10/08

Necessity and duress

Effects:

Permits a person in order to avoid harm in certain circumstances to commit what

would have been a breach of the law.

Rational for the defense:

Allowing a person who is faced with a choice of two evils in an emergency

situation to choose the lesser of the two evils. Protection of life is the lesser evil.

Necessity will arise when an individual is faced with suffering some evil and
breaks the law in order to avoid evil.

Definition:

A protection of interests which are endangered by a threat of harm which has

commence/imminent and which cant be averted in any other way provided that
the person acting out of necessity is not legally compelled to endure the danger
and interest protected is not out of proportion to the one being protected.

Two agencies:

Human/nature
- human:
Compulsion/duress. A says to B that B must break C’s arm or A will kill him
- non-human:
Necessity, ship is sinking so one throws all the cargo off to save lives.

Distinguishing necessity and private defense:

- similarities:
both involve weighing up of harm, protect a legally recognized interest,
defensive act must not be disproportionate to harm and threatened interest,
both arcum the def act must be nec and requirement of imminence.

- differences:
1) Private defense is between choosing between evil to yourself or to your
attacker.
Necessity is the choice between yourself and an innocent person, should the
innocent party suffer? Courts are reluctant because you should suffer.

* Law changed: a court recognizes the accused as a reasonable person so they

will avert harm to themselves.

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 2) Necessity does not require an attack; it results in harm to an innocent party.

3) Private defense must be in relation to an unlawful human attack, necessity

doesn’t matter if in the form of compulsion (human – non human agency) you
can’t act in private defense against an animal but you can if acting out of
necessity.

4) Private defense requires an attack and necessity requires a threat which is

imminent or has commenced.

5) Private defense you know that it negate unlawfulness and Mens rea when
arguing putative defense. Necessity excludes unlawfulness and fault, Mens rea.

* S v Bailey:
Two prisoners charged with killing fellow prisoner. 2nd accused said that he
acted out of necessity under compulsion from 1st accused. Trial court said that
the reasonable person would not have yielded to this compulsion but accepted
that the 2nd accused genuinely believed his life was in danger, found the 2nd
accused guilty of culpable homicide.

Appeal court held:

Necessity may in certain circumstances exclude fault if the individual genuinely
believes that they are acting out of necessity, they will then lack Mens rea and
if belief is bona fide and genuine as well as reasonable then they lack culpa.

Q: whether a person is rightly guilty for a crime where the requirement is intention
if he is charged with a crime.
A: unlawfully committed crime
Acted under compulsion
Compulsion not strong enough for reasonable person to act under it
No other grounds to exclude fault

Real foundation of necessity as a defense is that it can in certain circumstances

be a defense excluding unlawfulness or fault.

Categories of necessity:

1) either have A in order to avoid harm causes harm to another person or

property
2) A doesn’t harm or infringe on another’s rights but contravenes a rule of law

* S v Pretorius:

A charged with speeding, was doing this because A’s 2yr old child had swolled
9 disprin and A was trying to get her to a hospital.

3) relative and absolute compulsion:

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 Absolute – X commits an involuntary act, Y threatens to kill X if X doesn’t kill Z,
X happens to be stronger than Y, the defense will then not be necessity but
instead voluntaries.
Relative- X does technically commit a voluntary act but doesn’t have a choice.

Requirements:

1) danger to a legally protected right – which a person is not obliged to endure

2) threat must have commenced or be imminent
3) situation must not have been brought about by fault of the accused
4) your act of necessity must have been necessary to avert danger
5) means must be reasonable in the circumstances

1) Danger:
The threat of death/ serious bodily injury will qualify for that so to will lesser bodily
injury or property. Also one can use the defense to avoid harm of a 3rd party [S v
Pretorius] mere monetary loss isn’t recognized by our courts as a legally
recognized interest [R v Canestra], threaten harm must be of a physical nature.

* R v Canestra:

C was a fisherman using large nets to catch fish; some of the fish caught would be
undersized and therefore prohibited. Caught 60000 fish, 100 were prohibited.
- Burchell:
Only 2/3 out of specification is it fair to deny C his livelihood because the net can’t
differentiate between the sizes.
-can’t use the defense because to use necessity for him to catch fish in claim of
his financial position to catch fish.
-economic necessity will not be allowed as a legally recognized interest.

* S v Adams:

Notorious group areas act, separation of white and black areas. Defendant and his
wife, who was pregnant and coloured, moved into a white area and were forced to
do so because out of necessity it was cheaper than the demarcated area.
- this is economic necessity and not recognized as a defense
- Burchell:
Come down to the test of reasonable and should come to did irrespective of
interest was action reasonable response.

Not legally obliged to endure:

Even the fire brigade, they can’t avert danger inherent in the exercise of their
duties [R v Kibi] person can’t rely on necessity if what appears to be a threat but
is actually a lawful act, police arrest [R v Kibi].

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2) Threat:

Similar to private defense but here one looks at the threat, any action you take in
response to a threat must cease immediately after the threat has ended.
Justifiability ends when the threat ends. Defense will not be available if the threat
is only going to happen in the future.

* R v Kibi:

General rule, threat imminent or already occurred and answered by probability of

it being put into effect. Court recognized a continuing threat to justify imminence.
K arrested a person who lied in testimony because said police forced/tortured him
into giving the statement, was out of fear of more tortured so he lied. Not alleged
any further assault as case continued.
- Without explicit on-going threat the court will not be convinced that
necessity is a defense.

* S v Mandela:

Accused arrested for murder of acquaintance and argued compulsion, said he was
told that he would be killed if he didn’t do it. Court said threat existed but couldn’t
locate the element of imminence and were therefore not convinced that accused
couldn’t find another solution… if you are being compelled and have the chance,
go to the police.

3) Not caused by accused:

Argued that if interpreted strictly then no (child and pills) proposed that accused
should only be excepted from necessity by their act if the act was a crime.

