Written by: Adele van Schalkwyk
16 May 2024
Elements of Crime in South African Law Meaning
Despite South Africa’s progress in recent years, crime remains a pressing issue affecting individuals, families, and communities nationwide. Understanding what legally constitutes a crime is essential—not only for personal protection but also to ensure that individuals can defend themselves effectively if accused. Knowing the elements of a criminal offence under South African law provides a foundation for safeguarding one’s rights and upholding justice. Whether you find yourself the victim of a crime or facing criminal charges, familiarising yourself with these principles is the first step toward navigating the legal process.
What Is An Offence Or Crime In South Africa?
An offence can be described as any unlawful and blameworthy conduct defined by either common or statutory law as a crime, for which punishment is prescribed.
What Are The 4 Elements Of Crime In South Africa?
To understand criminal acts, we must first determine the elements of a crime under South African law, as these elements must be proved beyond a reasonable doubt by the state for someone to be found guilty of a crime in a court of law.
Every crime consists of four basic elements that must be present:
- Conduct: This is a physical act or failure to do something (omission) where there is a legal duty to do something.
- Culpability: This means that an accused must be criminally accountable while performing the unlawful act and must be blameworthy.
- Unlawfulness: An offence must be unjustified or prohibited either by common law or statutory law.
- Causation: There must be a causal link between the conduct and the resulting consequence or harm, showing that the act led to the prohibited outcome.
How Is The Element Of Legality Applied To A Crime In South Africa?
According to the principle of legality, the state may inflict punishment only for contraventions of a defined crime created by either common or statutory law that was in force, valid, and applicable before the offence occurred.
How Is The Element Of Conduct Applied To A Crime In South Africa?
Conduct means that there must be an act or omission where a legal duty exists. Conduct is any voluntary human behaviour recognised by law as falling within the bounds of an offence. The act does not necessarily need to be performed, as any attempt to commit a crime is also recognised and punishable.
Only a human can commit a liable offence. However, a human can also use an animal to commit an offence; for example, ordering a dog to attack or kill a person.
If a person has no control over his actions, such as when asleep, experiencing a blackout, or having an epileptic seizure, the lack of control may serve as a legal defence. Where a legal duty exists and the human omits to act, this can also be seen as fulfilling the requirement of conduct in criminal law—for example, if a duty to act is required by statute, court order, agreement, or when someone is responsible for a dangerous object.
How Is The Element Of Causation Applied To A Crime In South Africa?
There must be a factual link between the act and the consequence, known as “causa sine qua non” or “condition sine qua non.” In other words, it must be proved that a person’s conduct caused the prohibited consequence—for example, in murder, the crime can only be classified as murder if the consequence is the victim’s death. Courts will consider whether it is reasonable, fair, and just to hold the person accountable for the effect.
How Is The Element Of Unlawfulness Applied To A Crime In South Africa?
Unlawfulness means that conduct is considered unjustified and unlawful if society sees it as such and when it is against the law. There are several defences to unlawfulness, such as acting in self-defence or acting with consent.
When a person acts in self-defence, they use force to repel an unlawful attack upon themselves or someone else.
To claim self-defence, the following requirements must be met:
- The attack must be unlawful, and legally protected interest must be at stake.
- The unlawful attack must be imminent but not yet completed.
- There must be no other means to avert the attack, and the defensive action must be reasonable.
- There must be a balance between the severity of the attack and the defensive response.
How Is The Element Of Culpability Applied To A Crime In South Africa?
Culpability requires criminal capacity and a blameworthy state of mind, which may take the form of intention or negligence. A person must have the mental ability to distinguish between right and wrong and act according to this insight. If a person lacks the mental abilities required by law to be held criminally liable, they will not be held responsible. For example:
- Children under ten years old are presumed to lack criminal capacity.
- Mental illness is governed by legislation.
What Are The Elements Of Intention Regarding Crime In South Africa?
Intention is when a person knows the act is unlawful before committing it. It consists of three elements:
- Dolus directus (direct intent): full awareness of the circumstances and direction of the will.
- Dolus indirectus (indirect intent): awareness of consequences but secondary to other aims.
- Dolus eventualis (recklessness or foresight): foreseeing the possibility of unlawfulness and proceeding regardless. This was applied in the well-known Oscar Pistorius case.
How Is Negligence Determined In South African Criminal Law?
Negligence is the failure to exercise the level of care and caution that a reasonable person would have exercised under similar circumstances. Courts use the reasonable person test to determine negligence by asking:
- Would a reasonable person in the same circumstances have foreseen the consequences of their actions?
- Would the reasonable person have acted to prevent such a possible outcome?
- If the answers to these questions are negative, the person is considered to have acted negligently.
How Does A Court Decide If An Act Is A Crime In South Africa?
A person may be convicted and punished only if the conduct was criminal under the law at the time it was committed. “Nullum crimen sine lege” means that there is no crime without a law prescribing punishment. This safeguards individuals and ensures that the state, all its organs, and officials operate within their legal limits.
Section 35(3) of the Constitution of the Republic of South Africa 55 of 1996 enshrines the principle of legality, meaning a person cannot be convicted for an act or omission that was not legally defined as an offence at the time.
Need Urgent Legal Help With a Criminal Matter? Contact Burger Huyser Attorneys Today
In South African criminal law, the elements of crime work together to determine criminal liability and ensure justice is administered fairly. By evaluating legality, conduct, unlawfulness, culpability, and causation, the legal system maintains a balanced approach, protecting both the rights of the accused and the interests of society. Whether as an accused or a victim, understanding these elements is crucial to addressing any criminal matter effectively.
For anyone accused of a crime or impacted by criminal conduct, seeking advice from and scheduling an appointment with one of Burger Huyser Attorneys’ experienced criminal law specialists can be invaluable for navigating the complexities of the legal system and ensuring that justice is served. If you’re involved in a criminal matter, do not hesitate to contact Burger Huyser Attorneys‘ criminal lawyers and specialists who can provide the guidance and expertise needed to handle the situation appropriately. For immediate response, you can contact our criminal defense lawyers on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton callÂ
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
