Criminal Law
| Jurisdiction | South Africa |
| Author | Kemp, G. |
| Pages | 434-460 |
| Published date | 10 March 2021 |
| Citation | 2019/2020 YSAL 434 |
| DOI | https://doi.org/10.47348/YSAL/v1/i1a8 |
| Date | 10 March 2021 |
434
1. INTRODUCTION
South African policy makers, as in most democracies, often exp erience
difficulty ba lancing free spee ch, robust political activities a nd artistic and
other forms of expression, on the one ha nd, with the concerns and interests
of vulnerable groups (especially ch ildren), historically margina lised
communities, and fragi le notions of societal peace, on the other. In th is
chapter a number of recent legislative reforms a nd high-profile judgments
illustrate how crimi nal law (and the crimina l sanction) is increasingly
being employed to place limits on speech and ex pression. A comprehensive
statutory framework on hate speech and hate cr imes is, however, still elusive.
The time seems to be r ipe for concrete legislative action in this regard.
During the fi rst half of 2020, the term ‘COVID-19’ became part of global
vocabulary. Events like world wars, catastrophic natural disasters, or
economic calamities suc h as the 2008–2009 fina ncial crisis are of ten described
as historic, in the sense that they change t he course of history. In short:
incredibly disruptive events at the meta- and m icro-levels. Few phenomena
have caused as much disruption and cha nge to literally all aspects of human
existence as the COVID-19 pandemic and the accompanying public- and
private-sector reactions to it. South Af rica has been no exception. In th is
chapter certain legal a nd regulatory responses to t he pandemic, especially
as they pertain to c riminal law, are noted.
A major development for the administration of justice, and t he general
part of crimin al law in particula r, is the change in the age of crim inal
responsibility. The changes brought about by the Ch ild Justice Amendment
Act are discusse d in this chapter. On the topic of chi ldren, it is also noted
that the Constitutional Cou rt has confirmed t hat the common-law defence
of reasonable and moderate parental chast isement is inconsistent with s 10
Criminal LawCriminal Law
* BA LLB LLM LLD (Stell) ILSC (Antwerp); Professor of International Criminal Law,
University of Derby (United Kingdom); Advocate of the High Court of South Africa;
Extraordinary Professor in Public Law, Stellenbosch University. https://orcid.org/0000-0001-
6723-3624.
Gerhard Kemp*
2019/2020 YSAL 434
© Juta and Company (Pty) Ltd
Criminal law 435
https://doi.org/10.47348/YSAL/v1/i1a8
(human dignit y) and s12(1)(c) (the right to be free from all for ms of violence
from either public or private sources) of the Constitution.
Finally, the chapter also deals with rec ent cases concerning genera l
principles of crimin al law (such as the common purpose doct rine) and
specific offences (includi ng road-traffic offences and offences u nder the
Maintenance Act of 1998).
2. LEGISLATION
2.1 AMENDMENTS TO THE FILMS AND PUBLICATIONS ACT 65
OF 1996
Several important amendments to t he Films and Publications Act were
introduced by the Films a nd Publications Amendment Act.1 Many of the
amendments concern the est ablishment and composition of statutory
bodies, procedures of the Film a nd Publication Board, processes regardi ng
the classification of publications, f ilms and games, entering a nd inspection
of premises and facilit ies, and so on. For present purposes atte ntion will be
given to three offences th at are inserted into the Films a nd Publications Act.
Readers will note that the legi slature made sure to avoid any potential
legality problems when the crim inalisation provision s were drafted. Each
provision that creates an offence is coupled with a provision wh ich explicitly
crimina lises the prohibited conduct and explicit provision is m ade for
appropriate penalties. The maxim nullum crimen sine lege; nulla poena sine lege
seems to have been adhered to. It is clear that the k ind of legality challenge2
that befell some of the provisions i n the Criminal Law (Sexual Offences a nd
Related Matters) Amendment Act3 should not be of concern with respect to
the offences created by Act 11 of 2019.
1 11 of 2019 (GG 42743, 3 October 2019, available online at https://www.gov.za/sites/
default/files/gcis_document/201910/42743gon1292.pdf. The Act comes into operation on a
date to be fixed by the president by proclamation in the Gazette. At the time of writing this had
not happened yet).
2 Certain offences created by the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 did not expressly provide for corresponding penalties. There were
2012 (2) SACR 183 (SCA)), but the legislature acted to rectify the situation via the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 6 of 2012. See also the discussion in
Gerhard Kemp et al Criminal Law in South Africa 3 ed (2018) 21–22.
3 32 of 2007.
© Juta and Company (Pty) Ltd
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