I. Introduction

A country’s criminal justice system rests on the criminal law principles that it establishes for itself. Criminal law principles are essentially specific parameters that the State lays down for itself to be guided in criminal cases. Those principles vary across different countries, for the very fact that what is perceived as criminal differs with the social context, the prevalent cultural values, time period, and form of governance. What may be considered as a minor offence in one state/society may be construed as a major crime in the other. The definition of crime, therefore, is different for a given judicial system. However, despite different degrees of variation, the unifying force remains the same across all countries – to regulate the conduct of those in conflict with law, in order to ensure conformity to the socially acceptable standards. To that extent, the reader would do well to say that the definition and perception of a crime is, in some sense, reflective of Howard Becker’s ‘Labelling Theory’ (1963), wherein he argues that crime is but a label attached to an act by the society.

Thus, when a country undertakes to provide safety of life and property of its citizens, it develops penal laws. It is for the same reason that every time a crime takes place, the country acts represents the victim as the prosecuting party. This is so because it is not a crime that is perpetrated solely against an individual; rather, it is against the whole society, because the society as a whole, stands vulnerable to the dangers posed by the criminal.

This research intends to apprise the reader of some criminal law principles in the South African Criminal Justice System. While discussing those principles, reference would also be made to existing literature in the form of landmark judgments passed by the country’s Constitutional Courts, arguments forwarded by scholars, and the current position of law in South Africa.

II. Principle of jurisdiction

In South Africa, the adjudication of criminal cases is categorised in terms of the court’s subject matter jurisdiction and pecuniary jurisdiction. So, with respect to the district magistrate’s court, it can hear and adjudicate the criminal trials. But the district magistrate’s court can hear all criminal cases except murder, treason, and rape and the pecuniary jurisdiction is limited only to imposition of fine up to R 60,000. Higher up the hierarchy of courts, we have the regional magistrate’s court, which is empowered to entertain all types of criminal cases, with exception to treason, and sentence the accused to life imprisonment. The pecuniary jurisdiction of the regional magistrate’s court is limited up to a maximum imposition of fine of R 300,000. The High Court enjoys original jurisdiction extending to all kinds of offences. Apart from imposing penalties and life imprisonment, the High Court also serves as an appellate court. The aggrieved party has the option of moving to the Supreme Court of Appeal on appeal. Finally, it is the Constitutional Court, which only decides the constitutional challenges, has the final say on all these matters.

It is seen that the South African criminal jurisdiction has laws that are solely applicable within the territory of the State. However, with increasing crime rates, and various new forms of crime, there are special legislations which deal with certain specific kinds of offences – for example, organised crime, corruption, terrorism[2] etc. These special offences call for extra-territorial jurisdiction.

1. 18 of the Criminal Procedure Act mandates that in there is no time limit prescribes to institute prosecution for certain types of crime – for example, aggravated form of robbery, murder, genocide, kidnapping, stealing of child, crime against humanity, treason against the Republic of South Africa when it is in a state of war, etc). With respect to other crimes, a time limit of twenty years is prescribed, unless provided otherwise. Like many other countries, South Africa, too, provides for various immunities and grants certain privileges to diplomats and those holding consular posts under The Diplomatic Immunities and Privileges Act.[3]

III. Principle of criminal liability

The principle of criminal liability is embodied in the dictum “actus non facit reum nisi mens sit rea”, meaning that an act would not be held to be unlawful unless it is accompanied by a wrongful intention as well. According to Alkema J, criminal liability is comprised of four essential elements.[4] They are as follows:

• Performance of an act (actus reus);
• That act is unlawful (unlawfulness);
• That unlawful act causes the crime (causation); and
• The act is accompanied with a guilty mind (mens rea)

In order to fasten criminal liability, merely having an intention to commit a crime is not sufficient. It is important that the intention should be given effect to by an act. Thus, mens rea and actus reus both need to be present in order to hold a person criminally liable. The starting point while fastening criminal liability is the conduct of the accused person. If the prosecution fails to prove the wrongful act on part of the accused person, then he/she shall not be held to be criminally liable. That conduct must satisfy the element of unlawfulness.

