Incomplete Crimes

Question 1

Incomplete Crimes

What are incomplete crimes?

Answer 1

→ these are independent crimes that involve conspiracy and incitement but are NOT complete
- Incomplete crimes are anticipatory in nature
- Incitement → then conspiracy → then attempt
- Incomplete crimes are formally defined crimes where we punish the act (not the
consequence)
- Must occur with reference to a specific crime. An attempt to do something cannot happen in the abstract-the attempt must occur with reference to a specific crime

Question 2

Attempt

What is an uncompleted attempt?

Answer 2

• Arises when X does everything from his side to commit the crime but, for some reason(due to lack of skill, lack of foreseeability, or an unforeseen external event), the crime is not completed

Question 3

Attempt

What did the Laurence case state regarding a completed attempt?

Answer 3

o At this point in time, there was the ‘Suppression of Communism Act’ which
prohibited the publication of any interviews etc. with any person who was a
communist. Laurence worked for a magazine company.
-He decided to publish an interview he conducted with a communist and then decided to send this letter to the UK.
-However, the letter was intercepted by the police and never reached its
destination. Laurence had done everything in his power for the crime to be completed, but an unforeseen occurrence stopped it from occurring.

-Laurence was then charged ito the Act and found guilty (guilty of attempt) by court.

Question 4

Attempt

What is an incomplete/interrupted attempt?

Answer 4

• Incomplete/interrupted attempt is when X wants to commit a crime, but it is impossible ito the object or the means used
• Mere thoughts are not punishable.The person must perform some act ito the puts his thoughts into motion
• was X’s act merely an act of preparation or does it amount to execution of the crime?

Question 5

Attempt

What did the Schoombie case state regarding an incomplete/interrupted attempt?

Answer 5

o S wanted to burn down a retail shop and brought with him a can of petrol and some matches. S poured the petrol around the shop. Right before he was about to light the match, the police arrived on the scene. S was charged with attempted arson.
o The court had to assess whether S’s act (of pouring petrol and attempting to light a match) was merely an act of preparation or if he had commenced execution of the
crime
o The court distinguished between a completed attempt and an incomplete attempt
o The court held that ‘attempt’ is established once the court is satisfied that the accused would have committed the crime had he not been interrupted at that point in time
-o S was found guilty bc his acts weren’t merely in preparation. He had already poured out the petrol around the building and was about to light the match.

Question 6

Attempt

What did the Nango case state regarding an interrupted attempt?

Answer 6

o Facts: a gang launched an attack on a group of policemen and N was part of this
gang. At some point N had an axe in his hand and he was about to attack one
policeman lying on the ground.

-At this moment, a police fired a shot at N and interrupted him in his attempt to use the axe. N was then charged with attempted murder and was found guilty.
o The court held that his act had already commenced in execution of the crime – it was not merely preparation of the crime
o He was then found guilty of attempted murder

Question 7

Attempt

What is an impossible attempt?

Answer 7

• X tries to commit the crime but the object or means used makes it impossible to complete the crime

Question 8

Attempt

What did the Davies case state regarding an impossible attempt?

Answer 8

o Facts: during those years the Prohibition of Abortion Act was still in place, and D
attempted to abort a foetus. But the foetus was already dead when he attemptedthe abortion. The question arose to whether he is guilty of attempted abortion eventhough the foetus was dead

o The court found him guilty of attempted abortion. Why? bc with impossible attempt we apply a subjective test where we go and look at what went on in X’s state of mind at the time of the crime

Question 9

Attempt

What are the 2 exceptions to impossible attempt?

Answer 9

Exception 1: where the legislature specifically excludes something from being an impossible attempt
▪ Exception 2: where X attempts to commit a crime that no longer exists

Question 10

Attempt

What are the 2 tests to be applied when assessing attempt?

Answer 10

• Objective test → applied to complete and incomplete attempts. We look at the situation from the outside
• Subjective test → applied to impossible attempts. We go into X’s mind to see if he is guilty of attempt

Question 11

Attempt

What did the Du Plessis case state regarding attempt?