Example:
X sets fire to house and now evacuate building? X finds that she will find herself in
an emergency situation and the only way out will be to harm or infringe someone
else’s rights, she therefore breaks the law [S v Bradbury].

* S v Bradbury:

Members of a gang, feared a reprisal should he not participate in the planning of a

murder. Via- common purpose sentenced with the death penalty.
- appeal:
As general proposition a man who voluntary and deliberately becomes a
member of a gang with knowledge of disciplinary code, can’t rely on
compulsion as a defense.

* R v Mahomed:

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M was accused with abduction of a young girl. Police wanted to serve him with a
subpoena/ arrest warrant and served them with the victim’s family. The accused
knew that one family member had a revolver so did not open the door, and then
the accused was charged with resisting police.
-argued necessity because he didn’t want to be shot.
The accused can rely on this defense. Bradbury showed it was his own fault
because voluntary entered into the gang, here M it was not his fault because
innocent until proven guilty because he was charged and not sentenced, the chain
of event were not directly his fault. Decision must always be made accordingly to
PP; if negligence has played a part it would not be fair.

4) Must be necessary:

Up to accused to prove that harm would most likely have occurred had he not
acted. [R v Mahomed]. Here there is a stronger obligation to retreat [Bradbury]
must be judged objectively, reasonable person would have resisted/retreated from
the threat.

5) Means reasonable:

Proportionality requires a protected interest; the interest should be of a greater

value than the one that’s being infringed. Everything ranks lower than life.
Damage and loss to proportionality will rank below bodily integrity if injury is
equal to the harm avoided.
- past:
Obligations on a person to suffer harm themselves. There are instances when
you are obliged to do so, police and soldiers.

14/08

Necessity

Requirements for necessity:

1. legally protected right
2. threat
3. must not be the fault of the accused
4. necessary to avert danger
5. means must be reasonable

*bailey:
Must believe you are acting in necessity to negate mens rea. Determing a lesser
evil when killing someone out of necessity.

English law (south Africa used to follow eng law till S v Goliath)

* R v Dudley and stephens:

Ship wrecked soldiers murdered a cabin boy on the verge of dying so that they
could eat him and survive. Argued necessity because they needed to eat and he

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was dying. They were charged with murder. The court rejected the defense of
necessity for murder.
- held:
broad proposition that man may kill an innocent person to save their life is not the
law and cant be the law.

* R v Howe

*R v Werner ( south African case that followed the English law)

German prisoners of war murdered another prisoner on the instructions of a
german officer. They pleaded necessity because the feared reprisals back at home
and their families had been threatened.
- held:
killing of an innocent person out of necessity will never negate unlawfulness.

The fear that existed in the minds of the accused is not justifiable even if it was
justifiable to kill an innocent person out of necessity.

* S v Goliath (leading case in south African law)

Authority that necessity can serve as a defense for murder.may be justified to kill
an innocent human to save your own life.

X and Y were walking together when they came upon the deceased, Y asked D for
a smoke and money. D said he had no money, Y then stabbed him and ordered X
to tie him up. X said no but Y then threatened his life and so X submitted to Y’s
orders and Y continued to stab D. both X and Y were charged with murder. On
appeal X was charged as an accomplice.

- A.D held:
For the first time the court recognized that compulsion can be a justification for
the murder of an innocent person.

- rumph:
accepted that the law doesn’t wish to uphold the highest ethical standards. A
mortal human being is inclined to choose his own life over another, requirement
of reasonableness looks to the reasonable person, the mortal man is the
reasonable person and therefore the reasonable person will choose his own life. In
certain circumstances the reasonable person will kill to save his own life.

Necessity can be a defense for murder. The acquittal will only be justified if a
reasonable person in the position of the accused would’ve killed to save his own
life in the same circumstances. Where A believed he was under compulsion but
actually wasn’t.

All this is premis on the free will, if people choose to act wrongfully its fair to
punish them, in circumstances of compulsion a person doesn’t have that choice.

- wessels

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(didn’t agree with the ruling)
A defense based on necessity and compulsion is better viewed as a ground
excluding fault rather than excluding unlawfulness. Necessity in such
circumstances is an excuse rather than justification. Murder cant be lawful.

Excuse v justification:

- excuse:
personal circumstances of an accused are looked at and then decided even
though that act is unlawful and wrong because of your personal circumstances
show an excuse/ reason why he cant be guilty.

- justification:
lawful, legally right.

Justified that you killed, argument is that murder can never be justified.

The problem with goliath is that a 3rd party may need to repel an attrck of
necessity by using self defense.
Example:
A compels B to rape C, if B doesn’t A will rape B’s mum. C might need top repel
this attack by acting In self defense. If the act of necessity is lawful then acting in
self defense will be unlawful because to act in self defense the attack must be
unlawful.

Necessity should be seen as an excuse and not as a justified act. If justified then a
3rd party will never be able to repel an act of necessity.

The law still allows necessity to be justified when killing an innocent person.

Partial excuse:
Acted out of necessity, the reasonable person would’ve have acted in such a way.
One can be found guilty of culpable homicide.
* been done away with.

21st august
Consent

Volenti non fit injuria – injury not done to those who consent.

This does not mean that giving consent one is making an act lawful.

Exceptions:

1. Absence of consent forms part of the definitional element of the crime may
be a defense. Such as rape.

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 2. Some crimes, consent will render the conduct lawful; this depends on the
boni mores/ public policy of the society.
(Difficult to pin point the dividing line of the kind of harm a victim may or may not
consent to)

Requirements:
1. consent in circumstances must be recognized by the law as a defense
2. must be real consent
3. consent must be given by someone who is capable of giving consent
4. consenting person must be aware of the true and material facts regarding
what they are consenting to
5. consent must be given before the otherwise unlawful act is committed
6. must be given by the complainant themselves

-when will criminal law accept consent as a defense:

Boni mores and public policy, consent will be meaningless where it is the interest
of the state or society that is harmed rather than the individual. Such as treason.