Pretty much the same categorisation is also mentioned in the Oxford Handbook on Comparative Criminal Law[5] wherein it is argued that in order to prove criminal liability, the State must prove, beyond reasonable doubt, that the accused person has (i) voluntarily performed an act which is unlawful, and that act was accompanied by (ii) a criminal capacity, and (iii) guilty mind. There may be elaborate discussion on these points as well, because they have exceptions as well. However, they would be duly discussed in the course of this paper.

In some situations, the South African criminal law punishes even the current “state of affairs” – for example, being found in possession of a contraband substance or being found drunk in public place. This squarely fits into the category of strict liability offences wherein a person may be held responsible even though he/she may not have had any guilty mind.

IV. Principle of common purpose[6]

This doctrine didn’t exist in the Roman Law or early South African law. It emerged in South African law from the English Law, after the English occupied the Cape and various other territories belonging to South Africa. An authority on the principle of common purpose is the landmark case of S vs Safatsa and Others[7] and S vs Mgedezi and Others[8]. The rule on common purpose was upheld by both the Supreme Court of Appeal and Constitutional Court. The Courts have held that in order to apply the principle of common purpose, the Court must be satisfied beyond reasonable doubt that a prior agreement existed and was proved, and that the accused person was privy to it.

But why did South Africa come up with this principle at all? What was the mischief that was sought to be remedied? It is submitted that the principle of common purpose is primarily concerned with the element of causation. Some scholars[9] argue that in South Africa, the principle of common purpose is used almost exclusively to cases of culpable homicide and murder since it helps in resolving an important factual question of proof of causation wherein multiple persons are involved.[10] This can be understood with an example. Say for instance, there is a murder wherein the victim has been beaten to death by five people, using bludgeons. In such a situation, it is simply impossible to determine as to whose fatal blow resulted in the death of the victim. Obviously, in this case, one cannot prove causation beyond reasonable doubt. Now that causation cannot be proved, technically speaking, all the five offenders should be acquitted. But who do we hold responsible for the death of the innocent victim? It is for situations like this that the principle of common purpose is fastened on all the offenders jointly.[11] The necessary implication is that the object of this principle is to win against the unfair result of letting the offenders escape the liability. So, the South African criminal law discarded only the requirement of causation in cases of homicide and replaced the same with imputing the deed to all offenders alike.

V. Principle of attempt

Like India, South African law also maintains that a person may be held liable even for an attempt to commit a crime. In South African law, attempt is understood in time frames; one, where the attempt is complete i.e., where the accused person has reached the last step before the commission of crime and has failed to commit the crime, and second, where the attempt itself is incomplete i.e., where the accused person has not prepared completely to complete the crime. Thus, both completed and uncompleted attempts may cause a person to incur liability under the South African criminal law. Here again, we need to note one thing. In the first case of a completed attempt, proximity of the acts of the accused would not closely be looked into. But in the second case of uncompleted attempt, the Court would closely investigate and check whether the accused person’s act to determine whether or not the acts would amount to an attempt.

Another important aspect of the principle of attempt can be understood with the help of a case law. In S vs Masilela[12], the accused person intended to kill the victim and inflicted certain fatal blows. Thinking that those fatal blows had resulted in the death of the victim, the accused disposed of the body and set in on fire. However, in fact, the victim did not die from the initial blows inflicted on him but due to carbon monoxide poisoning caused due to the fire. It would be seen that although the accused had the intention to kill while inflicting the fatal blows, the unlawful act and its consequence was not complete. Similarly, the accused set alight the victim thinking that he was dead. So, we see that in one act, there is intent but no unlawful act and in the other, there is an unlawful act but no intent. While some may argue that the victim did not actually die out of the blows intended to kill and give him the benefit of only attempt, others may also argue[13] that since it was only the accused who caused the death, the liability of murder can be fastened. I concur with the second line of reasoning because in the entire transaction, it is only the acts of the accused person which have resulted in the death of victim.

