MRS NC TLALI

CRIMINAL LAW A

2017

Criminallawaunizulu.blogspot.co.za

class notes 08.02.2017

INTRODUCTION

Sources of criminal law:  there are 3 main sources of our criminal law:

•Legislation: an Act, Criminal Procedure Act. Constitution of the Republic of SA Act 108 of 1996

•Common Law: this refers to those rules of law not contained in an Act of Parliament or Legislation enacted by some other subordinate legislature, such as a provincial legislature but which are nevertheless binding as any legislation.

 The common law of SA is Roman-Dutch Law. Roman-Dutch law is that law which originated 2500

years ago in Rome.

Case Law: the role of Courts in describing and developing our criminal law is vital. A lower court is in principle bound to follow the construction placed upon a point of law by A higher court. 

THEORIES OF PUNISHMENT

•Before we can analyse the rules of criminal law we need to discuss or look into certain topics which we ought to have knowledge of before proceeding.

•We will discuss the theories of punishment, that is those theories dealing with the possible answers to the following question: why does society punish people? Now in considering the this question we in fact embark upon an investigation into the whole right of existence of criminal law.

•Having convicted an accused, the court must impose a punishment upon him. However, what is the purpose of or justification for punishing offenders?

The different answers, as well as arguments justifying the answers which have been given to this question, are called theories of punishment. But considering the theories of punishment we actually consider the whole purpose of criminal law.

•In other words, determining criminal liability is not an end itself. After X has been convicted of a crime he must be sentenced. A sentence usually infringes upon X’s basic human rights, such as his right to freedom of movement, privacy, dignity. In a society which values human rights, this infringement calls out to be justified.

CLASSIFICATION OF THEORIES

•There are a number of theories of punishment. These theories are classified into the absolute theory, the relative theory, and the combination theory. See diagram on pg. 10

•Some of these theories are very old some quite modern.

•When distinguishing between the absolute and relative theories it should be noted that there is only one absolute theory namely the retributive theory, while there are a number of relative theories.

•The relative theories are also known as the purpose theories.

According to the absolute theory, punishment is an end in itself, while according to the relative theories, punishment is only a means to a secondary end or purpose. This secondary purpose differs from one relative theory to another:

•The preventative theory sees purpose preventing crime, the deterrent theory sees it as deterring the individual or of society from committing a crime, and the reformative theory sees it as reforming the criminal.

RETRIBUTIVE THEORY

Meaning: retributive theory is the restoring of the legal balance which has been disturbed by the commission of the crime. Punishment is the payment of the account which because of the commission of the crime, X owes society

NB: it says or means there should be a direct proportion between the extent of harm and the extent of punishment imposed.

Two scales of justice become balanced again.

•Retribution does not mean vengeance…. By vengeance we mean an “eye for an eye” or a “tooth for a tooth” this is a primitive meaning and modern criminal law writers reject this meaning and  they prefer a more enlightened meaning, namely restoring of the legal balance which has been disturbed by the commission of the crime.

•Equal proportion between degree of punishment and degree of harm: according to the retributive theory the extent of the punishment must be proportionate to the extent of the harm done or the violation of the law.

•The less the harm the less the punishment ought to be, because the debt which the offender owes is then smaller.