Criminal Law and the Law of Delict Flashcards
What is a delict?
A delict is an unlawful, blameworthy act or omission resulting in damage to another, giving the injured party the right to compensation.
What is a crime?
A crime is unlawful, blameworthy conduct punishable by the state.
Can an act be both a crime and a delict?
Yes, one act may constitute both a crime and a delict. For example, X assaults Y.
Give examples of conduct constituting a delict but not a crime.
Negligent causing of damage and seduction.
Give examples of crimes that are not delicts
High treason, perjury, bigamy, and the unlawful possession of drugs.
What distinguishes a crime from a delict in terms of public and private interests?
A crime is injurious to public interest (state or community interests), whereas a delict is injurious to private or individual interests.
Difference between “Crimes” and “offences”
In South Africa criminally punishable conduct is sometimes
referred to as a “crime” and sometimes as an “offence”. The standard practice of referring to
conduct prohibited by the common law as “crimes”, and conduct prohibited by statute as
“offences”
What are the three main sources of South African criminal law?
Legislation, common law, and case law.
What are the three main sources of South African criminal law?
Legislation, common law, and case law
What are the additional sources of influence on South African criminal law?
English law, German criminal-law theory, and the Bill of Rights in the Constitution.
Why does legislation occupy the first place in the sources of criminal law?
Because an Act creating a crime or determining criminal liability must be applied and receive priority over common law provisions.
Has South Africa codified its substantive criminal law?
No, substantive criminal law in South Africa has not been codified yet.
What is the relationship between common law and case law?
The contents of the common law have largely been set out in reported case law.
How does the Constitution influence criminal law?
All rules of law must be compatible with the Bill of Rights in the Constitution, or they may be declared null and void.
What is the role of courts in developing criminal law?
Courts describe and develop criminal law through judicial precedent, with lower courts bound by higher courts’ interpretations.
What does “common law” refer to in South Africa?
Rules of law not contained in Acts of parliament or other legislation but are still binding, originating from Roman-Dutch law.
What is Roman-Dutch law?
A legal system originating in Rome, received in the Netherlands, and fused with local customary law, forming the basis of South African common law.
Why is the influence of Roman-Dutch writers on criminal law declining in South Africa?
Because courts have garnered wisdom from old sources, and modern needs and problems differ significantly from those of centuries ago.
What is the role of historical research in criminal law?
It is valuable as a starting point for investigation but should not be equated with all legal investigation, which should also look forward.
Did English law replace Roman-Dutch law in South Africa?
A: No, but it exerted a strong influence on South African criminal law during the nineteenth century
What are some examples of new crimes introduced under the influence of English law?
A: Qualified assaults, housebreaking with the intention of committing a crime, receiving stolen property knowing it to be stolen, culpable homicide, and fraud.
What were some deficiencies in common law as influenced by Roman-Dutch writers?
Contradictory expositions, vague descriptions of crimes, and a focus on punishments rather than essential elements of crimes.
What was Act 24 of 1886, also known as the “Native Territories’ Penal Code”?
A: A criminal code for the area formerly known as the Transkei, almost an exact transcription of a criminal code drawn up by Sir James Stephen.
How is the influence of English law especially noticeable in South African criminal law?
A: In the appellation and subdivision of specific crimes, as well as the particular requirements for these crimes.
Are concepts like “unlawfulness”, “grounds of justification”, “criminal capacity” and dolus eventualis found in English law?
A: No, these concepts are not found in English law.
What does German criminal-law theory involve?
A systematic arrangement of legal material and the formulation of general principles to solve individual sets of facts.
What is the purpose of criminal-law theory?
A: To arrange numerous subordinate rules, examples, or cases according to a system of general principles, systematically describing the requirements for criminal liability.
Why is the systematic continental model recommended for South Africa?
A: It is conducive to legal certainty and consistent application of legal rules, providing a coherent system of principles to apply to novel facts.
How does the Bill of Rights influence South African law? A: All rules of law must be compatible with the rights contained in the Bill of Rights, or they may be declared null and void.
How does the Bill of Rights influence South African law? A: All rules of law must be compatible with the rights contained in the Bill of Rights, or they may be declared null and void.
What rights are created by the Bill of Rights?
A: Rights to dignity, life, freedom and security of the person, privacy, religion, freedom of expression, political choice, property, education, language, and a fair trial.
Can the rights in the Bill of Rights be limited?
Yes, they can be limited in terms of law of general application, but only to the extent that the limitation is reasonable and justifiable in an open and democratic society.