- In the cases of rape, consent will be a defense because it forms part of the
definitional elements of the crime.

- In the cases of property, the general rule is that consent will be recognized as a
defense.

Murder:
The law does not permit a person to consent to being murdered.

* R v Peverett [authority]
X entered into a suicide pact with Y, they both got into a car and then proceeded
to gas themselves, and they were both found and barely escaped death. X was
found guilty of attempted murder of Y because he was the owner of the car and
put the pipe form the exhaust into the car.

Medical treatment:
A person has the right to refuse medical treatment even if it has the effect of
hastening death. If a patient agrees for a Dr to administer pain relieving drugs
which may kill or hasten the death, this will be considered as consent. Consent to
medical procedures, the act of a person who undertakes that procedure will not be
criminal or illegal.

* Stoffelburg v Elliot [authority]

Voluntary euthanasia:
In South Africa euthanasia will only be legal in two circumstances. The first when
your brain is dead and the rest of your body is being kept alive and a living will.
This is the voluntary euthanasia society, they distribute living wills, this states
that should one be in the position of no prospects of recovering that they should
be allowed to die.

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* Clarke v Hurst:
Wife was the curator of her husbands estate, her husband was in a vegetative
state. She asked the court if she could disconnect his artificial nutrients. The court
held that this would be lawful looking at the convictions of the legal community.
Each case must be looked at carefully.

Assault and bodily injury:

Consent to assault is most commonly seen as a ground of justification when

involving sports injuries. Rugby, soccer etc. if the sport isn’t lawful such as cage
fighting then the fact that you consented doesn’t matter. Secondly aggression for
religious, customary, superstitious purposes. Consent will legalize the assault for
these purposes provided that the injuries are minor. Unless that practice seriously
offends public policy, the legal convictions of the community and the boni mores.

* R v Mjikelana:
A rubbed powder on Y’s private parts and this caused her pain. Y’s consent
relieved A from indecent assault.

* S v Sikunyana:
A burnt Y’s head with coals in order to exorcise an evil spirit. The court held that
highly dangerous practices, superstitiously designed to get rid of evil spirits can’t
be rendered lawful by the consent of the other person.

Sexual aggressions (sado-machinsim)

Academics say that this shouldn’t be free for consent. If you say its lawful then
who’s to say at a later stage that consent will be required every time. It starts off
as consensual but there after the sadistic person may carry out the act.

* Brown

Consent must be real:

Consent can be implied or express is submission a real or valid consent. Where
there is no forceful resistance (submission) will be considered consent. Accepted
that in most circumstances there is an absence of resistance because of self
preservation etc. no struggle does not indicate that the act was consensual. Look
at the authority of the consent, was it obtained by fraud, compulsion and if so it
won’t be considered consent.

1. fraud by active misrepresentation

2. intentional non- disclosure

* R v Williams:
A man offered to perform a procedure on a woman to improve her singing voice,
she consented. The man actively misrepresented himself; the procedure was

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actually him sleeping with the woman. The erro in negotio, made by the victim will
negate consent. Fraud and error must be looked at together.

Mistake:
When one acts mistakenly but in good faith that they believe that they can give
consent, generally the consent will be lawful.

28th august

Degrees of participation in a crime:

Persons involved in a crime are divided into two categories before the
completion and after the completion. Further divided into participants and
accomplices.

Perps can be involved in the crime either by imputation or by personal means.

* by imputation: conduct of the perp is imputed to another through two ways, by

common purpose or by agency.

Quifacit doctrine/ principle:

He who does an act through another does the act himself. The Q.F principle
applies to agency.

* common purpose:
Determined by prior conduct, an act or agreement that shows association to the
crime.

Perpetrators:
Person can be a perp through 3 scenarios
1. you personally satisify the definitional elements of the crime
2. by imputation, you don’t fufill the definitional elements but the conduct of
another is imputed onto you through an agreement/ common purpose/ act
of association.
3. through agency, apply the Q.F principle. The Q.F principle will not apply to
rape or any crimes of a sexual nature.

Defintional elements of a crime:

The fact that your helping someone to satisfy the crime will not matter if you
satisfy all the defintional elements of the crime.

* S v W illiams:
A killed C while B held C down. A was found to be the perp and B the accomplice.

Critisim B should be found guilty as a perp on general principle that B satisfied

all the definitional elements of the crime of murder. The criticism is that if B held C
down while he was being mauled by a lion, there would be no perp in the crime
because the lion cant be held liable and following Williams B would not be a perp,

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without a perp B would also not be an accomplice because you need a perp to
have accomplice liability.

Logical conclusion:
Its impossible to have accomplice liability if there isn’t a perp, murder or culpable
homiced where ever there isn’t the necessary causal nexis between participants
unlawful conduct and the victims death, even when the participants have acted
with the required mens rea.

1. not the necessary causal nexis

2. has required mens rea
3. satisifies the definitional elements

Whitening:
The court in S v Williams first asked if there was an accomplice, the court must
first find if the person was a perp and if not then ask if he is then an accomplice.
When establishing criminal liability one must first see if the person can satisfy one
of the three scenarios, if not then you look to see if that person is an accomplice.

Agency and the Quifacit priniciple:

The principle of instrumentally. Making someone a perp who doesn’t satisfy the
definitional elements of the crime. The example of theft, if some one commissions
you to steal and you do it, even though you don’t keep the property you will be a
perp.

Accomplices/ accessories:
Doesn’t satisfy the definitional elements of the crime, doesn’t quailify as a perp,
the person has none the less furthered the unlawfulness and intentionally
furthered the commission of the crime. A person who stands as a look out will be
an accomplice.

