Crimes Against the State Flashcards
What are the common law crimes against the State?
- Treason
- Perjury
- Contempt of court
What is treason?
A person commits treason if, owing alleginace to the RSA, he unlawfully engages in conduct within or outside RSA with the intention to:
1. Overthrow the government of RSA
2. Coerce the government by violence into action or inaction
3. Violate, threaten or endanger the existence, independence or security of RSA
4. Change the constitutional structure of RSA
What is perjury?
The unlawful and intentional making of a false statement in the course of judicial proceedings by a person who has taken in the oath/affirmation/admonition which he knows or foresees may be false.
What are the elements of treason?
- Overt act of treason
- Allegiance
- State
- Intent
- Unlawfulness
What is the element of ‘overt act of treason’?
Must amount to a physical manifestation of ‘hostile intent’.
What is the element of ‘allegiance’?
Committed by persons who owe allegiance to the State.
What are the factors which create allegiance?
- Citizens
- Domicile
- Residence
What is the element of ‘State’?
Conduct of accused must be directed at entity recognised in international law as a state.
What is hostile intent in terms of S v Banda?
(1) unlawfully impair, violate, threaten or endanger the
existence, independence or security of the State;
(2) unlawfully overthrow the government of the State;
(3) unlawfully change the constitutional structure of the State; or
(4) unlawfully coerce by violence the government of the State
into any action or into refraining from any action.
What is the element of unlawfulness in treason?
Acts directed at the amendment of Constitution, replacement of government or head of state or adoption/abandonment of policies/legislation not unlawful if carried out in manner prescribed by the Constitution.
What are the elements of perjury?
- False statement
- Judicial proceedings
- Oath/affirmation
- Intent
- Unlawfulness
What is the element of ‘false statement’ in perjury?
- Verbal statement under oath/affirmation/admonition
- Written statement contained in an affidavit
- Need not be material.
What is the element of ‘judicial proceedings’?
Must be made in the course of judicial proceedings.
What is the element of ‘oath/affirmation’?
- Oath must be administered by competent official
- Prescribed formalities must be in place.
What is the element of intent for perjury?
- Accused must know, or foresee, the possibility that his statement is false
- Accused must know he is under oath/affirmation/admonition
What is contempt of court?
Unlawfully and intentionally violating the dignity, repute or authority of a judicial body, or interfering in the administration of justice in a matter pending before it.
What are the elements of contempt of court?
- Contempt
- Judicial body
- Intent (negligence sufficient for publishing press commentary on pending case)
- Unlawfulness
What are the two forms of contempt of court?
- In facie curiae
- Ex facie curiae
What is contempt of court in facie curiae?
- Conduct inside court
- In the presence of the presiding officer while the court is in session
- Insult the presiding officer or misbehave in a manner that violates the dignity of the court or the judicial officer.
What is contempt of court ex facie curiae?
- Conduct outside the courtroom
- Not in the presence of the court while the court is in session.
What are the two forms of contempt of court ex facie curiae?
- Acts relating to pending cases
- Acts that do not refer to pending cases
What are forms of acts relating to pending cases?
- Potentially prejudicial publications
- Interfering with a witness or presiding officer
- Failing to appear in court.
What are the forms of acts relating to non-pending cases?
- Scandalising the court
- Disobeying a court order
- Obstructing court officials.
What are potentially prejudicial publications?
Publication of any information or commentary, by written or spoken word, that is so potentially prejudicial on a matter which is sub judice.
What is interfering with a witness or presiding officer?
- Any attempt to intimidate or bribe a party, witness or judicial officer
- Any private communication to a judicial officer intended to influence the outcome.
When does contempt of court become a statutory offence?
When the accused/witness intentionally disobeys a summons or subpoena to appear in court or produce documents in terms of sections 55, 187 and 188 of the CPA and section 5(2) of the MCA.
What is failing to appear in court?
When the accused/witness intentionally disobeys a summons or subpoena to appear in court or produce documents
What is scandalising the court?
A publication (written or verbal) which violates the dignity,
repute or authority of the court by unfairly and improperly
criticising the court.
How does scandalising the court usually arise?
- Scurrilously abusing a judge or the judiciary
- Imputing bias, partiality or improper motives to a judge or the courts in the administration of justice
What is disobeying a court order?
When a party to a civil case against whom the court has given an order
and intentionally refuses to comply with it.
What is obstructing court officials?
Intentionally interfering with or hindering court officials in the
execution of their duties including sheriffs or messengers of the court.
