Sources of Criminal Law

Question 1

Common Law and the Constitution.

Answer 1

• criminal law is primarily based off of common law principles.
• our legal system is uncodified and therefore so is our criminal law.
• we do not have a criminal code unlike Germany and Canada, instead crimes like murder, treason, incest etc. form part of Roman Dutch Law tradition and are not in statues.
• Common law definitions of crimes mainly come from case law and is developed constantly in the present context. S39(2) places a duty on courts to develop common law.

Question 2

Legislation

Answer 2

when the legislator creates new crimes, new statutory offences are also created.

Question 3

Statutory definition of Rape

Answer 3

• Before the Sexual Offences Act, various sexual offences were regulated by common law with discriminatory characteristics, such as only females could be raped and only vaginal penetration can be classified as rape.
• Now, the definition includes women and men and considers any form of unwanted penetration as rape.
• Sexual Offences Act s3 provides that: Any person who unlawfully and intentionally commits an act of sexual penetration with a complainant, without consent is guilty of the offence of rape. which include: the genital organs of one person, any other part of the body of one person or part of an animal, the genital organs of an animal, into or beyond the anus, mouth or organs of another person.