Legality Flashcards
What is determinism?
A person’s actions are predetermined by genetic/biological make-up. A person has no control over whether they commit a crime
what is indeterminism?
A person has free will and has the ability to control their impulses. SA criminal law is based on indeterminism
what is the definition of legality?
An accused cannot be found guilty of a crime unless the type of conduct they are charged with:
1.Has been recognised by the law as a crime
2. In clear terms
3.Before the conduct took place
4.Without the court having to stretch the meaning of the words and concepts
what are the four principles of legality?
These Principles also apply during sentencing
- IUS ACCEPTUM-accused can only be found guilty if conduct was recognised as a crime courts may not create crimes
- IUS PRAEVIUM-accused can only be guilty of a crime if recognised at time of commission
- IUS CERTUM-crimes should not be formulated vaguely
- IUS STRICTUM-definition of crimes should be interpreted strictly
Legality and the Constitution
what is the relationship between legality and the constitution?
S35(3)(L) + S35(3)(N) of the Constitution
-Section 35 (3) (L)-right not to be convicted for act or omission which was not offence under either National or International law at the time of commission
-Section 35(3)(N) least severe punishment if punishment for offence has been changed
between time of offence and time of sentencing
what happens if a new crime is created during an ongoing case?
There is no retrospective applicaton for a crime and it must be a crime at the time of commission of the offence
Norms and Sanctions
what is the difference between a legal norm, a criminal norm and a criminal sanction?
-Legal norm- mere prohibiton
-Criminal norm-criminalising the prohibition by creating the crime
-Criminal sanction-Punishing the crime
Case Law Against Legality- Forlee Case
What are the facts of the Forlee case?
(There was a law that no one was allowed to sell drugs but the legal norm was not criminal> accused was charged ito the law but the statutory clause contained the crime but no punishment)
Case Law Against Legality
How was the Forelee case AGAINST the legality principle?
-Main arg. is that the section is against legality because of the lack of a penalty clause in the statute
=Court held that having regard to nature of offence and interpretation of section = clear that legisl wanted to punish conduct, and section not against legality
Case Law Against Legality
what are the facts of the Masiya case?
Sexual Offences pre 2007
- Man raped girl through anus - CL law definition of rape didn’t include anal penetration
- In interests of women and kids, court held that CL crime of rape should be developed before legislature enacted new broader def of rape
-Accused was charged according to the new definition of rape to include anal penetration
Case Law AGAINST Legality
How was the Masiya case AGAINST legality?
Since legislature = responsible for making + changing law, not desirable for legislature to depend on court rulings to develop law legislature must act proactively so as
to address deficiencies in law to ensure it upholds principle of legality
-Case appealed to CC. CC said that new def cant be applied retrospectively (goes against legality)
- When it comes to court power to extend CL crimes iro statutory provisions - court must consider whether language of legisl is clear or unambiguous
Case law FOR Legality
what are the facts of the von mollendorf case?
-Policeman had an altercation with complainant +PM told comp to make statement to absolve him of all wrongdoing or else PM would have comp arrested and have bail refused
-PM charged with CL extortion (Extortion is where X exerts pressure on another person to obtain spec benefit
Case law FOR Legality
How was the von mollendorf case **FOR **Legality?
On appeal, Comp argued that he couldn’t be found guilty of extortion bc at time he was charged, extortion only applied to patrimonial benefit (money)
-Court held that = not the function of the court to expand on existing CL crime - rather left to legislature,
▪ Thus Comp was acquitted
What is the importance of the Smit case regarding legality?
Established a toll road over Smit’s farm without consultation
-SCA held Correct administartive procedure was not followed which went against the legality principle
Case Law FOR Legality
what are the facts of the Mashumpa case?
Victim was involved with man and fell pregnant with his child. She went to the doctor fro a check-up +on their way out, a man shot her through her tummy.
* Later found that man hired shooter to appear as a robbery in hopes that the shot would kill baby
* Pregnant woman didn’t die but the shots killed the unborn child
* Mshumpa was charged with attempted murder
* Legal Q: Should A be charged with murder of unborn child? Can crime of murder be committed against unborn