VI. Principle of conspiracy

Under the South African criminal law, conspiracy is restricted only to agreements to commit a crime under S. 18 (2) (a) of the Riotous Assemblies Act, 1956. The provision does not deal with conspiracy alone. However, this principle was extended to various other definitions of offences as well where the safety and security of the State are involved – for example, terrorism and sabotage.[14]

VII. Principle of abetment

South African criminal law does not have an offence specifically by the name of abetment. It uses the term incitement or instigation. Thus, in South Africa, an act of incitement is a crime of an inchoate nature. Unlike other offences which are consequence oriented, offences like conspiracy and incitement rest solely on the non-completion of the intended consequences. Therefore, where a group of conspirators conspire to do an unlawful act, under the South African law, they would be penalised for the mere fact of their conspiracy (agreement to do an unlawful act). In case where the incitee fails to commit the crime, the inciter would be punished under the aforementioned provision. But, in case the incitee successfully commits the crime, then the inciter may be prosecuted as a co-perpetrator or an accomplice of the crime committed by the incitee.[15] There is a noteworthy debate in South Africa referred to as the “Boer Genocide” which is argued to be an incitement to commit genocide. Those who argue that this is incitement to commit genocide rely on the lyrics of a song in African which translates into: “shoot the Boers/farmers; they are rapists and robbers”.[16]

VIII. Principle of mens rea

The South African criminal law system is based on the principle “actus non facit reum nisi mens sit rea” i.e., an act is not unlawful unless it is accompanied by a guilty mind. Although the South African criminal legal system has provisions for no-fault liability i.e., strict liability, the general rule on which the criminal law operates is that in order to fasten liability, there must be fault. That fault or mens rea, however, may in turn take two more forms – either intention (dolus) or negligence (cupla). A necessary requirement of fault is that the fault must exist through every element of the crime with which the accused has been charged with. If at any stage of completing an element of the crime, fault is absent, there can be no fault. For example, if the killer believes that he/she is acting as per the law or does not anticipate the killing of a person, then in that case, such a person cannot be said to be at fault. Therefore, what necessarily flows from this is that the accused person must know that he/she is doing an unlawful act.

Under the South African law, intention is understood under four different headings. They are as follows:

(A) Dolus directus

This is generally understood as the aim and object of the accused person to commit an unlawful act or effectuate the unlawful consequence.

(B) Dolus indirectus –

This is form of intention the accused person would be said to have when he can reasonably anticipate the unlawful conduct or consequence.

(C) Dolus eventualis –

A person would be held to have harboured this form of intention when although the accused knew that certain unlawful consequences would ensue if he proceeds with his conduct, and then actually proceeds with the conduct thereby resulting in that unlawful consequence. Shortly put, the accused person directs himself in a certain way even though he is well aware of the consequences that follow.[17]

There can be a unique situation wherein all the above-mentioned three forms of intention may present in one single act of the accused. For example, if the accused throws a bomb into a crowd of people, all the three forms of intention are satisfied.

IX. Principle of insanity

The common law rule in criminal justice system is that it is for the prosecution to prove criminal liability of the accused beyond reasonable doubt. However, the general rule comes with the exception i.e., defence of insanity. When the defence of insanity is raised, the burden of proof shifts on the accused to prove that he/she was suffering from a mental defect or mental illness at the time of commission of the crime.[18] Some scholars argue that this is gross violation of the constitutional presumption of innocence of the accused.

Now, what needs to be looked into the meaning and implication of the word “mental illness” and “mental defect” The meaning of these words was explained in S vs Stellmacher[19] wherein it is described as “a pathological disturbance of the accused person’s mental capacity, not a mere temporary mental confusion which is…attributable to…external stimuli such as alcohol, drugs or provocation.”[20] Such mental defect/illness prevents the accused person from appreciating the unlawfulness of their act.[21]

Earlier, under the influence of English Law, South Africa followed the formula of “guilty but insane”. However, with the enactment of the Criminal Procedure Act, 1977, the same has been changed to “not guilty by reason of mental illness or mental defect.”[22] Under the said provision, the accused person who suffers from mental illness or mental defect is unfit to stand trial. However, the Court relies on expert medical evidence and satisfies itself that there actually is reasonable suspicion that the accused person is incapable of appreciating the nature of his/her act, nature of proceedings, and defence.[23]  The question whether the accused person is fit to stand trial or not is determined by a psychiatric examination. Such an accused person is kept are sent to a mental hospital until they become fit and able to stand trial.[24]

X. Principle of consent

Consent can be understood from two different perspectives: (i) Consent as a defence, and (ii) Consent as a part of individual autonomy.

