Chapter 19 - Unlawfulness, guilt and punishment as elements of crime

Question 1

Explain in depth what unlawfulness means in customary law.

Answer 1

If an act has a certain forbidden consequence, it does not necessarily mean that the person who performed the act committed a crime, that is, that his or her act was unlawful. There may be factors that exclude the unlawfulness of certain acts. In African customary law, an act is considered unlawful only if it is in conflict with the interests of the community.

Question 2

List the grounds of justification to exclude the unlawfulness of certain acts in customary law.

Answer 2

1. Defense
2. Necessity
3. Self-help
4. Executing orders
5. Impossibility
6. Consent
7. Institutional action
8. Discipline

Question 3

Explain in depth what guilt means in customary law.

Answer 3

We can establish two forms of guilt, namely intent and negligence. Intent is the form of guilt that is required for most African customary law crimes.

A person acts with intent if he/she consciously does something that he/she knows is wrong, the act is intentional, that is, the person is acting in malice.

Negligence implies failing to act as an ordinary man or woman would in similar circumstances

According to African customary law, an intoxicated or drugged condition does not exclude criminal liability. It is also not a mitigating factor if the accused himself/herself is responsible for his/her condition.

Question 4

List the original forms of punishment in African customary law.

Answer 4

1. The death penalty
2. Banishment
3. Confiscation of property
4. Removal of the offender to an appointed area within the communal territory
5. Fines, mostly in the form of stock
   6 Corporal punishment
6. Compulsory labour
7. A warning, after having been found guilty