Chapter 18 - The act as an element of crime

Question 1

What is a crime?

Answer 1

A crime is a human act that is in conflict with generally accepted interest of the community, that can be blamed on the perpetrator, and the consequences of which is that the perpetrator may be punished by the community.

Question 2

Briefly summarise the elements of a crime.

Answer 2

1. There must be a human act
2. The act must be unlawful
3. It must be possible to blame the act on the perpetrator. This means that the relationship between the act and the consequences of the act ill be examined.
4. The community must be of the opinion that such an act should be punished.

Question 3

What are the differences between a crime and a delict?

Answer 3

1. The parties that are harmed. In a crime, the community is harmed, whereas in a delict, individuals or agnatic groups are harmed.
2. The property that is affected. In a crime, public property is affected, whereas in a delict, the property of a particular agnatic group or individual is affected.
3. The procedure that is involved. In a crime, the matter must be tried in court in the first instance, whereas in a delict, mediation between the parties is required before legal proceedings may be instituted.
4. The punishment or compensation that is granted. In a crime, the offender is punished, whereas in a delict,, damages (in the form of money) are payable too the party who was harmed.

Question 4

Explain in depth what the act means in customary law.

Answer 4

According to African customary law, only conscious human acts constitute a crime.
Unconscious human acts, such as hurting somebody when turning over in your sleep, can therefore not constitute a crime. Acts performed by animals do not constitute a crime. A criminal act may also involve an omission, such as failure to execute an order of the ruler.

Question 5

Explain in depth cause and effect: the problem of causality.

Answer 5

The criterion used in African customary law to determine case and effect is the experience of the community. Every act that constitutes an indispensable condition for a particular state of affairs is considered a cause.

Question 6

Explain what happens in a case of more than one perpetrator and co-liability.

Answer 6

In African customary law, a broad distinction is made between persons participating in a crime (co-perpetrators) and persons assisting another person who has committed a crime (persons with co-liability or accomplices).

Question 7

Explain in depth what the co-perpetrator means in customary law.

Answer 7

If a person persuades, orders, or bribes another person to commit a crime, he/she is also considered to be participating in a crime, and such participation is punishable. It is also irrelevant whether the perpetrators are equally involved or not.

Question 8

Explain in depth what an accomplice means in customary law.

Answer 8

A person who intentionally helps others commit a crime is also punishable. An accomplice is punishable because he/she intentionally does something to promote the commission of the crime The Setswana name for such a person is mothusi, and they may be given a heavier punishment than the perpetrator.

Question 9

Explain in depth what an accessory means in customary law.

Answer 9

A person who intentionally helps a criminal to evade liability, for instance, by hiding the criminal, commits an independent crime. In African customary law, the head of the agnatic group is always liable for the conduct of members of his group. In most cases, he may have played no part in this conduct and may not even rendered assistance, yet he has co-liability.