(A) Consent as defence

The principle of consent embodies the maxim “volenti non fit injuria”. However, this is applicable only to a limited extent under criminal law. It cannot be used as a ground of justification in cases of rape, theft and offences relating to property.  In order to take the defence of consent, the accused person needs to show that the consent was voluntarily given by the victim, without coercion. The consenting party must, in turn, be capable of consenting under the law.

(B) Concept as a part of individual autonomy

While it is not allowed to invoke the defence of consent in case of a person consenting to be killed, the High Courts in South Africa have recently been carving out exceptions in the medical context where the patient is in a vegetative state and has no chances of recovering. In South Africa, the concept of euthanasia is still debated and some judges hold physician assisted euthanasia to be equivalent to murder, let alone culpable homicide.[25] The South African judiciary is yet to take a concrete stand on this issue, although the South African Law Commission has recommended that such requests by the patient or patient’s family, colloquially called “living will”, be given legal recognition.

XI. Principle of private defence

Jonathan Burchell defines private defence thus:

“A person who is the victim of an unlawful attack upon person, property or other recognised legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the course of such private defence is not unlawful” [26]

In the South African criminal legal system, the term private defence is preferred over ‘self-defence’. The underlying idea is that private defence is wider in its ambit such that it extends to defence of a third party as well. Insofar as the time of operation is concerned, private defence arises when a person faces an imminent or unlawful attack or where a third party’s interests are endangered. In such situations, if a person exercises force to repel the attack and remove the imminent danger, then any harm or damage that may result from such repelling force would not be unlawful. To that extent, South Africa recognises that if a person kills in private defence, it would not qualify as murder,[27] even though the threat would have been of grievous hurt.[28] However, to make the law clearer, it needs to be clarified as to when exactly the right of private defence would be vested in a person. Thus, the attack, which was unlawful, must have either commenced or had been imminent threatening legally protected interests of a person. An important question arises: Is private defence available to a person when the one who is attacking is incapable of forming a criminal intent – for example, a mentally disordered person? The issue was resolved in R vs K,[29] wherein the court held that private defence can be exercised against a person who lacks criminal capacity as well. With respect to the element of proportionality, the Courts have held that only that much force should be used as is necessary to ward off the imminent danger or apprehension. If the bounds of reasonable self-defence are exceeded, the extra force applied would amount to an assault.[30]

XII. Principle of joint liability

In common parlance, we understand joint liability where the charge of an offence is extended to the other person as well. In that sense, it would be seen that a crime can be committed by three types of persons: (i) the perpetrator himself, (ii) accomplice(s), and (iii) accessories after the fact. For the purposes of our discussion, we are concerned with accomplices, one who helps the perpetrator in furtherance of the crime. In that background, we can understand the issue of corporate criminal liability in South Africa under S. 332 (1) of the Criminal Procedure Act, 1977. The relevant part of the provision reads as follows:

“For the purpose of imposing upon a corporate body criminal liability for any offence, whether under any law or at common law-

1. any act performed, with or without a particular intent, by or on instructions or with permission, express or implied, given by a director or servant of that corporate body; and
2. the omission, with or without a particular intent, of any act which ought to have been but was not performed by or on instructions given by a director or servant of that corporate body, in the exercise of his powers or in the performance of his duties as such director or servant or in furthering or endeavouring to further the interests of that corporate body, shall be deemed to have been performed (and with the same intent, if any) by that corporate body or, as the case may be, to have been an omission (and with the same intent, if any) on the part of that corporate body.”[31]

Under this provision, if there is any act performed with an intention or by instruction or permission on behalf and on instructions of the corporate body, the corporate body may be held to be directly liable for any offence. The principle of joint liability is a more severe form of vicarious liability. This can be better understood in terms of the common purpose doctrine that exists in South Africa.

