CODIFICATION OF COMMON LAW CRIMES

ARGUMENTS FOR & AGAINST CODIFICATION IN SA

Readings
CR Snyman A Draft Criminal Code for South Africa (Book Review) (1997) 10 SACJ 303. CR Snyman Codifying the Criminal Law the Australian Experience (2000) 13 SACJ 214.

Readings
HR Hahlo ...and save us from codification (1960) 77 SALJ 432. DS Koyana Reflections on the criminal law of a new South Africa (1991) 108 SALJ 730. J Burchell Principles of Criminal Law 3rd ed (2005) pp. 16-17

SELECTED COMMON LAW CRIMES

CRIMES AGAINST THE STATE

Readings
J Burchell Principles of Criminal Law 3rd ed (2005) chapters 80 and 81. CR Snyman Criminal Law 5th ed (2008) at pp. 309-317.

1. TREASON (HIGH TREASON)

Common Law definition of Treason: S v Banda 1990 (3) SA 466 (B)

any overt act committed by a person, within or without the State, who, owing allegiance to the State, having majestas, with the intention of
a) unlawfully impairing, violating, threatening or endangering the existence, independence or security of the State; b) unlawfully overthrowing the government of the State;

c) unlawfully changing the constitutional structure of the State; or

d) unlawfully coercing by violence the government of the State into any action or into refraining from any action.

Treason:
siding with external enemies unlawful internal revolutionary change

to overthrow or replace the government by unconstitutional means

Treason: history
Roman law: perduellio crimen laesae maiestatis

maiestas = supreme power of the state (majestas)

Requirements:
1. Unlawfulness 2. Conduct: Acts of High Treason 3. Allegiance 4. State 5. Intention: (animus hostilis = hostile intent)

Unlawfulness
Government is completely identified with State. Defence of coercion.

Conduct
Hostile Intention forms part of the wrongdoing of the crime intrinsically linked to conduct. Attempt Omission can also amount to high treason Violence directed towards State not a necessary element Can be committed during times of war & peace.

Allegiance

State

S v Banda: Intention
The intention of:
1. unlawfully impairing, violating, threatening or endangering the existence, independence or security of the state; 2. unlawfully overthrowing the Government of the State; 3. unlawfully changing the constitutional structure of the State; or 4. unlawfully coercing by violence, the Government of the State into an action or into refraining from any action.

Intention
Core requirement of crime of treason Judged subjectively Hostile Intent: (a) Intention to overthrow the State (b) Intention to achieve less serious result (e.g. pressurise or coerce government into adopting or refraining from a course of action) Motive irrelevant

Jurisdiction
Treason can be committed inside or outside the country

Punishment
Used to be death penalty is now in courts discretion see Burchell

Treason & the Bill of Rights