Answer 11

o The court confirmed that we must look at whether X’s act amounts to preparation of crime or execution of the crime. X must have had the intention to commit that
specific crime.

Question 12

Attempt

What did the Robinson case state regarding attempt?

Answer 12

o The deceased had financial issues. He told his wife he was going to hire someone toshoot him. The person didn’t want to shoot him. However, the wife was found guilty of attempted murder

Question 13

Attempt

What did the Ntanzi case state regarding the role of intent when it comes to commiting a crime?

Answer 13

o The accused took a bus ride and the complainant approached him and pushed a burning cigarette towards his head. The accused took out his gun and fired 3 shots at the complainant. One shot injured the complainant.
o The court had to assess whether the accused was guilty of attempted murder.
o In this case, intention had not been established → there is no such crime as negligent attempt → thus he was found not guilty

Question 14

Attempt

What did the Phiri case state regarding the role of attempt when it comes to commiting a crime?

Answer 14

-the accused was HIV positive. He had sexual intercourse with the complaint without disclosing his HIV status beforehand.
-She later found out and was upset. He was charged with attempted murder and found guilty based on intention in the form of dolus eventualis
-o To be guilty of attempted murder, X must have had intention. X will be guilty on the basis of dolus eventualis (X foresees the possibility that Y can contract HIV and reconciles himself with this possibility)

Question 15

Attempt

What did the Nyalungu case state regarding the role of intent when it comes to commiting a crime?

Answer 15

→ the accused was HIV positive. He raped the complainant. He was charged with attempted murder and found guilty based on intention in form of dolus eventualis

Question 16

Incitement

How does S18 of the Riotous Assemblies Act define incitement?

Answer 16

: any person who incites, instigates, or procures another person to commit any crime, whether it is a common law offence or a statutory offence,shall be guilty of an offence and liable on conviction of the punishment to which a person actually convicted of committing the crime would be liable

Question 17

Incitement

How does incitement operate as a formally defined crime?

Answer 17

incitement is a formally defined crime → We punish the act of incitement and not the consequence.
-o X’s liability is not dependant on whether he actually managed to influence the person that they tried to incite or whether the person actually agreed to commit the crime
-focus solely on the mind of the inciter

Question 18

Incitement

How can a person be charged with the crime of incitement?

Answer 18

• A person can only be charged with incitement if the crime is NOT complete. —This is why incitement is a type of incomplete offence
• Incitement can also be done through social media
• Incitement can be committed explicitly (words or deeds) or impliedly/tacitly (conduct) →
  But there must at least be a description of the crime to be committed + the person/object in terms of which the crime is to be committed
• Incitement can ONLY be committed intentionally -o possible to attempt to incite another person

Question 19

Incitement

What did the court in the Nkosiyana case state regarding incitement?

Answer 19

→ court confirmed that we focus on the mind of the inciter and NOT the mind of the incitee
- Inciter = the one who reaches and seeks to influence the mind of another to the commission of a crime
- The test for incitement rests on the conduct + intention of the inciter
- The conduct and intention of the incitee is NOT important

Question 20

Incitement

What elements of incitement were established in the Nkosiyana case?

Answer 20

1.Element of persuasion is not required
2.The means used to incite the incitee are
immaterial
3.If the incitement does not come to the
knowledge of the incitee, then the inciter can only be charged with attempt (attempted incitement)
4.The inciter must consciously seek to influence the incitee to commit the crime (element of intention)

Question 21

Incitement

What did the Milne en Erleigh case state regarding incitement?

Answer 21

• The 2 accuseds were charged with incitement
• The state got civilians to act as state witnesses for renumeration
• M + E got another person (Mr P) to do false entries in the accounting books. The person they got to do false entries asked M + E whether what they were doing was illegal. M + E confirmed that it was not illegal.
• Legal question: can incitement be committed by means of an answer to a question?
• Court held: yes it can be, BUT in this case it was held that bc Mr P was unaware of the fact he was being incited, incitement was NOT committed
• M + E were found to be not guilty

Question 22

Incitement

What did the Dreyer case state regarding the role of incitement in commiting a crime?