XIII. Principle of minimum criminalization

In South Africa, the principle of minimum criminalization was introduced by way of legislation as the Criminal Law Amendment Act. While enacting the law, it was intended that serious and violent crime rates reduce. The concept of minimum criminalization underlies the idea of retribution and deterrence. The law was passed in the context of various other policies and public perception that the government was not adequately dealing with serious crimes. Thus, there came to passed various strict laws on bail, criminalization of gangs, culminating into the minimum sentencing laws.

A critical aspect under this principle that needs attention is the culture of violence against women and therefore, a number of women’s rights organizations and victim support groups support this principle, insofar as specific sexual offences are severely dealt with. However, as scholars argue, a problem that South Africa is facing right now due to this principle is the overcrowding in the prison. It needs to be checked whether South Africa can afford to maintain the increasing prison population. The situation in South Africa is somewhat similar to the Indian context, wherein the condition in which the prisoners live, is a gross violation of some of their basic human rights and therefore, unconstitutional.[32] The principle of minimum criminalization and sentencing has evoked a lot of criticisms from criminal justice scholars and judges. Among other commentators, Judge Fagan, who is the Inspecting Judge of Prisons, commented against the minimum criminalization and its impact and observed:

“The effect of the minimum sentence legislation has been to greatly increase the number of prisoners serving long and life sentences. It has resulted in a major shift in the length of the prison terms”[33]

XIV. Principle of sentencing policy –

The sentencing policy in South Africa is based rests primarily with the trial courts. The trial court is empowered to exercise discretion while determining the sentence based on the severity of crime. However, they are appealable. The sentencing policy is applied on a case-to-case basis and there is no fixed parameter to decide a sentence.[34] As per the minimum sentencing policy vis-a-vis certain offences, the judicial officers have the power to impose lesser punishments in case they feel that there exist such “compelling circumstances” as to justify lesser punishment. This minimum sentence principle is still valid and operational in South Africa.[35]

The sentencing policy in South Africa is guided by the following three principles, collectively known as “trial of Zinn”:

(A) Gravity of the offence

 In order to ensure that the punishment is proportionate to the crime committed, the Court looks at the severity of the crime. For that, aggravating and mitigating factors will be given due consideration.

(B) Condition of the offender

 This point looks at the current condition of the offender and some of the circumscribing facts like the past record of the offender, any other mitigating factors which led him to commit the crime, age of the offender etc.

(C) Public interest

This factor looks at the greater public interest that is involved while convicting the offender. For example, if the crime is very heinous and falls within the category of the rarest of the rare cases, then it would be in the context of larger public interest that bail may not be granted to the offender.

XV. Principle of fair labelling

The principle of fair labelling flows from the theory of retributive justice and has not been given much consideration in South Africa. The relevance and importance of this principle was explained by Prof. Andrew Ashworth. In brief, the principle of fair labelling requires that there should be a co-relation between the name/description of the offence and the impugned wrongful act.[36] The principle of fair labelling has a constitutional argument to it as well. It is argued by scholars that if the offender commits a crime, the charge or stigma attached to him/her must correlate with their wrongful act. In this background, it is very important to look at the menace of media trial. Media trials often lead to over-stigmatizing the accused person. So, say for example, when we look at the landmark case of Oscar Pictorius. In this case, Pictorius was tried for the murder of Reeva Steenkamp. The Court convicted him of culpabale homicide. However, the media reports and public response was just otherwise. The general masses started branding Pictorius as a murder – a charge which is more serious than culpable homicide. In situations like this, the principle of fair labelling seeks to avoid over-stigmatization of the offender.

XVI. Principle of parsimony

The general sentence passed in case of convicted offenders include imprisonment. The principle of parsimony is another sentencing guideline, similar to proportionality, which seeks to have the imposition of imprisonment ass less as possible, even if it is for shorter periods. It is still relevant in South African criminal law. The moot question that arises here is whether a prison sentence is necessary at all. The principle of parsimony is all the more important in cases of children or delinquent offenders. This implies that the authorities must look for other alternatives to imprisonment whenever and wherever possible. Thus, it follows that if there is a punishment inflicted on the offender more than the severity of the crime they have committed, then that is morally unacceptable and unjustifiable. The underlying idea of the principle of parsimony is that should a person be inflicted with punishment, it must be done in a manner that as less severe as possible.