Accomplice liability:
Defined an accomplice as one who associates himself with the commission of the
crime, not active association as with common purpose. Associates himself by
knowingly affording the perp with information, means etc to further the crime. In
order to hold someone liable as an accomplice you need to establish the mens rea
element in their personal capacity, conduct that they have committed in their own
tight that connects them to the crime, something other than what was being
criminalized.

• there must be a causal connection between the accomplices assistance and

the commission of the crime.

Accomplice is laible to the act or omission on the grounds that his own act to
further the commission of the crime and his own fault, meaning intention that the
victim must be killed, coupled with the actus reus of the perp.

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Further/ assist in the commission of a crime:
• facilitating
• encouraging
• giving of advice

can a person be an accomplice in relations to crimes that he couldn’t commit by

being a perp?

*R v M:
Woman was held liable as an accomplice to the statutory offence of having sex
with a girl under the age of 16, even though she couldn’t be found guilty as a
perp.

* R v Jackelson:
Statute made it a crime for a coloured person to be in possession of alcohol. The
offence did not apply to Europeans. By giving a coloured person alcohol you can
be found guilty as an accomplice.

Nature of accomplice liability:

Somebody else must have committed a crime and be liable as the perp in order
for there to be an accomplice. Stems from his own act and mens rea but there
must be something else by some one else in addition to this.

Q: must there be an actual conviction of the perp in order for there to be an

accomplice.

A: no, there only needs to be a perp not an actually conviction.

* S v Parry:
X was charged with murdering Z’s wife with the help of Z. at trial Z was found to
be of unstable mental capacity and therefore lacked capacity. There was therefore
no perp. It was argued on behalf of X that if there was no perp that X could not be
an accomplice. The court rejected this and X was convicted of murder on the basis
of his own act and his mens rea.

* S v Williams:
there Can be no accomplice liability without a perp.
• a conviction of the perp is not necessary, the non conviction of the perp will
have no bearing on the accomplice liability.

Members of a gang were riding on a train, 2 of the accused killed the deceased,
the other two involved in the crime only after the commencement. The 1st acused
held the victim down by his neck and the 2nd accused hit him over the head with a
broken bottle. The other 2 acused dragged the body away. The court couldn’t find
common purpose, the accused who perpetratored the crime and the other two
accused made no prior agreement about the killing and the dragging away of the
body. The court then had to look for accomplice liability.

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Elements of accomplice liability:
1. unlawful conduct
2. prove liability of the perpetrator
3. not only a positive act, omission can also further the commission of a crime
* R v Shikuri

Omission cant attract liability if :

• mere failure to attract liability
• failure to report a crime
• passive by standers to a crime
• approval of a crime

29 September

Impossible attempt:

* R v Davies:
Can be found guilty of an impossible attempt. The fact that the accused's criminal
purpose can’t be performed should have nothing to do with their liability. The
attempt must go far enough in order for them to be guilty.

Qualification to the rule:

The qualification to the rule relating to putative crimes, if you think that you are
committing a criminal act but the act is in fact not criminal then you haven’t
committed a crime.

* S v Palmos:
X received goods thinking that they were stolen. X was then found guilty of
attempted theft.

This case was ruled incorrectly.

X knew that to receive stolen goods was a crime, the mistake only related to
those particular goods.

Theft:

Common law crime. Definition for theft is:

- The unlawful taking (contrectatio) with intent to steal a thing that is capable
of being taken/stolen.

Elements:
- taking
- unlawful
- intention
- property capable of being taken

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Taking/contrectatio:

Roman law notation. It involves the touching/handling/dealing with the thing. The
true meaning is an assumption of control which the law regards as sufficient. This
usually involves the actual removal of property from the control of the owner.

* R v Moloi:
Suggests that you don’t have to remove the article from the owner’s control.

Even though the above case suggests that removal inst necessary the mere
touching of an object/thing is not enough, the common cause must be the
assumption of control.

Ex:
X puts his hand into Y’s pocket with the intention of stealing Y’s wallet.
- It will be attempted theft up and until X gets hold of the wallet, he has then
affected assumption of control.

This was the case of * R v Tarusika.

- It is sufficient to have assumption of control without taking control away
from the owner.

*R v Carelse & Kay:

A worked in a garage, he planned with B to steal petrol. The plan was that A would
fill a tin with petrol and would then hide that tin amongst empty tins. The owner
was aware of the plan and swapped the fill tin of petrol with one fill of water. B
collects the tin fill of water.
- A and B were found guilty because that had effective assumption of control.

* R v Mapiza:
Employee was acting with intention of stealing cigarettes. He removed them and
hid them under the stairs.
- This was sufficient to amount to theft.

Self-service in shops:

A shop lifter will be considered to have effected assumption of control when he

grips the object. It is difficult to prove Mens rea.

*S v Dhlamini:
A was in a shop. He took a shirt and hid it under his jacket, securing it with his
arm. He was caught by security before he reached the till. It was found that he
had no money on him and was therefore proved beyond a reasonable doubt that
he intended to steal.
- He had affected contrectatio and was convicted of theft. When you take
something with intention to steal it you satisfy the contrectatio.

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The accused can be found guilty of having sufficient contrectatio even when they
have acquired the thing lawfully.

Ex:

X buys stolen goods but doesn’t suspect that they are stolen, X’s state of mind
then changes and he is aware that the goods are stolen but he keeps the
property, X will then be considered to have committed theft.

* Nhleko:
Only an obiter – act of appropriation consists of an act that where 1) the lawful
owner is deprived of his possession and 2) the thief himself exercises the rights of
an owner over the property. These two elements must be satisfied before there
can be a theft.
*courts don’t follow this assumption. Courts will find that the assumption of
control will suffice even when the owner isn’t deprived of their property.

