguished from other proceedings eg: delict due to “punitive’
characterization-determines whether due process or fair trial safeguards apply to proceedings.

S35 of C-rights of arrested, detained and accused persons.

Victims not central to trial but have other rights-must be kept informed, not subjected to
demenaing cross-exam etc. Increasing NB victim impact statements after conviction but prior to
sentancing. s274(1) of the Criminal Procedure Act-court may, before sentancing, receve such
evidence as it thinks fit iot determine proper sentance. These statements can also be utilised
under Child Justice Act, which defines them as “a sworn statement by a victim or someone
authorised by them (on behalf) which reflects the physical, psychological, social, financial or
other consequences of the offence for the victim.

Although punishment (deprivation of liberty) is seen as a fundamentala feature amd prime

objective, restorative justice processes are gaining traction, These teend to involve victim,
offender and community. (CJA- restorative justice for child offender). Compensation for vistims
is also NB-s300 of CPA in cases of damage or loss of property.

II) International Criminal Law

The 60th Ratification of the Rome Statue caused the International Criminal Court to come into
operation on 1 July 2002. This court has jurisdiction over genocide, crimes against humanity,
war crimes and crimes of aggression (pending definition). Complementarity principle-ICC will
not intervene where national criminak jurisdictions have acted, are acting or where case is not
sufficiently grave. ICC will only have jurisdiction where nation is “unwilling or unable to genuinely
carry out the investigation or prodecution”. Ratification neednt be of home state but only where
crime was committed. SA ratified the Rome Statute of ICC, incorporationg its definitions of
genocide, crimes against humanity and war crimes into domestic law. Obliged to apply
constitution and to consider intl law and only apply where appropriate. Use ICC definition but
interpret ito C.

One NB difference between Rome Statute and SA criminal law (check Article 28).

III) Transnational Criminal Law

Domestic jurisdictions have enacted laws punishing organised crime eg money laundering,
racketeering and corruption. This law arose out of need for cooperation between states to
combat organised crime and terrorism.

IV) Brief History of South African Criminal Law

Mixed hybrid system. Reception of English criminal law greatly facilitated by Transkeian Penal
Code of 1886.

V) Basic Values of the Criminal Law

Crime involves the infringement of the State or someone else’s rights, just as arrest, trial and
punishment interferes with indiv. Rights. Ch 2 of C- s53 right to due process, s11 right to life etc.

A) SURVEY OF THE CONSTITUTIONAL CHALLENGES TO THE CRIMINAL LAW IN ITS

LEGISLATIVE FORM

1) Abortion: Christian layers Assosciation of SA v Minister of health-challenged the choice

of termination of pregnancy act 92 of 1996-s11 right to life, “everyone” does not include
foetus
2) Capital Punishment: Makwanyane- death penalty unconstitutuional (s277 of CPA)
3) Corporal punishment: Williams-s294 of CPA violate s10 and s11(2) of C and not
salvagable by s33 of IC. Aldo Christian Education.
4) Found in possession of/recieving stolen property: Manamela case-majority exercised a
reverse onus from the offense of statutory recieving (s37 GLAA) replacing it with an
evidential burden
--stopped at page 16, unsure of relevance.