XVII. Principle of proportionality

Under the South African criminal law, the Constitutional Court of South Africa operates on the premise of individual rights. Hence, the proportionality test has become a vital point of the jurisprudence on limitations. In its strict sense, the principle of proportionality means a moral reasoning on the judges’ part wherein they weigh the severity of the crime against the rights of the accused person. In a sense, therefore, the principle is test of balancing the interests.[37] The landmark case on the proportionality test was S vs Makwanyane, wherein the court was supposed to decide whether the capital punishment was justified in light of the Constitutional principles of South Africa. The Constitutional Court of South Africa held as follows:

“The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality … Principles can be established, but the application of those principles to particular circumstances can only be done on a case by case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.”[38]

Another relevant case law that we may consider is S vs Madikane[39] wherein the Court held that the sentence must be proportionate to the offence committed.

The principle of proportionality has its own critics as well. Among other arguments forwarded while critiquing this principle, a consistent argument that is put forth is that the courts many a times, take political and moral decisions in the garb of balancing the rights and values. [40] It is further argued that the decision in such cases, where proportionality principle is invoked, rests heavily on the political and personal background of the judges.

XVIII. Principle of parity

The underlying essence of the principle of parity is that there should not be selective punishment and inconsistency vis-a-vis disciplinary actions must be avoided. The relevant case law to substantiate the point is NUM and Another vs Amcoal t/a Arnot Colliery and Another. In this case the Court was supposed to decide on the fairness of the dismissal of sixteen employees because they had failed to comply with certain instructions.[41]  The Court observed:

“The parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike. It was not intended to force an employer to mete out the same punishment to employees with different personal circumstances just because they are guilty of the same offence.”[42]

The Labour Courts of South Africa have stressed on having a disciplinary consistency. It has been argued by the courts[43] that the employees must be measured by the same standards.

XIX. Principle of totality

This principle is invoked in cases where the offender is charged with multiple crimes, each resulting in separate punishments. If the punishment is given for all the charges, then the cumulative effect of the sentence would be exorbitantly high and disproportionate. While discussing the cumulative sentences, the principle of totality comes into the picture. The relevant provision in this regard is S. 280 (1) of the Criminal Procedure Act, 1977. It reads as follows:

“When a person is at any trial convicted of two or more offences or when a person under sentence or undergoing sentence is convicted of another offence, the court may sentence him to several punishments for such offences or, as the case may be, to the punishment for such other offence, as the court is competent to impose”

Prof. S.S. Terblanche in his work[44], while commenting on S. 280 argues that the purpose of this provision is to prevent the severe effect of cumulative sentencing.[45] In S vs Mpofu,[46] Terblanche commented on the totality principle and held:

“The Court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. In effect, the accused normally receives a ‘discount’ for bulk offending, particularly when the various counts are similar in nature, for the imposition of a separate and consecutive sentence for each individual charge would result in a very high aggregate penalty which would be disproportionate to the moral blameworthiness of the accused having regard to his line of conduct as a whole.”

It is further argued by Prof. Terblanche that reduction of the cumulative effect of the punishment is an integral part of the South African sentencing policy. One must not misunderstand the situation that this means that an offender gets lesser punishment for multiple offences. The law and the jurisprudence evolved by the scholars in South Africa, as it stands, mandates that the Court must take into account all the circumscribing facts and consider the situation in its totality while determining the sentence. On a personal note, I concur with Prof. Terblanche’s argument that the cumulative sentencing is disproportionate and that the Court must take a holistic view i.e., adopt the totality principle and determine the appropriate punishment.