*S v Tau [new idea]:

A mere assumption of control is not sufficient for theft, further required that the
owner is excluded from their property. T assumed control over raw gold from the
mine that he worked in. there was very tight security in the mine. The court held
that T would never have succeeded in stealing the gold and held that no theft had
been committed because he had never taken control away from the mine.

**NB: there is no set path to follow, you can take any approach that you feel you
can argue, just make sure that you have the appropriate case law to back your
argument up. Tau is the easiest route to follow.

Money and funds:

What amounts to an assumption of control when dealing with cheques etc when
the money is never physically handled.

* S v Graham:
A’s company was in financial debt. A was given a cheque to settle a debt, when A
checked he saw that the debt had already been paid but cashed the cheque
anyway with the intention that he would pay it back when he had the money or
someone noticed.
- look at the economic effect of the act and not the physical handling. A was found
guilty of theft.

05 October

Theft cont…

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Theft is a continuing crime, it doesn’t stop after the initial contrectatio is affected.
Appropriate – doesn’t have to remov the property, only need to assume some kind
of control.

* tau – physical control.

Two consequences:

The procedural consequences:

This expands the jurisdiction of the courts, even though the taking happened in
cape town a person can be tried in any city or town that the goes through with the
stolen goods. Even though the original contrectatio took place outside the courts
jurisdiction the continiuing to assume control over the article and deprieve the
owner of his rights.

* R v Judelman
* R v Vollander Jacobs

In relation to substantive law, degrees of participation. When an accused commits

a crime and B there after assists A, B will be considered an accessory after the
fact, the fact that theft is a continuing crime has very important implications.

B helps A steal property from C, B has affect of the contrectatio but hasn’t gotten
rid of the the property, A will be liable for the crime.

* R v Van Elling:
A stole a car, after taking it, B who knew about the theft wanted to help A by
driving the car from one place to another to help A avoid suspicion, B was found
guilty of theft and not as an accomplice after the fact

Question:
Can you ever be an accessory?

Answer:
Yes, the crime ends when the thief no longer has control over the thing/ property.

Example:

If A disposes of the goods by selling them. X then hides A and helps him to
escape, X will be an accessory after the fact. X didn’t help move the property and
the theft ends when A lost control of the property.

Question:
What happens when you receive stolen goods and know that its stolen?even
though you didn’t commit the original contrectatio?

Answer:

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The receiver of stolen goods will be considered a thief, as long as one knows that
the property is stolen, by taking the property you affect contrectatio and theft is
an on-going crime.

Exception:
If you receive stolen goods knowing that they are stolen but lack the animus
furandi, depreiving the owner then you will not be found guilty of theft.

Unauthorized borrowing:

S1 of the general law amendment act 50 of 1956, makes the unauthorized

borrowing a crime, this was passed after the case of sibiya. The intention to use is
not theft.

Any person who without a claim of right without the owners consent, removes any
property from the owners control with an intention to use it for their own purposes
and to then return the property will be guilty of the offence of unauthorized
borrowing, unless they have grounds for thinking that they had the owners
consent or that the owner would’ve consented if they had know that the accused
had borrowed the property.

Elements:
1. lack of consent
2. property capable of being stolen
3. removal from control

example:
* R v Marman
X was sent to a café by Y on a bicylcle that was Y’s. Y told X to return straight
after he had bought the groceries. X only returned 3days later. X was not found
guilty of unauthorized borrowing, there was consent from Y.

* R v Danyua:
X borrowed a bike for the day, X only returned 16days later. He was not found
guilty because the owner still had control over the bike and had given consent.

Intention:

• The accused must have the intention to use the property for his own
purposes and must know that there is no consent
• The accused wont be laible if he had a boni fide reason to right of claim
• The accused wont be laible if he had a reasonable ground for believing there
was consent.
Example:
You take something from X to induce him to pay (security), * R v Mtshali. The use
does not include retaing the property by way of security, putting the object to the
normal purposes and use.

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Unexplained possession of goods, suspected of being stolen:

S 36 of the general law ammendement act.

Any person found in possession of any goods in which there is a reasonable

suspicion that they have been stolen and that person is unable to give a
satisfactory account as to why he is in such position will be guilty of an offence of
“being in possession os suspected goods”.

* S v Cassiem:
C was found by sgt K a police officer at a flea market selling clothes. The clothes
had the price tags on them from various stores such as Woolworths, edgars,
truworths etc. K became suspicious and asked C to whom the clothing belonged,
C said that they were her daughter’s. the police couldn’t find her daughter, C then
gave them an address, the street name was correct but she gave them the wrong
house number. The police arrived at the house of her daughter in laws. The
daughter in law gave the police her proper address. They police went with C to
her house but C didn’t have a key to the house and said her husband would be
home soon. An hour later the husband was not home yet and the police gained
access via a sliding door. When they searched the house they found 5 bags full of
clothes with the price tags still on. When C went to trail she said that the bags of
clothing belonged to her husband and she didn’t know where he had gotten them
from.
Held:
C shouldve become suspicious about the clothes, it was foreseeable that they
were stolen. She had dolus eventualis and therefore the intention to steal. Theft is
a continuing crime, any person who assists in theft will be a thief. Theft only ends
when the thief disposes of the property.

09th October

Fraud
Definition:

Unlawful and intentional making of a misrepresentation which causes an actual or

potential prejudice to another.

Nature:

The crime of a liar/cheat, as such the crucial element is the misrepresentation/lie.

Elements:
1. unlawful
2. misrepresentation
3. intentional

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 4. actual/potential prejudice

unlawfulness:

general rule applies, needs to be a ground of justification in order for it to be

lawful. Grounds of justification will be consent, cohersion, authority.

Some forms of misrepresentation are lawful:

• puffing:
exaggeration of quality of goods, the law accepts that traders will exaggerate
the virtue of their products for the purposes of sale

• misrepresentations relating to love and affection:

making promises to some one so that they will sleep with you will not be
unlawful.

