What Is Criminal Law
South African criminal law is the body of national law relating to crime in South Africa. Broadly speaking, it defines as criminal such human conduct as threatens, harms or endangers the safety and welfare of people. It also sets out the punishment to be imposed on persons who engage in such conduct, provided they have criminal capacity and act unlawfully and with a guilty mind. In the definition of Van der Walt et al, a crime is “conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted.” Crime involves the infliction of harm against society. The function or object of criminal law is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.
Criminal law (which is to be distinguished from its civil counterpart) forms part of the public law of South Africa, as well as of the substantive law (as opposed to the procedural). In South Africa, as in most adversarial legal systems, the standard of evidence required to validate a criminal conviction is proof beyond a reasonable doubt. The sources of South African criminal law are to be found in the common law, in case law and in legislation.
The criminal justice system in South Africa is aimed at law enforcement, the prosecution of offenders and punishment of the convicted. Punishment is the authoritative infliction by the state of suffering for a criminal offence. There are numerous theories of punishment, whose two main purposes are
1. to justify the punishment imposed; and
2. to define the type and scope of different punishments.
Legality And The Constitution
The South African Constitution is committed to the principle of legality, with, for example, its provision that “every accused person has a right to a fair trial, which includes the right
1. “not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; and
2. “to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”
In terms of the ius certum principle, the crime must not, as formulated, be vague or unclear, so that the subject may understand exactly what is expected of him. Although the Constitution does not expressly provide that vague or unclear penal provisions may be struck down, it is “quite possible and even probable,” according to Snyman, that the first provision above will be interpreted in such a way that vaguely defined statutory crimes may be declared null and void. This “void-for-vagueness” rule may be based either on the right to a fair trial in general or on the principle that, if a criminal norm in legislation is vague and uncertain, it cannot be stated that the act or omission in question actually constituted an offence prior to a court’s interpretation of the legislation.
It is also possible to base the operation of the ius certum provision on section 35(3)(a) of the Constitution, which provides that the right to a fair trial includes the right to be informed of the charge with sufficient detail to answer it. In S v Lavhengwa it was held that the right created in section 35(3)(a) implies that the charge itself must be clear and unambiguous. This, according to the court, would only be the case if the nature of the crime is sufficiently clear and unambiguous to comply with the constitutional right to be sufficiently informed of the charge. It was further held that, in order to comply with the requirement of sufficient clarity, one should bear in mind
1. that absolute clarity is not required, and reasonable clarity is sufficient; and
2. that a court, in deciding whether a provision is clear or vague, should approach the legislation on the basis that it is dealing with reasonable people, not foolish or capricious ones.
It is not only statutory criminal provisions that may, on the ground of vagueness, be declared null and void in terms of the Constitution, but also provisions of common law that are vague and uncertain. In S v Friedman it was argued on behalf of the accused that the rule in regard to the crime of fraud (that the prejudice need be neither actual nor of a patrimonial nature) was unconstitutional on the ground of vagueness. Although the court rejected the argument, it is noteworthy that nowhere in its judgment did it call into question the principle that rules of common law may be declared null and void on the ground of vagueness.