XX. Principle of mistake

Under Common Law, the defence of mistake of law is not available to the accused under the maxim ignorantia juris non excusat. Generally, a person may not have the necessary evil intent and may think that his acts and intentions are lawful, even then mens rea may be imputed to him/her. Earlier, South Africa ascribed to this rule. However, in a 1977 landmark case of S vs De Blom[47], the South African law, abolished the ignorantia juris rule. In this case, the Rumpff CJ observed that in crimes where only the dolus suffices, the accused person may take the benefit of mistake of law. However, it must be capable of being reasonably inferred from the evidences that the offender was actually ignorant of the fact that his act was unlawful.  Thus, when culpa only and not dolus alone is required as mens rea, then the defence of mistake of law can be taken if the mistake was a reasonable one. [48]South Africa now recognises the defence of mistake of law in criminal cases.[49] The underlying logic of this stand by South Africa is that it requires that offender must know that the act he/she is doing was unlawful. Therefore, once the prosecution proves that the accused person had willingly done the unlawful act, the onus shifts on the accused person to show that he indeed was acting under a mistake of law. In a sense, therefore, the understanding of mens rea includes knowledge of unlawfulness. The principle of South African criminal law is embodied in the following maxim: nulla poena sine culpa i.e., no punishment without culpability. Leading scholars[50] such as E.M. Burchell and P.M.A. Hunt from South Africa argue that if a person is punished for an act which he performs neither intentionally nor negligently, then this would be unfair and it would result in the weakening of respect for the law. Hence, the requirement of knowledge of unlawfulness.  After the S vs De Blom case, the following is the law in South Africa:

• Ignorantia juris rule is no more in existence;
• No difference between mistake of fact and mistake of law;
• In case of offences requiring dolus, an honest mistake would negative mens rea and in case of offences requiring culpa, only an honest mistake would negative mens rea; and

The onus lies on the accused person in order to raise the defence of mistake. However, the prosecution bears the final onus of proving beyond reasonable doubt that the accused person performed the unlawful act intentionally and wilfully.[51]

*****

[1] Author is a student at The West Bengal National University of Juridical Sciences, Kolkata, India.

[2]  The Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004, No. 33, Acts of Parliament, 2004 (SA).

[3]  The Diplomatic Immunities and Privileges Act, 2001, No. 37, Acts of Parliament, 2001 (SA).

[4] Zingela Mzwempi vs The State, High Court of South Africa, 2011 (2) (SACR 237.

[5] THE HANDBOOK OF COMPARATIVE CRIMINAL LAW (Kevin Jon Heller & Markus D. Dubber ed., Stanford University Press 2011).

[6] South Africa does not have the bifurcation of common object and common intention like in India.

[7] S vs Safatsa and Others 1988 (1) SA 868 (AD).

[8] S vs Mgedezi and Others 1989 (1) SA 687 (AD).

[9]Mc Mare,The doctrine of common purpose in South African law, http: //uir. unisa.ac.za/bitstream/handle/10500/19561/Joubert__JJ__0869819380__Section4.pdf?sequence=4&isAllowed=y

[10] C.R. SNYMAN, CRIMINAL LAW 258 (2d. 1989).

[11] S vs Madlala 1969 (2) AD 637.

[12] S vs Masilela 1968 (2) SA 558 (A).

[13] See decision rendered by Rumpff JA in S vs Masilela.

[14] Internal Security Act, 1982, S. 54 (1), (2), (3), No. 74, Acts of House of Assembly, 1982 (SA). These provisions deal with terrorism, subversion, and sabotage respectively.

[15] HJ van der Merwe, The prosecution of incitement to genocide in South Africa, 16(5) PELJ 328, 334 (2013).

[16] African National Congress vs Harmse: In Re Harmse vs Vawda, 2011] ZAGPJHC 39; The High Court held that the impugned lyrics do in fact incite to commit genocide.

[17] See R vs Jolly 1923 AD 176.

[18] Criminal Matters Amendment Act, 1998, § 5, No. 68, 1998. Amended S. 78 of the Criminal Procedure Act, 1977.

[19] 1983 (2) SA 181 (SWA).

[20] M Swanepoel, Legal Aspects With Regard to Mentally Ill Offenders in South Africa, 18(1) PELJ 3238, 3248 (2015).

[21] supra

[22] S. 78 (8) (a) of Criminal Procedure Code. Retrieved from: https://www.justice.gov.za/legislation/acts/1977-051.pdf

[23] Id.

[24] Criminal Procedure Act, 1977, § 77 (6) & 77 (7), No. 51, Act of House of Assembly, 1977 (SA).

