CRIMINAL LIABILITY/REQUIREMENTS FOR
LIABILITY
a)Legality: The
very first question to be asked in determining somebody’s criminal liability is
whether the type of conduct forming the basis of the charge is recognised in
our law as a crime.
A court may not convict a person
and punish him merely because it is of an opinion that his conduct is immoral
or dangerous to society because in general terms the “person deserves” to be
punished.
A court must certain that X’s
alleged conduct( the removing of a minor from her parental home without the
consent of her parents in order to marry her- which amounts to a crime of
abduction/ukuthwala) is
recognised by law as a crime. This principle is known a the principle of
legality.
b) Act
or conduct:
Assuming that
the law regards the conduct as a crime, the first step in enquiring
whether X is
criminally liable is to enquire whether there was conduct on the part
of X. By
``conduct'' is meant an act or an omission. Since the punishment of omissions
is
more the exception than the rule, this requirement of liability is
mostly referred
to as the ``requirement of an act''.
The word ``act'' as used in
criminal law does not correspond in all respects with the ordinary everyday
meaning of this word; more in particular it should not be treated as synonymous
with a muscular contraction or bodily movement.
It should rather be treated as a
technical term of art which is wide enough in certain
circumstances to include an omission to act.
For the purposes of criminal law,
conduct can lead to liability only if it is voluntary. Conduct is
voluntary if X is capable of subjecting his bodily or muscular movements
to his
will or intellect. For this reason the bodily movements of, for example, a
somnambulist[sleepwalker] are not considered by the law to
amount to an ``act''.
An omission -that is a
failure by X to act positively -can lead
to liability only if the
law imposed a duty on X to act positively and X failed to do so.
c) Conduct
must comply with definitional elements of a crime: x’s
conduct must comply or correspond with the definitional elements of a crime in
question.
To put it differently it must be
conduct which fulfils the definitional elements or by which these definitional
elements are realised.
d) Unlawfulness: The
mere
fact that the act complies with the definitional elements does not
necessarily mean that it is also unlawful in the
sense in which this word is used in criminal law.
If a father gives his naughty child
a moderate hiding in order to discipline him,
or a policeman gets hold of a criminal on the run by knocking him
to the
ground in a tackle, their respective acts are not unlawful and they will
therefore not
be guilty of assault, despite the fact that these acts comply with the
definitional elements of the crime of assault.
``Unlawful'', of course, means
``contrary to law'', but by ``law'' is meant here not merely the rule contained
in the definitional elements, but the totality of the rules of law, and this
includes rules which in certain circumstances allow a person to commit an act
which is contrary to the ``letter'' of legal prohibition or norm.
In practice there are a number of
well-known situations where the law tolerates an act which infringes the
``letter'' of the definitional elements. These situations are known as grounds
of justification
Well-known grounds of justification
are
private defence
(which includes self-defence), necessity, consent, right of
chastisement and official capacity.
In the examples above the act of
the father
who gives
his son a hiding is justified by the ground of justification known as
right of
chastisement, while the act of the policeman is justified by the ground of
justification known as official capacity.
(e) Culpability: The
following and last requirement which must be complied with is that X's
conduct must
have been culpable. The culpability requirement means that there
must be
grounds upon which X may personally be blamed for his conduct.
Here the focus shifts from the act to the
actor, that is, X himself his personal
abilities,
knowledge, or
lack thereof.
The culpability
requirement comprises of two
questions or, as it were, ``sub-requirements''
The first of these sub
requirements is that of criminal capacity (often abbreviated
merely to
``capacity''). This means that at the time of the commission of the act X
must have
had certain mental abilities. A person cannot legally be blamed for his
conduct unless
he is endowed with these mental abilities. The mental abilities X
must have
are:
(1) the ability to appreciate the
wrongfulness of his act (i.e. to distinguish between`
`right'' and
``wrong'') and
(2) the ability to act in
accordance with such an appreciation
Examples of categories of people
who lack criminal capacity are the mentally ill(``insane'')
persons and young children. The second
sub
requirement (or ``leg'' of the culpability
requirement) is that X's act must
be either intentional or negligent. Intention is a requirement for most
offences, but
there are also offences requiring only negligence. Briefly then,
we can say that the four general requirements for a crime are the
following:
(1) conduct
(2) which complies with the
definitional elements of the crime
(3) and which is unlawful
(4) and culpable
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