Misrepresentation:

An incorrect statement of fact or law ( disception ), something that is written or

oral, can be physical conduct. Can be expressed or implied, can be committed by
a commission or an omission.

By words:

Must encompass a false statement, it’s a question of fact. Court will use normal
rules of interpretation.

* R v Wege:
A demo tractor that was used for display purposes had traveled 400 miles and
was then sold to someone as new. The court had to use interpretation to
determine if new was in its ordinary sense or if new simply meant unused.
- each court will hold differently.

By conduct:

Where a school child uses a student card from a university to get a student
discount. Or where X buys goods on credit from Y, has no funds to pay for the
goods, this is technically a misrepresentation. When you buy on credit you
represent two things:
1) able and willing to pay for the purchase
2) possible for you to pay

* R v Persotam:
Misrepresented your state of mind by your conduct. A inserted a beer can ring
into a parking metre. The court held that this was a misrepresentation as to
whether the vehicle was parked legally or not.

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* S v Myeira

By silence:

Not many south African cases relating to fraud by silence, whether someone is
liable will depend on whether they had a legal duty to disclose/ act.

- duty to disclose:
1) statutory duty to speak, companies act
2) persons words give a false impression
3) seller of an article,defects must be disclosed.

* marais v Edelman:
A represented for 3yrs that he pumped a certain borehole for water without it
failing, he failed to disclose that this was 15yrs ago.

* Dimmiock v hallett:
Seller of a property described it as let, said that the buyer will make money
because there was a tenant. A knew that the tenant had already given notice. The
words were true but the intention was wrong.

By opinion:

Man tells a lie about the state of his mind [persotam] represnted a different
intention than ones mindset.

* R v Deetlefs:
A bought and got the delivery of a truck, he purchased this with a post dated
cheque and explained to the seller that he had no money in his bank account at
the time but that when the date on the cheque arrived there would be money in
his account. The cheque was never met. A never had any intention on meeting
the cheque.

Misrepresentation in the future:

General rule is that the misrepresentation must be of an existing fact, cant

misrepresent future conduct. When you do misrepresent future conduct then the
misrepresentation is not about future conduct but instead about your state of
mind [deetlefs]. The law doenst want to punish people who cant keep promises.
Point is to punish those who at the time they make a promise and have no
intention of keeping it.

Question:
What if you make a promise hoping it will be honoured but foresee that it might
not be honoured?

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Answer:
Dolus eventualis will surffice because you’ve foreseen the possibility, intention.
The misrepresentation is your non-disclosure of the possibility. Foreseeability
creates a duty to speak.

In relation to the law:

If a person fraudelenty misrepresents the state of the law, it wont help to argue in
defense that everyone is assumed to know the law is whether the person who
misrepresents actually believed what they were doing.

* S v Schnittker:
X induced a butcher to buy certain cards that displayed certain legislation and to
put them up in his butchery because this was the law. X was fully aware that this
wasn’t required. X was found guilty of fraud by virtue of a misrepresentation on
the state of mind.

* R v Larkins:
On the 24th of a particular month A represented that his salary would be paid on
the 30th of the month, because of this B gave A a loan thinking that he would be
paid back on the 30th. A had already ceded his salary to another person. This is
non-disclosure and A was therefore found guilty of fraud.

* S v Harper:
A represented that he had security for a loan, subsequently he lost the security.
He knew that the loan was only given on the basis that there was security. A had a
duty to disclose that he had lost the security.

Intention:

There are two elements to intention –

1) intention to deceive
2) intention to induce a person to act to their detriment, the intention to
defraud.

Example:

A invites B to his house and shows him a painting that he claims to be an original,
with the intention to make him look rich.

A will only have the intention to deceive.

If motive was different and B was an art buyer and A lied to him so that he would
and does buy the painting then A will have the intention to deceive and the
intention to cause prejudice. It will only be fraud if you satisfy both requirements.

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Fraud is a dolus crime and so even gross negligence will not surffice it must be
intention…dolus eventualis will surffice though.

16/10

Rape
Definition:
The unlawful intentional sexual intercourse with a woman without her consent.

Elements:
1. unlawfulness
2. sexual intercourse with a woman
3. without consent
4. intentional

Unlawfulness:

At common law, sexual intercourse was considered to be lawful when it took place
between a husband and wife and there was no consent. This changed in 1993
with the prevention of family violence act, which abolished the marital rape
exception.

The law used to be that a boy under the age of 14 was Irrebuttable presumed to
be not capable of having sexual intercourse, this changed in 1989 with the law of
evidence and criminal procedure act.

At present there is no circumstance which will allow sexual intercourse without

consent to be lawful.

* Only possibility is that rape may be lawful if done so out of necessity or

compulsion.

Sexual intercourse with a woman:

Under the common law the crime is committed by the penetration of a woman’s
vagina by a mans penis. Penetration of any other orifice is not rape, neither is
penetration by any other object other than a penis, this will only be indecent
assault. The slightest penetration is sufficient; once this has occurred the conduct
element is proven. It will not matter if there is no semen or ejaculation and if the
hymen has not been broken.

Question:
Will a man be found guilty of rape if a woman consents to penetration and then
changes her mind and withdrawals consent?

Answer:
* R v Handcock:
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X had commenced intercourse with Y, Y heard her employer coming down the
passage and then withdrew her consent, X was not found guilty of rape when he
refused to stop.

Must distinguish when a person withdraws to the consent of sexual intercourse

and when they withdraw because of factual circumstances.

In the common law a man couldn’t be raped and a woman couldn’t commit rape,
woman could only be held liable for being an accomplice to rape (indecent assault
only became a crime later). Woman who uses someone else to commit a rape is
only an accomplice.

Question:
If there is force used to overcome a woman’s resistance which results in her death
and she is dead at the time of penetration will the man be guilty of rape?

Answer:
Will only be guilty of attempted rape.