[25] Donald Dinnie, Euthanasia in South Africa, NORTON ROSE FULBRIGHT (Feb. 04, 2020), https://www.financialinstitutionslegalsnapshot.com/2020/02/euthanasia-in-south-africa/ See also, S vs Hartmann (1975).

[26] JONATHAN M. BURCHELL & JOHN MILTON, PRINCIPLES OF CRIMINAL LAW, 230 (2005).

[27] S. Goosen, Battered Women And The Requirement Of Imminence In Self-Defence, 16(1) PELJ 71 109 (2013).

[28] S vs Jackson 1963 (2) SA 626 (A).

[29] R vs K 1956 (3) SA 353 (A).

[30] S vs Ntuli 1975 (1) SA 429 (A).

[31] Criminal Procedure Act, 1977, § 332, No. 51, Act of House of Assembly, 1977 (SA).

[32] J. Steinberg, Prison overcrowding and the constitutional right to adequate accommodation in South Africa, CENTRE FOR THE STUDY OF VIOLENCE AND RECONCILIATION, (Jan. 2005), https:// www. Researchgate.net/publication/237340814_Prison_Overcrowding _and_the_ Constitutional _Right_to_ Adequate_ Accommodation_in_South_Africa.

[33] H. Fagan, Curb the vengeance: laws on minimum sentencing and parole spell worsening prison conditions, SOUTH AFRICAN CRIME QUATERLY (Jan. 10, 2004), https://pdfs.Semanticscholar.org/7e7f/3f 68 d521b 5f7eceff92fe7ce75861e68e800.pdf?_ga=2.261861069.1364670422.1600670652-351451748.1600670652.

[34] How Jail Time is Determined in South Africa, LAW FOR ALL, https://www.lawforall.co.za/arrest-crimes/jail-time-south-africa/

[35] This law was held to be valid in S vs Malgas case, [ 2001 (1) SACR 469 (SCA)].

[36] Louise Jordaan, The principle of fair labelling and the definition of the crime of murder, J.S. Afr. L. 569, 572 (2017).

[37] Niels Petersen, Proportionality and the Incommensurability Challenge in the Jurisprudence of the South African Constitutional Court, TAYLOR AND FRANCIS, (Apr. 07, 2017), https://www.tandfonline.com/doi/pdf/ 10. 1080/ 19962 126.2014.11865116.

[38] S vs Makwanyane 1995 (3) SA 391.

[39] S vs Madikane 2011 (2) SACR 11 (ECG).

[40] PETERSEN, supra note 37 at 428.

[41] Magate Phala, Inconsistency relating to the disciplinary sanctions, THE SOUTH AFRICAN LABOUR GUIDE,https://www.labourguide.co.za/most-recent/1922-in#:~:text=%E2%80%9CThe%20parity% 20 principle % 20 was% 20designed,guilty%20of%20the%20same%20offence.%E2%80%9D.

[42] NUM and Another vs Amcoal t/a Arnot Colliery and Another [2000] 8 BLLR 869 (LAC).

[43] Gcwensha vs CCMA & Others (2006) 3 BLLR 234 (LAC).

[44] S.S. TERBLANCHE, THE GUIDE TO SENTENCING IN SOUTH AFRICA, (LexisNexis South Africa, 2013).

[45] Michelle Nel, Sentencing Practice in Military Courts, UNIVERSITY OF SOUTH AFRICA (2012), http://uir.unisa.ac.za/bitstream/handle/10500/5969/dissertation_nel_m.pdf?sequence=1.

[46] S vs Mpofu 1985 (4) SA 322 (ZHC) at 324 G.

[47] S vs De Blom 1977 (3) SA 513.

[48] Ibid

[49] Kumaralingam Amirthalingam, Mens Rea and Mistake of Law in Criminal Cases: A Lesson From South Africa, AUSTRALIAN LEGAL INFORMATION INSTITUTE, http://www.austlii.edu.au/au/journals/UNSWLJ/ 1995/ 21.pdf.

[50] Such as E.M. Burchell and P.M.A. Hunt.

[51] DE BLOM, supra note 47.

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