Answer 22

• The court confirmed that incitement can take place by means of an answer to a question
  o e.g.) Someone asks you to do something → you ask them if it is illegal → they answer you and say yes → you choose to continue. This constitutes incitement by
  means of an answer to a question
• In other words, X may commit incitement through his inciting statements that are made in response to questions first asked by Y

Question 23

Incitement

What did the Dick case state regarding whether incitement can be commited conditionally?

Answer 23

• Facts: the accused and his girlfriend had been separated and he wanted them to reunite. He went to a witchdoctor to get a herbal mix and a poison. He said that if the herbal mix does not succeed in bringing the girlfriend back, the witch doctor should kill the girlfriend with the poison.
• Legal question: whether incitement can be committed conditionally (e.g. if she does not return to me then you must kill her with poison)
• Court held: incitement can be committed conditionally
• The accused was thus found guilty

Question 23

Conspiracy

What is conspiracy?

Answer 23

• Any person who conspires with another person to aid or procure the commission of an offence, whether it is a common law or statutory offence, shall be guilty of an offence or liable of conviction of the punishment to which a person actually convicted of the offence would be liable

Question 24

Conspiracy

When is the crime of conspiracy committed?

Answer 24

As soon as there is a meeting of the minds of the persons → the crime of conspiracy is complete
- Why must conspiracy be punished? → bc the agreement of a number of people to commit a crime already creates a danger to society
- The prosecutor has discretion to prosecute X
- There must be agreement between at least 2 or more people. X cannot conspire with himself
- Conspiracy can be express or tacit
- It is not necessary that the identity of each conspirator be known by the other conspirator
→ they must just be aware of the existence of each other
- It is NOT a requirement that the conspirators agree on the exact and precise way in which the crime will be executed

Question 25

Conspiracy

How is conspiracy committed intentionally?

Answer 25

• There is no such thing as negligent conspiracy. Conspiracy can ONLY be committed intentionally. The intention requirement is 2 fold:
  o X must have the intention to conspire
  o X must have the intention to commit a crime
• Conspiracy is criminalised ito sec 18(2)(a) of the Riotous Assemblies Act
• Usually conspiracy is only utilized as a charge against X if the crime he conspired about is not completed
• It is easier to prove conspiracy to murder than murder itself
• You cannot commit conspiracy ito a police trap → this could be incitement to commit crime but not conspiracy

Question 26

Conspiracy

What are the characteristics of conspiracy as held in the Sibuyi case?

Answer 26

• Facts: the accused persons were charged with theft bc they tried to steal metal bearings off train tracks+ were charged conspiracy to commit theft.
• They were found guilty in the trial court. They appealed against these convictions.
• The court on appeal had to assess ‘conspiracy to theft’ conviction. Looking back at what conspiracy entails, the court held> that conspiracy is complete the moment that there is some agreement or meeting of minds between the parties concerned. However, the parties don’t have to agree on the exact dynamics of the crime.
• The trial court had incorrectly convicted them of attempted theft. They should have been convicted of conspiracy

Question 27

Conspiracy

What legal principles were established in the Ndluli case regarding conspiracy?

Answer 27

• Legal question: Can x withdraw from a conspiracy after an agreement has been reached? At what point in time can he withdraw?
  o Dissociation from a crime consists of some form of conduct by a collaborator to an offence with the intention of discontinuing his collaboration. The more advanced an
  accused’s participation in the commission of a crime, the more pertinent and pronounced his conduct will have to be to convince the court that he wished to discontinue his participation.

o Withdrawal is effective upon timely and unequivocal notification to the coconspirators of the decision to abandon the common unlawful purpose, but where there has been participation in a more substantial manner, something further than communication is necessary to indicate intention to dissociate