* S v W:

Reason that’s its only attempted rape is because the crime of rape is essentially a
crime of rage on the victims feelings, if they are dead then they have no feelings.

Consent:

Physical resistance will amount to no consent; also considered rape if the woman
submits to intercourse because of a threat of violence, submission will not amount
to be consent. The threat neednt be extreme it is sufficient that there be a threat
that over comes a woman’s resistance.

* R v Swiggelaar:

Policeman arrived at a woman’s house and then asked her to accompany him to
the police station; on the way there he pushed her up against a wall and had
sexual intercourse with her. She protested but did not try and stop him. The court
held that even though consent might be gathered by her conduct apart from her
words, it is unacceptable to take the lack of resistance as proof of consent.
Furthermore in any event the woman would’ve been intimidated and would’ve
feared her safety having considered his physical strength and his position as well
as the fact that he had a gun. Intimidation will be a factor.

* S v Volschenk:

Policeman threatened a woman by saying that if she didn’t have sex with him
then he would give her a false charge. He was found guilty of rape.

Question:

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How far does one go in assessing consent?

Answer:
Certain categories when people cant give consent and then consent disappears.

Categories when consent can’t be given:

1. when a woman is asleep (no voluntariness)
2. severely intoxicated ( dead drunk ) drunk enough for intoxication to effect
capacity
3. mentally ill
4. girls below the age of 12

Consent obtained by fraud:

Consent obtained by fraud will not be real consent and therefore no consent.
Fraud can be an error in persona or an error in negotio.

* R v C:

B was asleep in her bed when she woke to find a man lying on top of her having
sexual intercourse with her, she participated in the sex because she thought it
was her husband, she discovered it was actually an intruder who had climbed
through the window. The man was found guilty of rape because of error in
persona.

Error in persona:
The error has to be an actual mistake as to the actual identity of a person; this will
not apply to the personality, who he is, his account balance or whether he is
paying you.

Error in negotio:
The error occurs when the victim fails to appreciate what she is consenting to.
Fails to appreciate that she is consenting to intercourse and thinks she is
consenting to someone else.

* R v Williams

If she’s mistaken to the result of the consent to sex then it won’t be an error in
negotio.

Intention:

The perp must intend to have sexual intercourse with the woman either knowing
or foreseeing that there is no consent.

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Question:
Must the accused belief that he has consent be reasonable, objectively did he
have a reason to believe that he has consent?

1999 south African law commission, project 107, the sexual offences discussion
paper leading to the bill, this is to change the common law.

Problems:

1. sexual intercourse must be with a woman:

Possible for a man to be raped, sodomy is no longer a crime so can’t be used
as a basis.

2. has to be actual sexual intercourse:

Other acts can amount to rape such as other forms of penetrations and other
orifices.

3. requirements that need to be without consent:

If the requirement is that the woman not give consent that the focus then goes
to the victim on the trial. The proposed solution is that the words be taking out
and that “coercive circumstances” be read in.

4. intention requirement:
Whether the accused belief that he has consent needs to be reasonable and
whether it’s an objective test, should the normal law of mistake be used? Does
it apply to rape that the mistake needs to be genuine and reasonable.

South African law commission, bill no. 50 of 2003:

“Sexual offences bill”

The bill makes other acts of sexual humiliation and penetration subject to the
crime of rape. The bill gives the definition of penetration that changes the
common law.

Clause 2:
Also rape when there is the penetration of the anus or genital organs of the
victim by any genital organs of the perp.

Clause 3:
Penetration of the victim’s anus or genital organs by any object other than a
penis.

Clause 4:
The bill makes the provision for oral genital sexual offences/violations,
penetration of the mouth by any genital organs.

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 Criticism:
Rape is essentially a crime that seeks to punish the humiliation of the victim,
some people might not considered some of the acts put in the bill as
humiliating/violating. The bill takes a drastic look on rape.

The bill makes rape a non-gender specific crime.

19th October

Rape continued…

South African law commission. Amendment to the bill:

Rape redefined in S 3 of the criminal law amendment bill as “sexual penetration”.

S1(a) – genital organs into genital organs which include the mouth and anus.
Requires a sexual act.

S1(b) – any other part of the body, animal body part into the genital organs/ anus
into another or animal parts into another.

[ this was in response to the criticism that the crime of rape deals with the
humiliation of the victim.]

The crime of sexual assault will be used to apply to most non-penetrative sexual
assaults. Used to be indecent assault but looks to change this with the new bill.
The bill is still non-gender specific but there is a warning that one mustn’t lose
sight that most rape victims are female.

* NB
* S v Masiya:
A young girl was anally penetrated by a man, because the bills had not yet been
passed in 2006 the assault would only be indecent. The court declared the
definition of rape unconstitutional in the common law. Victims in such cases are
subjected to humiliating examinations to assess which orifice was penetrated, the
court hekd further that this was unacceptable and that the common law definition
violated the rights to equaility, diginity, freedom and security, privacy, integrity.
The definition was extended by the court to include anal penetration as rape.

- the bills have not yet been passed, so using this case when applying to a
rape problem remember that the definition has been extended and is done
so by the courts discretion to include sexual penetration without consent to
be rape.

Without consent:

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“coercive circumstance”, the new bill moves back to ‘without consent”
requirement. The comprehensive definition of consent is found in S 1, there is an
open ended list of coercive circumstances.

The bill expressly allows for non-physical threats to be criminalized and gives an
interpretation of forceable compulsion that is ambigious and generous and creates
the potential for a very wide range of threats that are expressed and implied,
these will be attempted rape.
A person may be guilty of rape if he or she extorts sexual favours from a victim,
forcing some one to sleep with you [ for some freedom of sexual choice is more
important than physical protection].

This seekes to protect women above their freedom of choice, the refusal to regard
the physical protection as an important part of the crime of rape will continue to
allow men to use their economical superiority to get sexual favours.

In an earlier version of the bill there was a controversial provision containing

“intentional” non-disclosure of ones health, masking it fraud and coercive
circumstances that will allow a victim to charge someone with rape even if the
intercourse was with consent but because they contracted HIV from their partner.

* S v Nyalunga:
A was convicted of rape when he failed to disclose his HIV status to his partner
and then had sex with her without her consent.

23rd October

Assault:

The unlawful intentional applying of force to the person of another or the unlawful
and intentional inspiring of a belief in the other person that force is to be applied
to them.

Elements:
1. application of force/inspiring the belief that force will be applied
2. unlawful
3. intentional

unlawfulness:

the general rule is that no circumstances will make assault lawful/justified unless
you have consent, consent is only accepted in sports situations,medical treatment
and defense of property.

Intention:

Dolus will be required, one cant negligently assault a person, it is an intentional

application of force.

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Question:
Did the accused foresee the possibility that his conduct may require the
application of force or did it inspire the fear of application of force.

Answer:
If it can be reasonably foreseen then it is assault because dolus eventualis will
surfice.

Mens rea must extend to all the elements of the crime and must especially extend
to the unlawfulness of the crime.

Where consent may have legally operated, the accused would lack intention to
assault if he had reason to believe that the other person had given consent. The
genereal rule for mistake applies, the mistake must be reasonable and genuine.
Motive is irrelevant and it is not required that the accused wanted to hurt the
someone. Motive will only mitigate the sentence.

Application of force:

The attack must be on the bodily integrity of a person, the slightest contact with
the victim is sufficient and must then be proved that it was intentional.

Indirect application of force:

Setting your dog on someone, setting a trap for a person or administering some
substance which will end up causing harm will be indirect application of assault.

* S v Marx:
The accused gave 3 glasses of wine each to two children, they became ill and
couldn’t walk. A was found guilty of assault.

* S v A:
The forced drinking of any substance as a general rule whether poisionous or not
will equal assault, for example the drinking of urine, the diminimus rule will look
past water.

* R v B:
B witnessed her lover asualt her children and did nothing about it, B was under a
direct legal duty to act and to protect her children and was therefore found guilty
of assault.

Inspiring fear:

The word “fear” is inaccurate, the court looks for the belief/anticipation that some
sort of assault is going to happen. The victim must be made to believe that a
physical aggression is about to take place/happen.

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Example:
A says to B, “im going to pull your face off”, if B is bigger and stronger and thinks
“whatever” and is unafraid, there will be no assault. Even if B is unafraid but still
knows he is going to be struck then it will be assault.

Question:
Must the complainiants fear be a reasonable one?

Answer:
* S v Miya:
Yes, the fear must be reasonable, there hasn’t been a reported case in which the
perpetrator has been acquitted because a fear was unreasonable. The court will
look to the intention of the perpetrator.

Attempted assault:

The inspiring of fear should rather be seen as attempted assault, at the moment
the only time there will be attempted assault is when the threat of bodily harm
doesn’t arise to the corresponding fear.

Example:
Y is unaware of the threat that X is posing on his bodily integrity because he is
asleep.

Assault GBH:

Difficult to define, generally depands on the circumstances and focuses on the

intention to inflict serious harm, the court will look at the weapon and the nature
of the injury. General rule is that people wearing glasses who are assaulted will be
able to charge for assault GBH. The court will look at the degree of force, the part
of the body that was injured and these are all looked at objectively, must be the
only reasonable inference that can be made.

Elements:
1. assulat
2. GBH
3. intention
4. unlawfulness

indecent assault [rape]:

the unlawful and intentional assault which is intended to be indecent.

All the factors of assulat are relevant, the only new requirement is that the assault
is indecent. There neednt be violence or harm, the mere touching is sufficient.

29
The normal grounds of justification will apply as far as intention, there must be a
separate intention to assault and this must comply with the element of assault
that you want to cause harm.

Robbery:
Assault and theft

The theft of property by the intentional use of threat and violence to induce
submission.

The reason why there is a separate crime for robbery is that the law wants to
effectively punish acts of violence, robbery attracts a longer senetence than theft
and assault would separately.

Elements:
1. theft of property
2. the use of violence/threat of violence:
the violence must be against the person of the victim and their personal
integrity, they do not need to be injured. If an accused injuries the person first
and then steals, it will be robbery provided that the accused had the intention
to steal. The violence must be immediate, the threat of violence must be
directed at the victim themselves, anyone else who is attacked such as a child
or spouse the crime will not be robbery but extortion.the threat may be implied
but does not need to be expressed.
3. there must be a causal link between the violence and the taking of the
property, taking must be achieved through the violence or the threat there
of. The violence must preced the taking, if the violence is used to take back
the property on escape then the accused will be charged with a separate
charges of assault and theft.

It wont be robbery if the intention to steal results only after the assault. It will
then be two separate counts of theft and assault

* S v Yolelo:
A was found in possession of the complainants goods as he was leaving the
house, C intercepted and assaulted A. A’s assault was regarded as closely
connected to the theft that it was robbery.

* S v Pachai:
A made threatening phone calls to a shop keeper expressing his intention to
steal his goods, when A eventually did go into the shop keepers shop to steal
his goods, B the shop keeper did nothing to stop A because he had set a trap
for A. the court held that there was no causal link between the threat and the
handing over of property and therefore it was not robbery.

Question:
What if the victim is killed at the time of the taking, will it be robbery?

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Answer:
* Dhlamini:
Generally robbery includes the taking from a person of another or in his
presence, does this form a definitional element, does the victim have to be
alive, the court held that an accused will be convicted of robbery even if the
victim is dead at the time of the taking.

* seekoei:
Property neednt be in the victims immediate proximity, this confirmed
Dhlamini.

* S v Sithole
* S v Marais

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